P. v. Armstrong
Filed 3/5/13 P.
v. Armstrong 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
CHRISTOPHER LEWIS ARMSTRONG,
Defendant and
Appellant.
F064477
(Stanislaus
Super. Ct. No. 1427367)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Linda A. McFadden, Judge.
Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant Christopher
Armstrong pleaded no contest to two felonies based on the sexual assault of two
fourteen-year-old girls. He was
sentenced to the agreed-upon term of 12 years in prison.
On appeal, his appellate counsel
has filed a brief which summarizes the facts, with citations to the record,
raises no issues, and asks this court to independently
review the record. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) We will affirm.
On January
5, 2011, defendant and a friend “picked up two 14-year-old girls to party,â€
identified as Jane Does No. 1 and 2.
“The defendant purchased alcoholic beverages,†which were consumed by
both girls. Defendant and the two girls
were in his car, which was apparently driven by someone else. Jane Doe No. 2 saw defendant commit acts of
digital penetration and oral copulation on Jane Doe No. 1. Jane Doe No. 1 was in the back seat and very
intoxicated.
While still in the vehicle,
defendant touched Jane Doe No. 2’s breasts.
At that point, Jane Doe No. 2 “became frightened for the safety of her
friend in the back seat and yelled to let them go.â€
“Defendant had the car pull over,
exited the vehicle and dragged Jane Doe No. 2 from the car and drove away with
Jane Doe No. 1 in the back seat. The
defendant went to a desolate location and raped Jane Doe No. 1,†causing
injuries to her body. He “orally
copulated her, penetrated her vagina and her anus and beat her, choked her and
then returned to the scene and threw her from the car.â€
On or about
April 6, 2011, an amended complaint was filed which charged defendant with
committing the following offenses on Jane Doe No. 1, a person 14 years of age
or older: count I,
force or fear (§ 261, subd. (a)(2)); count III, sodomy by force
(§ 286, subd. (c)(2)); count IV, oral copulation by force (§ 288a,
subd. (c)(2)); count V, kidnapping for the purpose of rape (§ 209, subd.
(b)(1)); count VI, assault with the intent to commit a sexual act (§ 220,
subd. (a)); and count VII, sexual penetration by force (§ 289, subd.
(a)(1)(A)).
title="">[3] As to counts II, III, and IV, it was alleged
the victim was a minor over 14 years old (§ 667.61, subd. (m)).
In count VIII, defendant was
charged with sexual battery on a restrained person, Jane Doe No. 2, who was 14
years old (§ 243.4, subd. (a)).
Defendant pleaded not guilty and
denied the special allegations.
Change of Plea and Sentencing Hearing
On January
24, 2012, the court stated that it had been informed that defendant would
accept a plea offer, and that he would plead no contest to count II, rape by
force or fear of Jane Doe No. 1; and count VIII, sexual battery on a restrained
person, Jane Doe No. 2, with an agreed sentence of 12 years. Defendant said that was correct. The court asked if defendant wanted to be
sentenced that same day, and defendant said yes.
The court advised defendant of his
constitutional rights, and the consequences of his convictions for sex
offenses. In response to each
advisement, defendant said that he understood and waived his constitutional
rights.
The court asked defendant if he had
enough time to speak to his attorney “and tell him all of the facts and
circumstances about your case here,†and defendant said, “Yep.†The court asked defendant if he was entering
his pleas freely and voluntarily, and that it was his decision. Defendant again said, “Yep.â€
Thereafter, defendant pleaded no
contest to counts II and VIII, and said that he understood the agreed term
would be 12 years, based on the upper term of 11 years for count II and one
year (one-third the midterm) for count VIII.
Both the prosecutor and defense counsel stated their agreement with the
sentencing terms. The court granted the
prosecution’s motion to dismiss the remaining charges and special allegations.
The court found that defendant
understood the nature of the crime, the consequences of his pleas, and his
had knowingly, intelligently, and voluntarily waived those rights. The court also found a factual basis for the
plea based on the prosecutor’s statement, as stipulated to by defense counsel.
The court imposed an aggregate term
of 12 years pursuant to the plea agreement, based on the upper term of 11 years
for count II, and one year (one-third the midterm) for count VIII. The court ordered defendant to register as a
sex offender upon his release from prison.
The court
imposed a $2,400 restitution fine pursuant to section 1202.4, subdivision (b),
and stayed the $2,400 restitution fine under section 1202.45.
The court advised defendant that
since he had pleaded to a violent offense, he would only be entitled to 15
percent credits. Defendant said that he
understood. The court continued the
matter for the probation officer to correctly calculate defendant’s credits.
On February
14, 2012, the court reconvened the sentencing hearing, and stated that
defendant had 405 days of actual credits plus 60 days of good/work time
credits.
On March
12, 2012, defendant filed a timely notice of appeal as to matters which
occurred after the plea; he did not request or obtain a
As noted
filed a Wende brief with this
court. The brief also includes the
declaration of appellate counsel indicating that defendant was advised he could
file his own brief with this court. By
letter on June 20, 2012, we invited defendant to submit additional briefing.
On July 10, 2012, defendant sent a
letter to this court and complained that his appointed appellate counsel kept
telling him “that I can not [sic]
appeal my sentence because I [accepted] a plea.†Defendant stated that he did not know “all of
the terms of the plea because my trial lawyer did not explain them to me.†Defendant further stated that “a plea deal is
supposed to be on the table for 30 days befor[e] it can be accepted,†and his
deal “was not.†Defendant stated his
lawyer “tricked me into taking this deal†instead of proceeding with a
preliminary hearing, and his case should have been dismissed. Defendant asked this court to review his case
and “give me a[] new appeal lawyer.â€
Defendant
did not request or obtain a certificate of probable cause and therefore cannot
challenge the underlying validity of his plea or the agreed-upon term. (People
v. Panizzon (1996) 13 Cal.4th 68, 77-79; People v. Hester (2000) 22 Cal.4th 290, 294-297.) Moreover, the entirety of the plea hearing
demonstrates that the court carefully advised defendant of the nature and
consequences of his plea and the agreed-upon prison term. The court asked defendant whether he had
sufficient time to discuss his case, the plea, and the potential sentence, and
defendant said yes. There is nothing in
the record before this court to even suggest that defendant was “tricked†into
entering no contest pleas to two counts, in exchange for dismissal of the other
six felony sexual offenses and three special allegations.
After
independent review of the record, we find that no reasonably arguable factual
or legal issues exist.
The
judgment is affirmed.
Franson, J.
prosecutor’s statement of the factual basis for the pleas, as stipulated to by
defense counsel.
