P. v. Ascenio
Filed 9/15/08 P. v. Ascenio CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. JOSE ROBERTO ASENCIO, Defendant and Appellant. | B201271 (Los Angeles County Super. Ct. No. NA066791) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Asencio was charged by information with four counts: two counts of aggravated sexual assault of a child (Pen. Code, 269, subd. (a))[1](counts 1 and 2[2]); and two counts of forcible lewd act upon a child under the age of 14 years ( 288, subd. (b)(1)) (counts 3 and 4). The information specially alleged as to each count that Asencio had inflicted great bodily injury under section 12022.8.
The jury convicted Asencio of the aggravated sexual assault charge in count 1 and the forcible lewd act charges in counts 3 and 4. The jury found true the special allegation of the infliction of great bodily injury as to those counts. Asencio was acquitted of the aggravated sexual assault charge in count 2.
The trial court sentenced Asencio to an aggregate state prison term of 28 years to life, consisting of the indeterminate term of 15 years to life for the aggravated sexual assault offense charged in count 1, plus five years for the section 12022.8 enhancement; and a consecutive term of eight years (the upper term) for the forcible lewd act offense charged in count 3. Sentences on the forcible lewd act offense charged in count 4 and the accompanying section 12022.8 enhancement were stayed as merged into count 1 pursuant to section 654.[3]
Asencio timely appealed. In People v. Asencio (L.A.S.C. case No. NA066791), we reversed the judgment as to counts 3 and 4 for insufficient evidence of force or duress. Accordingly, we ordered that the convictions as to those counts be modified to reflect convictions of the lesser included offense of committing a nonforcible lewd act ( 288, subd. (a)), and remanded for resentencing as to counts 3 and 4. (People v. Asencio (Feb. 21, 2007, B189496) [nonpub. opn.].)
At the new sentencing hearing, the trial court sentenced Asencio to an aggregate state prison term of 22 years to life consisting of the indeterminate term of 15 years to life for the aggravated sexual assault offense charged in count 1, plus five years for the section 12022.8 enhancement; plus two years (one-third the middle term of six years) for the nonforcible lewd act offense of count 3. Sentencing on count 4 and the accompanying enhancement remained stayed and the sentence imposed on count 1 was unchanged.
After resentencing, Asencio filed a timely notice of appeal, and we appointed counsel to represent him. After examination of the record counsel filed an Opening Brief in which no issues were raised. On October 11, 2007, we advised Asencio he had 30 days within which to personally submit any contentions or issues he wished us to consider.
On November 29, 2007 we received a typed supplemental brief in which Asencio argued the evidence was insufficient to support his aggravated sexual assault conviction on count 1 and, in a related issue, both trial and appellate counsel had rendered ineffective assistance. We concluded Asencio had raised potentially meritorious issues, requested the parties to submit supplemental briefing on those issues, and vacated the submission order in this case.
New appellate counsel, David H. Goodwin, was appointed for Asencio. Mr. Goodwin determined it would be more appropriate to raise the potentially meritorious issues by a petition for writ of habeas corpus and has filed a petition that is being separately considered by this court. In addition to considering Asencios arguments, we have examined the entire record. We are satisfied Asencios new appellate counsel has fully complied with the responsibilities of counsel and no arguable
issues exist that can be resolved through direct appeal in this case. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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[1] Statutory references are to the Penal Code.
[2] The predicate offense for count 1 was forcible penetration with a foreign object (finger) in violation of section 289, subdivision (a). ( 269, subd. (a)(5).) The predicate offense for count 2 was forcible rape in violation of section 261, subdivision (a)(2). ( 269, subd. (a)(1).)
[3] Count 4, like count 1, pertained to Asencios use of his finger to penetrate the victims vagina.
