Filed 3/23/18 P. v. Foster CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY LEE FOSTER,

Defendant and Appellant.


C085471

(Super. Ct. No. CRF17592)





Appointed counsel for defendant Bobby Lee Foster asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will modify the judgment to conform to the plea and affirm the judgment as modified.
I
Between January 2006 and December 2008, defendant sexually abused M.H. (who was 11 years old at the time). Specifically, defendant penetrated M.H.’s vagina with his fingers for a sexual purpose. Between January 2010 and July 2016, defendant had substantial sexual contact with B.F. (born in January 2009), including contact with the victim’s penis and contact between defendant’s penis and the victim’s buttocks. During that same time frame, defendant also had substantial sexual contact with a female victim, M.G. (born in November 2007).
The People charged defendant with three counts of committing a lewd act on a person under age 14 (Pen. Code, § 288, subd. (a) -- counts 1-3), and a single count of attempting to commit a lewd act on a person under age 14 (§ 664/288, subd. (a) -- count 4). The People further alleged, pursuant to section 1203.066, subdivision (a)(8), that defendant engaged in substantial sexual conduct with the minor victims identified in counts 1 and 3.
Prior to the preliminary hearing, defendant pleaded no contest to counts 1 and 3 and admitted the enhancement allegation. In exchange for defendant’s plea, the People agreed they would move to dismiss counts 2 and 4; defendant agreed count 2 would be dismissed with a Harvey waiver. The parties also agreed to a stipulated term of eight years in state prison.
Defendant, representing himself, subsequently filed a motion to withdraw his plea. Defendant argued he was innocent of the charges but was scared and was “bullied” by his public defender into taking the plea. Defendant then retained counsel and his counsel filed another motion to withdraw defendant’s plea pursuant to section 1018. The People opposed the motion.
At the hearing on defendant’s motion to withdraw his plea, defendant’s prior public defender testified that defendant asserted his factual innocence at a prior hearing, and had remained adamant he would not accept a deal until the day he entered his plea. While he did not recall the specifics of his investigation into the charges against defendant, the public defender was confident that an investigation was conducted because that was his standard practice. The public defender had not provided any information resulting from the investigation to retained counsel, but noted he would not share his work product if he did not think it was relevant.
The public defender further testified that he had spoken with the prosecutor who indicated the People intended to file additional charges after the preliminary hearing. Based on the facts alleged, the public defender knew the People could include a charge of sodomy of a minor under the age of 10 (§ 288.7) as well as a “one strike” allegation under section 667.61. The public defender also reviewed the evidence in the file, including the “MDI” interviews.
The public defender had experience with the prosecutor’s office and how that office structures its plea deals. The public defender knew the prosecutor’s best offer was made before the preliminary hearing. After the preliminary hearing, if there were any additional offers, they would not be as favorable as that initial offer.
Defendant also had a conviction record, which included crimes of moral turpitude. Accordingly, were defendant to testify at trial, the People could use those prior convictions to impeach defendant’s testimony.
Taking into account all of this information and experience, the public defender advised defendant that if he did not accept the People’s offer, he was facing a sentence of 45 years to life. The public defender already negotiated the People’s offer from 10 years down to eight years; he advised defendant to take the eight years, otherwise his exposure was too great. The public defender and his supervisor went over the plea form with defendant and discussed his potential defenses.
In response to the court’s questions, retained counsel indicated there was no defect in the taking of the plea agreement, the court’s advisements, or the plea form. But retained counsel argued defendant should be allowed to withdraw from the plea agreement because there was insufficient investigation into the charges and defendant continued to claim factual innocence.
The People countered that defendant entered the plea “willfully, knowingly, and with full possession of his faculties.” Moreover, defendant was advised of his rights prior to entering the plea, by counsel and by the court. Defendant’s “change of mind,” the People argued, did not “establish good cause” to allow him to withdraw from the plea.
The trial court agreed that just because defendant may have “felt put upon in making this plea is not in and of itself grounds for this court to allow him to withdraw it.” The trial court said defendant was represented by competent counsel who, based on the evidence, determined defendant’s exposure at trial was “substantially worse,” and thus advised defendant to take the plea. The trial court found it compelling that, other than the victims, defendant would likely have been the only witness and his viability as a witness was diminished by his prior convictions. The trial court also found defendant was properly advised of his constitutional rights and there was no violation of the plea agreement. Accordingly, the trial court denied defendant’s motion.
The trial court sentenced defendant to eight years in state prison, consistent with the terms of the plea agreement, but it did not dismiss counts 2 and 4. The trial court ordered defendant to pay various fines and fees, ordered him to submit to AIDS testing pursuant to section 1202.1, and awarded him 141 days of presentence credit.
The trial court granted defendant’s request for a certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.
Our independent review of the record indicates that the trial court did not dismiss the balance of the pending charges (counts 2 and 4) as contemplated in the negotiated plea agreement. We will modify the judgment to dismiss counts 2 and 4 to conform the judgment to the plea.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to dismiss count 2 (with a Harvey waiver) and count 4. The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment reflecting the judgment as modified and shall deliver the amended abstract of judgment to the Department of Corrections and Rehabilitation.



/S/
MAURO, J.



We concur:



/S/
BLEASE, Acting P. J.



/S/
BUTZ, J.