Filed 11/19/18 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY JOSHUA PEREZ,
Defendant and Appellant.
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E070162
(Super.Ct.No. RIF1600109)
OPINION
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APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant, Anthony Perez, pled guilty to committing a lewd act on a minor more than 10 years younger than he, oral copulation, possession of images depicting a minor engaging in a sex act, and two counts of sexual intercourse with a minor prior to preliminary hearing, pursuant to Penal Code section 859a. He was sentenced to two years in prison, which was ordered to run consecutive to the term imposed by the San Bernardino Superior Court in a case involving similar charges and appealed.
Background
In January 2016, defendant was charged by complaint with unlawful sexual intercourse with a minor (Pen. Code § 261.5, subd. (c), count 1), digital penetration (§ 289, subd. (h), count 2), oral copulation on a minor (§ 288a, subd. (b)(1), count 3), possession of matter depicting a minor engaging in a sex act (§ 311.11, subd. (a), count 4), and employing or using a minor to pose for media involving sexual conduct (§ 311.4, subd. (c), count 5). All the offenses involved a victim identified as L.G.
On October 31, 2017, after numerous continuances, the People amended the complaint. As amended, count 1 charged a lewd act on a minor more than 10 years younger than defendant, involving victim T.M. (§ 288, subd. (c)(1), count 1); oral copulation committed on minor L.G. (§ 288a, subd. (b)(1)); possession of matter depicting a minor engaging in a sex act (§ 311.11, subd. (a), count 3); unlawful sexual intercourse with a minor involving victim A.G. (§ 261.5, subd. (c), count 4); and unlawful sexual intercourse with a minor involving victim C.P. (§ 261.5, subd. (c), count 5.)
Pursuant to a plea bargain, defendant pled guilty to all charges, based on the People’s agreement that he would receive a prison sentence of two years, to run consecutive to a San Bernardino case of which he had been convicted, case number FWV1500812. On February 2, 2018, defendant was sentenced in accordance with the plea agreement: the court imposed consecutive terms of 8 months each for counts 1 through 3, and concurrent terms of 16 months each for counts 4 and 5. On March 12, 2018, defendant appealed.[1]
Discussion
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we examined the record to determine whether defendant’s guilty plea was knowingly, intelligently, and voluntarily made. To prevail on such a claim, the record must reveal on its face that defendant was aware of the three major constitutional rights being waived, to wit: the right to trial by jury, the right to confront accusers, and the privilege against self-incrimination. (In re Tahl (1969) 1 Cal.3d 122, 132.)
In making his guilty plea, defendant executed a change of plea form, initialing the lines that incorporated the advisals of rights. Defendant gave an affirmative response when asked if he had read the form, understood it, and gone over it with his attorney. Defendant’s affirmative responses on the record show defendant was aware of his rights and he was voluntarily making the plea.
Although defendant states in his request for certificate of probable cause that his attorney never visited him or answered his phone calls, we have noted that the same attorney represented defendant in both this case and the San Bernardino County case, case number FWV1500812 (E068741, filed 7/19/2017), and that counsel made numerous appearances with defendant over the lengthy course of this case, as it trailed the San Bernardino County case. In any event, lack of frequent visits would not mean counsel’s representation was ineffective. (People v. Cole (2004) 33 Cal.4th 1158, 1192; People v. Silva (1988) 45 Cal.3d 604, 622.)
Defendant also complains that his attorney informed him that if he went to trial, he would get convicted, and did not “bother to explore areas that could have helped” defendant. It is the duty of an attorney to explain the risks of trial to a client, as well as his informed opinion as to what plea should be entered. (Von Moltke v. Gillies (1948) 332 U.S. 708, 721-722 [68 S.Ct. 316, 92 L.Ed. 309]; In re Alvernaz (1992) 2 Cal.4th 924, 933.) Counsel’s representation would have been ineffective if he had not discussed the downsides of going to trial, particularly after defendant had been recently convicted of similar crimes in another case.
Defendant also suggests that he only had seconds to think about and respond to the plea bargain, but there is nothing in the record to support that statement. Absent an adequate record, we cannot reach the claim. This same lack of a record precludes review of defendant’s claim that his counsel was ineffective for not investigating the possibility that the Fontana Police Department had taken items connected with this case without a warrant. Without a record demonstrating otherwise, the claim must be rejected on appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–268.)
Finally, we reviewed the sentence to determine whether an arguable issue could be raised regarding the imposition of consecutive, versus concurrent sentences. In this respect, we observe that the guilty plea was based upon a sentence bargain, and in such cases, the trial court has no authority to agree to a disposition different from that agreed upon by the parties. (People v. Orin (1975) 13 Cal.3d 937, 942-943.) A plea agreement is a contract, and when a guilty plea is entered in exchange for specified benefits, such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
Here, the two-year sentence agreement spared the defendant from the risk of receiving additional punishment on counts 4 and 5, and the record does not show the plea bargain was invalid.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPOERTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
RAPHAEL
J.
[1] On April 2, 2018, defendant filed a second amended notice of appeal, challenging the validity of his guilty plea; a certificate of probable cause was issued on April 3, 2018.