Filed 4/24/18 P. v. Gonzalez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HERIBERTO RODRIGUEZ GONZALEZ,

Defendant and Appellant.

F075715

(Super. Ct. No. BF166337A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Jared G. Coleman, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-



Appellant Heriberto Rodriguez Gonzalez pled no contest to oral copulation with a minor (Pen. Code, § 288a, subd., (b)(1); count 2) and first degree burglary (§ 460, subd. (a); count 5) and he admitted an allegation that a person was present in the residence during the burglary (§ 667.5, subd. (c)(21)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gonzalez was involved with M.R. in an intimate dating relationship for four or five years, during which they lived together for about a year before breaking up in October 2015. M.R. had a daughter, N.H., and three other children.
A few weeks after the breakup, and after Gonzalez was no longer living at M.R.’s residence, M.R. was in her bedroom when Gonzalez walked in. Gonzalez attempted to hug and kiss her and she pushed him away. After they struggled on the bed and on the ground, Gonzalez had intercourse with M.R. against her will, and left afterwards.
On October 19, 2016, M.R. reported the rape to Bakersfield Police Detective Francisco Esguerra. Esguerra also spoke with M.R.’s daughter, N.H., that day and again in November 2016. N.H reported that in the summer of 2014, when she was 15 years old, Gonzalez began touching her breasts and vagina over her clothing and, in November or December of that year, he had sexual intercourse with her against her will. A few weeks later, when N.H. was helping Gonzalez in his gardening business, he again had intercourse with her against her will. After that incident, she began having consensual intercourse with Gonzalez. The last occasion occurred in August 2016, when N.H. skipped school and went with Gonzalez to a motel where they had intercourse and she performed oral sex on Gonzalez.
On November 8, 2016, Esguerra had M.R. make a pretextual phone call to Gonzalez. During the call, Gonzalez acknowledged that he had forcible intercourse with M.R. in October 2015. Esguerra also had N.H. make a pretextual phone call to Gonzalez during which Gonzalez acknowledged having intercourse with her.
On January 11, 2017, the Kern County District Attorney filed an information charging Gonzalez with unlawful sexual intercourse (§ 261, subd. (a)(2); count 1), unlawful oral copulation (§ 288a, subd. (b)(1); count 2), unlawful intercourse with a minor who was more than three years younger (§ 261.5, subd. (c); count 3), and unlawful sexual intercourse with a minor under the age of 16 (§ 261.5, subd. (d); count 4).
On March 8, 2017, the prosecutor amended the information to add count 5, which charged Gonzalez with first degree burglary (§ 460, subd. (a)) and the allegation that a person was present during the burglary. Gonzalez then entered his no contest plea to burglary and oral copulation in exchange for the dismissal of the remaining counts and a stipulated term of six years eight months.
On April 20, 2017, the court granted Gonzalez’s Marsden motion and appointed substitute counsel.
On May 8, 2017, defense counsel filed a motion to withdraw plea on Gonzalez’s behalf.
On May 16, 2017, the court heard the motion to withdraw plea and a second Marsden motion, and it denied both motions. The court then sentenced Gonzalez to the stipulated aggregate term of six years eight months, the upper term of six years on Gonzalez’s burglary conviction and an eight-month term on his oral copulation conviction (one-third the middle term of three years).
On May 31, 2017, the court granted Gonzalez’s request for a certificate of probable cause and Gonzalez filed a timely appeal.
Gonzalez’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Gonzalez has not responded to this court’s invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.