P. v. Marsic

Filed 6/30/08 P. v. Marsic CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant John William Marsic (Appellant) appeals from a final judgment and sentence following his plea of no-contest to a violation of Penal Code section 288.5, subdivision (a).[1] Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the judgment and sentence of the trial court.

Procedural Background

The District Attorney of Sonoma County filed a first amended information on March 26, 2007, charging appellant with several felony offenses. Count I alleged that on or about September 2004, through the 15th day of September 2006, in the County of Sonoma, appellant unlawfully engaged in three and more acts in violation of section 288.5, subdivision (a) in that he did unlawfully engage in three and more acts in violation of section 288 with JANE DOE, a child under the age of 14 years. Count II further alleged that on or about the 16th day of September 2006, through the 10th day of October 2006, appellant did violate section 288, subdivision (a), in that defendant did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members of JANE DOE, a child under the age of fourteen years, with the intent of arousing the lust, passions, and sexual desires of the said defendant and the said child.

Appellant was arraigned on the amended information on March 26, 2007, and entered a plea of no contest to Count I, with the prosecution agreeing to dismiss Count II on condition that the trial court could consider all misconduct contained in the police reports at the time of sentencing. On May 23, 2007, appellant was committed to state prison for a 90-day diagnostic pursuant to section 1203.03. On October 25, 2007, the court conducted a sentencing hearing at which appellant called Doctors Alvarez and Cushing, psychologists in the field of psychosexual disorders, to testify. At the conclusion of the evidentiary portion of the hearing, Defense counsel argued for a grant of probation but in the event that probation was not within the contemplation of the court, a low term sentence of 6 years prison was more than appropriate. The trial court denied appellants request for probation. After weighing the sentencing factors set forth in California Rules of Court, rule 421, the trial court committed appellant to state prison for the mid term of 12 years, with credit for 418 days of pretrial confinement. The court also ordered appellant to pay restitution to the victim in the amount as determined by the victims compensation board pursuant to section 1202.4, and imposed a restitution fine in the amount of $2400.00.

After the sentencing hearing, appellants counsel submitted two letters to the trial court requesting recall of the sentence based upon an assertion of sentence disparity with respect to similar Sonoma County cases. Appellant filed a timely notice of appeal on December 17, 2007.

Facts[2]

On October 10, 2006, Sonoma County Sheriffs deputies were dispatched to a Sonoma elementary school to investigate a report of ongoing inappropriate sexual contact between Appellant, John Marsic, and seven year old Jane Doe. When law enforcement officers arrived at the school, Janes father (hereinafter Father), informed them that appellant had inappropriately touched his daughter on numerous occasions. Father explained that appellant, a long time family friend referred to by family members as Uncle John, had been giving Jane computer skills lessons at Does home. On the evening of October 8, 2006, Father noticed that Jane was misbehaving and in an effort to modify her behavior, he told her was going to discontinue her computer sessions with appellant. When Jane failed to display any reaction to the cessation of her lessons, Father began to question Jane about her sessions with appellant. In response to her fathers inquiry, Jane informed him that appellant had been touching her vagina with his hand, tickling her crotch and rubbing his knee against that same area of her body while she sat on his lap. Doe, seven years of age at the time she reported appellants conduct to her father, said this behavior began when she was four to five years old.

On October 24, 2006, Doe was interviewed at the Redwood Childrens Center. During the interview, Doe informed authorities that appellant had first touched her crotch and her butt when she was four years old. When given drawings of a female subject, Doe circled the vagina and buttocks areas to demonstrate where on her body appellant had touched her. Doe also described instances, while swimming at appellants pool, where Marsic touched her crotch over her swim suit and other times when he moved her swimsuit to the side and then touched her bare crotch with his hand. Doe estimated that appellant touched her approximately ten times in his pool.

Doe also described an incident where appellant undressed in front of her and another time when he took her by the hand into the bathroom at her grandmothers house, removed his clothing and showed her white foam emanating from his penis.

According to Doe, appellant explained that his penis did that when he got excited.

Doe also related to personnel at the Redwood Childrens Center that appellant would often touch her while she sat on his lap during computer time he would type with one hand and touch her crotch with the other. Doe demonstrated the touching by placing a doll on her lap and then mimicked typing with her left hand and touching the right leg and vaginal-area on the doll. Doe related that most times, appellant would touch her over her clothing, but there were also times when appellant slid his hand underneath her clothing during computer time. Doe estimated that appellant touched her crotch approximately 1000 times and this happened every time they had computer time together.

Appellant was interviewed by Sonoma County Sheriffs deputies and explained to them that his inappropriate touching of Doe began in the summer of 2006 while he was teaching her to use the computer. Appellant admitted to touching Does vagina on the outside of her clothing. Appellant related that this conduct took place on approximately 10 separate occasions.

Discussion

As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellants counsel has filed a Wende brief raising no arguable issue. Counsel informed appellant of his right to file a supplemental brief and appellant filed with this court a handwritten document entitled supplemental brief on June 11, 2008. In his supplemental brief, Appellant contends that the trial court committed error in two specific instances. First, appellant argues that the trial court failed to properly exercise its discretion in sentencing him to a 12 year, mid term, state prison commitment. Second, appellant asserts that his sentence should be overturned due to sentencing disparities arising from a comparison of appellants sentence with that of similarly situated defendants sentenced by judges in Sonoma County.

At the outset we note that thenotice of appeal in this matter raised no challenge to the validity of the plea.As required, we have reviewed the entire record for potential error and in doing so we have considered appellants assertion of sentencing error in this matter. We conclude that the trial courts sentencing decision was well within its discretion. (See People v. Trausch (1995) 36 Cal.App.4th 1239, 1247 [trial court is vested with abundant discretion in sentencing and an abuse will befound only where the sentencing choice is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered].) Additionally, the record discloses no factual or legal support for appellants claim of sentencing disparity. (See People v. Rhodes (2005) 126 Cal.App.4th 1374, 1383-1384 [The first prerequisite to a meritorious claim under the equal protection clause is a showing that . . . [] . . . [] . . . similarly situated groups have been treated in an unequal manner [under] the sentencing laws].)

Finally, the abstract of judgment reflects that appellant received pre-sentence custody credits in compliance with statutory dictates.[3]

DISPOSITION

Having reviewed the entire record for potential error, we find none.

Accordingly, the judgment and sentence imposed by the trial court are affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] Further statutory references are to the Penal Code unless otherwise noted.

[2] When appellants plea was accepted, the parties stipulated to a factual basis without referencing the precise basis for the plea. The preliminary hearing in this case was waived. Accordingly, this summary is taken from the Circumstances portion of the Felony Presentence Report. No objection was lodged with respect to the Felony Presentence Report at the sentencing hearing. (See People v. Holmes (2004) 32 Cal.4th 432, 443 (failure of trial court to ascertain a factual basis for the plea is harmless error where the contents of the record support a finding of a factual basis for the conditional plea]; see also People v. Mickens (1995) 38 Cal.App.4th 1557, 1565 [trial courts failure to ascertain factual basis for plea was harmless error because an adequate factual basis for the plea could have been established from the probation report].)

[3] To the extent appellant asserts error arising from the trial courts failure to grant his request for recall under section 1170, subdivision (d), we find his assertion unavailing. Section 1170, subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence but only permits the trial court to recall a sentence on its own motion. (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) Therefore, appellant cannot assert error based upon the trial courts failure to act upon appellants requests for recall.