P. v. Alcaron
Filed 3/2/12 P. v. Alcaron CA6
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opinion has not been certified for publication or ordered published for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.
CLEMENTINO ALARCON,
Defendant and
Appellant.
H037232
(Santa Clara
County
Super. Ct.
No. CC962827)
Defendant
Clementino Alarcon sexually penetrated his four-year-old niece on multiple
occasions. He told his fearful niece not
to tell anyone about his conduct. He was
originally charged by information with sexual penetration with a child aged 10
or younger (Pen. Code, § 288.7, subd. (b)) and lewd conduct with a child under
14 (Pen. Code, § 288, subd. (a)). A jury
trial commenced in February 2011. The
information was amended at trial to add a second lewd conduct count. The jury was unable to reach a unanimous
verdict despite lengthy deliberations, and the court declared a mistrial.
The
information was thereafter amended again to add two counts of forcible lewd conduct with a child under 14
(Pen. Code, § 288, subd. (b)(1)).
Defendant entered into a plea agreement under which he would enter
guilty or no contest pleas to the two new counts in exchange for dismissal of
the remaining counts and an agreed sentence of six years in state prison. He entered these pleas, and the court imposed
the agreed term. The six-year sentence
was composed of the three-year lower term for one count and, under Penal Code
section 667.6, subdivision (d), a fully consecutive three-year lower term for
the other count.[1] Defendant timely filed a notice of appeal that challenged only
his sentence.
Appointed
appellate counsel has filed an opening
brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit
written argument on his own behalf but has failed to avail himself of the
opportunity. Pursuant to
have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Duffy, J. *
[1]
There is a mistake on the
abstract of judgment. As to the second
count, the box for “CONSECUTIVE 1/3 VIOLENT” is checked rather than the box for
“CONSECUTIVE FULL TERM.” The correct
number of years appears in the appropriate box for this count on the form, and
the total number of years is correct.
There does not appear to be any need to correct this mistake.
* Retired Associate Justice of the Court
of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
