P. v. Kimbro

Filed 7/25/06 P. v. Kimbro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Mariposa County. Harry Nicholas Papadakis, Judge. (Retired Judge of the Fresno Sup. Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Jeanne Wolfe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Richard J. Kimbro, pled no contest to six counts of lewd and lascivious conduct with a child under the age of 14 (counts 1-6/Pen. Code, § 288, subd. (a)),^[1] and one count each of indecent exposure (count 7/§ 314, subd. (1)), and possession of more than an ounce of marijuana (count 8/Health & Saf. Code, § 11357, subd. (c)). Kimbro also admitted allegations in counts 1 through 6 that his offenses involved more that one victim within the meaning of sections 667.61, subdivisions (b) and (e) and section 1203.066, subdivision (a)(7), allegations in counts 5 and 6 that he engaged in substantial sexual conduct with the victim in each count, and allegations that he had two prior felony convictions within the meaning of section 1203, subdivision (e)(4). On April 21, 2005, the court sentenced appellant to four concurrent terms of 15 years to life on counts 1 through 4, two concurrent 6-year terms on counts 5 and 6, and a concurrent local term on the indecent exposure offense in count 7.^[2] On appeal, Kimbro contends the court: 1) abused its discretion when it denied his motion to withdraw his plea; and 2) committed Marsden^[3] error. We will find that the court imposed unauthorized surcharges on the restitution and parole revocation fines it imposed and strike these surcharges. In all other respects, we will affirm.

FACTS

The Substantive Offenses

Kimbro married T. K., the victims' mother, in 2000. On July 25, 2004, T. K. contacted the Mariposa County Sheriff's Department to report that Kimbro had been molesting her two daughters, S., who was then 13 years old, and M., who was then 9 years old. During an interview on July 27, 2004, M. stated that sometime after summer vacation began, Kimbro touched her breast and vagina under her clothes and licked her â€