Filed 1/30/18 P. v. Costa CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MARTIN COSTA, Defendant and Appellant.

H044814 (Santa Clara County Super. Ct. No. B1686168)

Martin Costa appeals a 21-year prison sentence imposed after he pleaded no contest to three counts of committing lewd acts on a child by force. (Pen. Code, § 288, subd. (b)(1).) Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant did not file written argument.

We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440–441.) We include here a brief description of the facts and procedural history of the case as well as the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123–124.) Finding no arguable issue, we will affirm the judgment.

I. Trial Court Proceedings

According to the probation report prepared for sentencing, defendant and his sister lived in a trailer residence in Palo Alto. The sister’s two daughters (referred to in the probation report as Jane Doe #1 and Jane Doe #2) spent weekends at the trailer. Then seven-year-old Jane Doe #1 told a friend at school about defendant having sex with her. The friend’s mother contacted school officials, who contacted the police.

Jane Doe #1 described that on more than four occasions defendant exposed his erect penis and made Jane Doe #1 touch it with her hand. She said defendant touched her vagina with his finger, his tongue, and his penis. She reported that defendant put his penis into her vagina and they “had sex.” She also stated that defendant had engaged in similar sexual acts with her six-year-old sister Jane Doe #2. Jane Doe #2 described that defendant had also touched her vagina with his fingers and put his penis into her vagina, and she corroborated Jane Doe #1’s account.

Jane Doe #1 stated that on one occasion when defendant was touching her in the trailer’s bedroom, she left the room without any clothes on. Her mother became angry and asked the defendant, “Did you fuck my daughters?” The mother reportedly told her daughters not to tell anyone about the touching incidents because she did not want defendant to go to jail.

Defendant was charged with two counts of sexual intercourse or sodomy with a child under 10 years of age (Pen. Code, § 288.7, subd. (a)); two counts of oral copulation or sexual penetration of a child under 10 years of age (Pen. Code, § 288.7, subd. (b)); and one count of lewd or lascivious acts on a child by force (Pen. Code, § 288, subd. (b)(1)). As part of a negotiated disposition, the prosecution amended the complaint to add two more Penal Code section 288, subdivision (b)(1) counts; defendant then pleaded no contest to the three Penal Code section 288, subdivision (b)(1) counts (one with Jane Doe #1 as the victim, and two with Jane Doe #2 as the victim). The parties agreed to a 21-year determinate prison sentence, and the prosecution agreed to move to dismiss all other counts at sentencing.

The trial court sentenced defendant to 21 years in state prison, consisting of two fully consecutive eight-year middle terms for two of the Penal Code section 288, subdivision (b)(1) convictions, and the low term of five years for the third Penal Code section 288, subdivision (b)(1) conviction. (Pen. Code, § 667.6, subds. (d), (e) [requiring consecutive terms for specified sex offenses].) The court dismissed the other charged counts per the parties’ agreement. The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)) with an additional suspended $300 parole revocation fine (Pen. Code, § 1202.45); a $120 court operations assessment (Pen. Code, § 1465.8); a $90 court facilities funding assessment (Gov. Code, § 70373); and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550–29550.3). The court ordered defendant to register as a sex offender (Pen. Code, § 290) for the rest of his life. The court did not impose the Penal Code section 290.3 fine because it found defendant did not have the ability to pay. Defendant received 460 days of presentence credit, based on 400 actual days and 60 days’ conduct credit (Pen. Code, § 2933.1).

We have reviewed the entire record and find no arguable issue.

II. Disposition

The judgment is affirmed.