P. v. McDonald

 

 

 

 

 

 

 

 

 

Filed 9/9/13  P.
v. McDonald 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   DONTE DARNELL MCDONALD,   Defendant and Appellant.

F065081   (Kings Super. Ct. No. 12CM0058)     >OPINION

 

>THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County.  Thomas DeSantos, Judge.

            Deborah
Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

            Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

-ooOoo-

>INTRODUCTION

Appellant/defendant Donte Darnell
McDonald pleaded guilty to failing to provide true registration information
(Pen. Code,href="#_ftn2" name="_ftnref2"
title="">^[1] § 290.015, subd. (a)), and admitted one
prior strike conviction (§ 667, subds. (b)-(i)).  He was sentenced to a second strike term of
32 months.  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 affirm.

>FACTShref="#_ftn3" name="_ftnref3" title="">^[2]>

In 2000, defendant was convicted of
assault with the intent to commit rape (§ 220); and href="http://www.mcmillanlaw.com/">false imprisonment (§ 236).  He was sentenced to four years in prison, and
ordered to register as a sex offender pursuant to section 290.

In 2002, defendant was convicted of
unlawful sexual intercourse with a minor, who was more than three years younger
than defendant, and sentenced to 32 months in prison (§ 261.5, subd. (c)).

On February 9, 2011, defendant
provided two addresses to the Merced County Probation Department:  one in Hanford, and one in Dos Palos.  On February 24, 2011, he reported to the
probation department that he had been at the Dos Palos address since February
21, 2011.  “According to the documents,
the defendant failed to register as a sex offender with the Hanford Police
Department between February 9, 2011 and February 21, 2011 while residing” at
the Hanford address.

The charges

            On February
6, 2012, an information was filed in the Superior Court of Kings County
charging defendant with counts I, II, and IV, failure to timely update his
registration (§ 290.013, subd. (a)); and count III, failure to provide
true registration information (§ 290.015, subd. (a)), with one prior
strike conviction (§ 667, subds. (b)-(i)), and two prior prison term
enhancements (§ 667.5, subd. (b)).

Defendant’s plea

            On March
16, 2012, defendant pleaded guilty to count III and admitted the prior strike
conviction.  He entered the plea with the
understanding that the remaining charges and allegations would be dismissed,
and he would be allowed to argue for dismissal of the prior strike conviction.

Sentencing

            On May 1,
2012, the court denied defendant’s request to dismiss the prior strike
conviction pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. 
The court also denied defendant’s request to reduce the offense to a
misdemeanor (§ 17, subd. (b)).  The
court imposed the lower term of 16 months, doubled to 32 months (two years
eight months) as the second strike term. 
Defendant received 591 days of presentence credit.  He was ordered to pay a $720 restitution fine
(§ 1202.4, subd. (b)); a $40 court security fee; and a $30 criminal
conviction assessment.

            On June 7,
2012, defendant filed a timely notice of
appeal.  He did not request or
receive a certificate of probable cause.

>DISCUSSION

            As noted >ante, defendant’s appellate counsel has
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 September 17, 2012, we invited defendant to submit additional
briefing.  To date, he has not done so.

            Defendant
has failed to obtain a certificate of probable cause and therefore cannot
challenge the underlying validity of his plea. 
(People v. Panizzon (1996) 13
Cal.4th 68, 77-79.)

            After
independent review of the record, we find that no reasonably href="http://www.mcmillanlaw.com/">arguable factual or legal issues exist.

>DISPOSITION

            The
judgment is affirmed.