P. v. Oranday

P. v. Oranday

Filed 9/26/08 P. v. Oranday CA6

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ALBERTO ORANDAY, Defendant and Appellant.

H032795 (Santa Clara County Super. Ct. No. CC643849)

Defendant Alberto Oranday was charged in an information in Santa Clara County with five counts of forcible lewd and lascivious acts with a child (Pen. Code 288, subd. (b)(1)) and one count of aggravated sexual assault of a child (Pen. Code 269).

On August 29, 2007, defendant entered into a plea disposition under which the prosecutor amended count 6 to an additional charge of Penal Code 288, subdivision (b)(1), and defendant pleaded guilty to all six counts in return for a top/bottom sentence of 18 years in state prison.

On October 25, 2007, defendant appeared for sentencing. The court imposed the agreed-upon sentence, representing the lower term of three years for each offense with full consecutive sentences for each count, totaling 18 years. Later that day, when the court reconvened to repeat the morning sentencing process with a Spanish interpreter, defendant stated that he wanted to fire his private attorney and fight the case. The court relieved counsel, vacated the sentence and referred the matter to the public defenders office to determine whether defendant was qualified for its services.

The public defenders office appeared with defendant on November 1, 2007, and the case was set for November 29, 2007, for further proceedings. At that court appearance, defendant requested a hearing to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court conducted an in camera hearing, denied the motion and set the matter for a motion to withdraw plea.

Prior to the date set for the hearing on the motion to withdraw plea, the public defenders office declared a conflict and new counsel was appointed. On March 10, 2008, the motion was heard and denied. The court then imposed the 18-year sentence pursuant to the earlier disposition.

Defendant filed a timely notice of appeal on April 3, 2008, challenging the sentence and other matters occurring after the plea, as well as the validity of the plea. A second notice of appeal was filed on his behalf on April 18, 2008, challenging the validity of the plea and requesting a certificate of probable cause based on the grounds raised in the motion to withdraw plea. The request was denied.

STATEMENT OF FACTS[1]

The victim, five-year-old A., told her relatives that defendant, whom she regarded as grandpa, had sexually molested her six times in the garage of the residence shared by A., her mother (the adopted daughter of defendant and his wife) and defendant. In all six incidents (occurring in 2005 and 2006) defendant removed A.s pants and underwear. On three occasions, he inserted his finger or fingers in her vagina; once, he orally copulated her; another time, he put his tongue inside her mouth; and on the final incident, he made her touch his penis. He told her not to tell anyone or she would get in trouble. In an interview with the police, after being fully advised of his rights, defendant made admissions of lewd acts with the child consistent with the charges against him.

DISCUSSION

We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues.

We have notified defendant of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no written argument from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.)

DISPOSITION

The judgment is affirmed.

McAdams, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Duffy, J.

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People v. Oranday

H032795

[1] Because defendant entered pleas of guilty, the factual summary is drawn from the preliminary hearing and the probation report.