P. v.
Filed 1/15/13 P.
v. Celaya 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RALPH LUCAS CELAYA,
Defendant and Appellant.
F064128
(Super. Ct. No. F10905593)
THE COURT
APPEAL from a judgment of the Superior Court of
County. Kristi Culver
Kapetan, Judge.
Randy S.
Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant, Ralph Lucas Celaya, pled
no contest to one count of sexual
penetration by force (Pen. Code, § 289, subd. (a))
enhancement (§ 667, subd. (a)) and allegations that he had two prior
convictions within the meaning of the three strikes law (§ 667, subds.
(b)-(i)).
On
December 9,
2011, the court struck the two strike
convictions and sentenced Celaya to an aggregate, eight-year term.
Following independent review of the record pursuant to
affirm.
FACTUAL AND PROCEDURAL HISTORY
Celaya was married
to the confidential victim for 25 years.
However, when he committed the sexual penetration offense, Celaya’s drug abuse
had caused them to become estranged, and Celaya was living
on the streets. Nevertheless, Celaya occasionally
slept on the victim’s back porch.
On
October 20,
2010, at approximately 1:30 a.m., the victim was lying in bed when she heard Celaya at her front
door. As she got out of bed, she heard
the door open and Celaya come into the house. Celaya came into
the victim’s bedroom and began arguing with her. As the victim attempted to leave, Celaya grabbed her,
pushed her to the ground, and locked the door.
After telling the victim that he was going to “check†her to see if she
was having sex with anyone, Celaya forcibly put his finger in her vagina. When the victim’s daughter knocked on the
door, Celaya let her in. Celaya then began
running around the house, “mumbling that someone was going to die that night,â€
and yelling, “‘Where is he?’†When the
victim said she was going to call 911, Celaya yelled,
“‘There is gonna be two dead people in this house!’†The victim ran back into her bedroom and Celaya left the
residence. Celaya was arrested
on November 2,
2010.
On
December 20,
2010, the district attorney filed an
information charging Celaya with sexual penetration by force (count 1), false imprisonment
(count 2/§ 236), and making criminal threats (count 3/§ 422). The information also alleged a serious felony
enhancement, three prior prison term enhancements (§ 667.5 subd. (b)), and
that Celaya had two prior convictions within the meaning of the three strikes
law.
On
July 20, 2011, Celaya entered his plea as part of a plea bargain that
provided that the court would strike the two strikes and remaining
enhancements, dismiss the remaining counts, and sentence Celaya to a stipulated
eight-year term.
On
October 28,
2011, defense counsel filed a motion to
withdraw Celaya’s plea.
On
November 29,
2011, Celaya filed a
On
December 9,
2011, the court heard and denied Celaya’s
withdraw his plea. Afterwards, the court
struck Celaya’s two strike convictions and sentenced him to the stipulated
eight-year term: the mitigated term of
three years on the forcible sexual penetration offense and a five-year serious
felony enhancement.
On
December 16,
2011, the court issued a
defense counsel filed a notice of appeal in this matter.
Celaya’s 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, supra,
25 Cal.3d 436.) However, in a document
filed on May 2, 2012, Celaya contends he was misled when entered his plea
because: (1) he did not know that he was
pleading to a charge of sexual penetration by force; and (2) he was led to
believe the two prior convictions he admitted both qualified as strike
convictions when only one did because the sentence on one conviction was
stayed. Since these are the same issues Celaya raised in
his motion to withdraw plea, Celaya, in essence, is challenging the trial court’s denial of his motion
to withdraw his plea.
“Section
1018 states in relevant part: ‘Unless
otherwise provided by law, every
herself in open court…. On application
of the defendant at any time before judgment … the court may, and in case of a
defendant who appeared without counsel at the time of the plea the court shall, for a
permit the plea of guilty to be withdrawn and a plea of not guilty substituted…. This section shall be liberally construed to
effect these objects and to promote justice.’
of proof necessary to establish good cause
in a motion to withdraw
a guilty plea is by clear and convincing evidence. [Citations.]
“‘Withdrawal of a
guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed
on appeal absent a showing the court has abused its discretion.’ [Citations.]
“To establish good
cause, it must be shown that defendant was operating under mistake, ignorance,
or any other factor overcoming the exercise of his free judgment. [Citations.]
Other factors overcoming defendant’s free judgment include inadvertence,
fraud or duress. [Citations.] However, ‘[a] plea may not be withdrawn
simply because the defendant has changed his mind.’ [Citations.]â€
(People v. Huricks (1995) 32
Cal.App.4th 1201, 1207-1208.)
Neither
the court nor the change of plea form referred to the charge Celaya pled to as
sexual penetration. Further, during the
change of plea proceeding, the court twice referred to the sexual penetration
offense only as a violation of “Penal Code section 289(a)(1),†including when
it actually took Celaya’s plea. However, Celaya did not ask
any questions regarding what Penal Code section he was pleading to or otherwise
indicate that he did not understand what charge he was pleading to. Further, defense counsel signed an
acknowledgement in the change of plea form that he reviewed the form with Celaya, answered
his questions, and discussed the case with him, including the consequences of
his plea and the elements of the charged offenses. It is reasonable to assume that in doing so,
counsel explained to Celaya that Celaya would be pleading to the sexual penetration count pursuant to his
plea bargain. Thus, the court reasonably
could have found from these circumstances that in entering his plea, Celaya understood
that he was pleading to a charge of sexual penetration by force as alleged in
count 1.
Moreover,
the court did not abuse its discretion when it treated each of Celaya’s two prior
convictions as strikes even if the punishment on one conviction was stayed when
he was originally sentenced on those convictions. In People
v. Benson (1998) 18 Cal.4th 24, the Supreme Court held that an otherwise
qualifying conviction may be treated as a strike even if punishment on the
conviction was stayed pursuant to section 654.
(Benson, at pp. 26-27.) The court did leave open the possibility
that, in some circumstances, prior convictions may be so closely connected,
e.g., when they arise out of a single act, that it would be an abuse of
discretion for the trial court not to strike one. (Id.
at p. 36, fn. 8; see also People v.
Burgos (2004) 117 Cal.App.4th 1209, 1211 [it is abuse of discretion not to
strike one of two prior strike convictions that arose from same act]; but cf.
920, 921 [in such cases, trial court is not compelled to strike one of the
prior convictions].) However, that
situation does not exist here because the trial court struck both of Celaya’s prior
strike convictions. Thus, we conclude
that the court did not abuse its discretion when it denied Celaya’s motion to
withdraw his plea.
Further,
following an independent review of the
record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before Levy, Acting P.J., Kane, J. and Franson, J.
name="_ftn2" title="">[1]All further statutory references are to the Penal Code.
