P. v. Davis

Filed 8/29/06 P. v. Davis CA1/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Counsel for appellant Tommy Neal Davis (appellant) has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

A first amended criminal complaint was filed by the Lake County District Attorney’s Office on January 6, 2006, charging appellant with two counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a))^[1], and one count of distribution or exhibition of lewd material to a minor (§ 288.2, subd. (a)). As to the section 288, subdivision (a) violations, the amended complaint also alleged three special allegations, including that: (1) appellant used force or threat of violence to accomplish the acts, within the meaning of section 1203.066, subd. (a)(1); (2) the acts with the victim constituted substantial sexual contact, within the meaning of section 1203.066, subd. (a)(8); and (3) the contact was accomplished with the use of obscene material (§ 1203.066, subd. (a)(9)). The complaint further alleged as sentencing enhancements that appellant had suffered two prior prison terms within the last five years, within the meaning of section 667.5, subdivision (b).

Appellant initially pleaded not guilty to the complaint, but changed his plea on January 20, and pleaded guilty to all three counts, admitted the latter two special allegations attached to the section 288, subdivision (a) counts, and admitted both prior prison terms. In return for his plea, the prosecutor dismissed the force or violence special allegation (§ 1203.066, subd. (a)(1)). At the time his plea was entered, appellant was advised of the constitutional rights he was waiving by pleading guilty, all of which he voluntarily and knowingly waived. His counsel also stipulated that there was a factual basis for the plea. Sentencing was set for February 17.

Before sentencing, appellant filed a motion under People v. Marsden (1970) 2 Cal.3d 118, seeking a substitution of counsel. The Marsden motion was heard by the court on February 17. Appellant’s complaints about counsel centered around the infrequency with which his counsel met with appellant, and appellant’s alleged misunderstanding as to the potential length of the sentence he faced by pleading guilty. After allowing defense counsel to respond to appellant’s complaint, the court denied the motion to relieve defense counsel. We find that the court’s ruling was not an abuse of discretion.

Sentencing took place on February 24. After allowing counsel for both sides an opportunity to be heard, the court sentenced appellant as follows: (1) the upper, or aggravated, term of eight years for the first count of the section 288, subdivision (a) violation; (2) the upper, or aggravated, term of eight years for the second count of section 288, subdivision (a) violation, all but two years of which were stayed, (3) the aggravated term of three years for count three (§ 288.2, subd. (a)), all but eight months of which were stayed, and (4) one year for each of the two prior prison term enhancements (§ 667.5, subd. (b)), which appellant admitted. All terms were ordered to be served consecutively for a total aggregate state prison term of 12 years 8 months.

In choosing the aggravated terms, the court found as aggravating factors that the crimes were committed when appellant took advantage of a position of trust, appellant’s prior convictions were numerous and increasing in seriousness, and his prior performance on probation and parole were poor. The court also found one mitigating sentencing factor present (an early admission of guilt), but gave it little weight in light of the reduction in charges offered as an inducement for his plea.

In deciding to impose consecutive sentences, the court stated its reasons for doing so included the fact that the crimes were independent of each other and occurred at separate times and places, and that they were carried out through the use of threats of violence.

We discern no error in the sentencing or plea disposition. The sentencing choices made by the trial court were supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel. Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1] All further statutory references are to the Penal Code, unless otherwise indicated.