P. v. Garcia
Filed 12/16/13
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NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
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face="Times New Roman">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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
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IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
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THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTHONY GARCIA,
Defendant
and Appellant.
E058245
(Super.Ct.No.
FVI1202684)
OPINION
APPEAL from the Superior
Court of San Bernardino County. Eric
N. Nakata, Judge. Affirmed.
Martin Kassman, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Respondent.
face="Times New Roman"> On the evening of October 12, 2012, the victim went to a party at her friend William Bishop’s residence
with her brother, sister, and another friend.
Around 10 people were at the party; they were drinking for several hours
and playing drinking games. At some
point during the evening Bishop cut off the victim’s consumption of alcohol
because he believed she had drank too much; he carried her to his bedroom where
he placed her on the bed.
The
victim testified she was intoxicated and fell asleep. She awoke to find defendant having sexual
intercourse with her; her pants were down to her ankles. Her brother walked into the bedroom. Defendant began digitally penetrating the
victim. The victim informed defendant
she had to check on her brother; she got up and walked out of the bedroom.
The victim’s brother informed law enforcement he had
walked into the bedroom and saw defendant lying on the bed with the victim
manipulating her vagina with his fingers.
The victim’s brother left the room upset because he initially believed
the encounter was consensual. However,
the victim later advised him she had been sexually assaulted. He tried to go back to the apartment to
confront defendant, but the door was locked.
Bishop informed the investigating officer he worked with
the defendant and invited him to the party.
He said the victim was intoxicated and he had offered her his room for
her to lie down. Once Bishop found out
what had happened to the victim, he attempted to return to his apartment, but
the front door was locked. Defendant had
apparently fled out the back door.
The
victim testified she had never before met defendant; the only prior contact she
had had with defendant was greeting him earlier that evening. After she left the bedroom, she informed her
brother and sister what had happened; she then went home. The next day she went to the hospital where a
nurse conducted a sexual assault examination on her.
After waiving his Miranda
invited to the party by Bishop. He
drank, played drinking games, and later went into Bishop’s bedroom where he saw
the victim passed out on the bed.
Defendant did not know the victim.
Defendant said he laid down on the bed next to the victim, tapped her,
cuddled her, talked to her, kissed her, and fingered her. Defendant believed the encounter was consensual
and denied any penile penetration.
On November 7, 2012, the People
filed an information
charging defendant with rape of an unconscious person (count 1 – Pen. Code, §
261, subd. (a)(4))
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subd. (d)). On January 10, 2013,
defendant pled guilty to the count 2 offense in return for an agreed upon three-year
probationary term requiring, among other terms, service of 365 days in jail, lifetime
registration as a sexual offender, and submission to an HIV test. As part of the taking of defendant’s plea,
the court asked defendant, “Do you understand that in addition to any other
punishment, that you will be required to pay a mandatory restitution fine of
not less than $280 nor greater than $10,000, and subject to a penal fine of up
to $10,000.†As part of his plea,
defendant waived any right to appeal the judgment in his case. The court dismissed count 1.
face="Times New Roman">The probation report prepared in advance of defendant’s sentencing
recommended a probationary term requiring defendant pay a $280 restitutionary
fee. On February 7, 2013, the court sentenced defendant to three years probation with credit
for 116 days. The court ordered
defendant pay a mandatory restitution fine of $280 pursuant to section 1202.4,
subdivision (b)(1).
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Sentence against him . . . .â€
After defendant filed the notice of appeal, this court
appointed counsel to represent
defendant. Counsel has filed a brief
under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a
statement of the case, a brief statement of the facts, and identifying one
potentially arguable issue: whether the
trial court abused its discretion in imposing a mandatory restitution fine of
$280, rather than $240 which was the operative minimum fine effective on the
date of the offense to which defendant pled.
face="Times New Roman">We offered defendant an opportunity to file a personal supplemental
brief, but he has not done so. Under
(2006) 40 Cal.4th 106, we have conducted an independent review of the record
and find no arguable issues. (
object to amount of restitution forfeits any contention on appeal fine was
violative of ex post facto principles.].)
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">CODRINGTON
face="Times New Roman"> J.
We
concur:
RAMIREZ face="Times New Roman">
P. J.
RICHLI face="Times New Roman">
J.
name="_ftn1" title=""> face="Times New Roman">face="Times New Roman">[1] Defendant stipulated the
factual basis for his plea was contained within the police report, the
preliminary hearing, and the information; thus, we take our facts from those
sources.
name="_ftn2" title=""> face="Times New Roman">face="Times New Roman">[2] Miranda v.
