Filed 1/26/18 P. v. Virak CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Mathew Lewis Virak appeals from a judgment after he pleaded no contest to lewd or lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)),[1] possessing, publishing, producing matter depicting a person under the age of 18 engaging in or simulating sexual conduct (§ 311.11, subd. (a)), and lewd or lascivious acts by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b)). Appointed appellate counsel has filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d. 436 (Wende) on behalf of defendant. Defendant was notified of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. We affirm the judgment.

I.Factual and Procedural Background

The victim was 13 years old and the younger sister of defendant’s girlfriend. In early March 2016, defendant, his girlfriend, and the victim were watching a movie. After the girlfriend fell asleep, defendant touched the victim’s buttocks and rubbed his hands on her body. About a week later, defendant, his girlfriend, and the victim were again watching a movie. After both the victim and his girlfriend fell asleep, defendant began touching the victim and pulled her pants down. Though the victim woke up, defendant believed that she was still asleep and began touching her inappropriately on her buttocks, looked down the front of her pants, put his hands under her shirt, grabbed her breast, and inserted his finger into her vagina and moved it “back and forth.” Defendant also took 10 to 12 photos of the victim with her pants down, including photos of her buttocks and of his finger in her vagina.

In March 2016, defendant was charged in a felony complaint with: aggravated sexual assault of a child under the age of 14 and seven or more years younger than defendant (§ 269 - count 1); lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a) - count 2); and possessing, publishing, producing matter depicting a person under the age of 18 engaging in or simulating sexual conduct (§ 311.11, subd. (a) - count 3).

In September 2016, the prosecution brought a motion to amend the complaint to add count 4 which charged defendant with lewd or lascivious acts by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b) - count 4). Pursuant to the negotiated plea agreement, defendant would plead no contest to counts 2, 3, and 4 of the amended complaint and be sentenced to 12 years in prison.

Defendant signed and dated an advisement of rights, waiver, and plea form. In response to questioning by the trial court, defendant stated that he understood the consequences of his pleas as described in this form. The trial court advised defendant of his rights to a preliminary hearing, to a jury trial, to cross-examine witnesses, to testify, to present a defense, and to remain silent. Defendant stated that he understood his rights and waived them. The trial court also advised defendant of the consequences of his pleas and defendant indicated that he understood. Both the prosecutor and defense counsel stipulated to a factual basis for the pleas. Defendant pleaded no contest to counts 2, 3, and 4.

On November 2, 2016, the sentencing hearing was held. The trial court imposed: the upper term of 10 years for count 4; a consecutive term of one-third the middle term of two years for count 2; and a concurrent term of two years for count 3. Defendant received a total of 265 days of credit.

Though defendant had initialed item 18 on the waiver form, which stated that he did not contest his ability to pay fines and fees, the trial court asked defense counsel whether defendant had the ability to pay fines and fees. Defense counsel stated that defendant did not have the ability. The trial court imposed: a $300 restitution fine with an additional restitution fine of $300 imposed but suspended; a court security fee of $120; and a $90 criminal conviction assessment. The trial court did not impose a $259.50 criminal justice administration fee, a $300 fine under section 290.3, or an AIDS education fine based on defendant’s inability to pay.

The trial court dismissed count 1.

On November 4, 2016, defendant filed a timely notice of appeal.

Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.

II.Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Premo, Acting P. J.

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Grover, J.