P. v. Molina
Filed 6/16/08 P. v. Molina CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, Plaintiff and Respondent, v. JESUS MOLINA, Defendant and Appellant. | 2d Crim. No. B200093 (Super. Ct. No. 1136328) (Santa Barbara County) |
Jesus Molina appeals from an order denying his petition for writ of error corum nobus or writ of habeas corpus, by which he sought to set aside his plea of guilty to one felony count of committing a lewd act with a minor (Pen. Code, 288, subd. (a)) and one misdemeanor count of annoying or molesting a child ( 647.6, subd. (a)) on the grounds that the prosecutor concealed evidence from the defense that the victim had recanted, and that this evidence tended to disprove the charges and undermine the credibility of the key witness. (In re Ferguson (1971) 5 Cal.3d 525, 531.)
We appointed counsel to represent appellant on appeal. After examining the record, counsel filed an opening brief in this court raising no issues and requested that we independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On October 29, 2007, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. On December 31, 2007, January 28, 2008, and February 8, 2008, appointed counsel requested extensions of time for appellant to file a supplemental response. We granted each request, ultimately extending his time to respond to March 1, 2008. Appellant did not file a supplemental response and there were no further requests for extension. We find no arguable issues and we affirm.
Appellant was accused of felony continuous sexual molestation of a member of his household over a period of two years ( 288.5, subd. (a)) and misdemeanor molestation or annoyance of the child ( 647.6, subd. (a)). The charges were based upon statements made by the victim and several corroborating witnesses. On October 4, 2004, the victim wrote to the judge recanting her statements and stating it was her fault. After consulting with appointed counsel, on October 29, 2004, appellant entered a plea bargain pursuant to which he pled no contest to the misdemeanor molestation count ( 647.6, subd. (a)) and a new count of felony lewd conduct with a minor ( 288, subd. (a)) in exchange for dismissal of the continuous sexual abuse count. ( 288.5, subd. (a).) He was given a suspended sentence of eight years in state prison, and was placed on felony probation with terms and conditions that required him to serve one year in jail with credit for time served, not to possess or consume alcohol, to obtain sex offender treatment and to stay away from parks and playgrounds, among other things.
In May of 2005, appellant violated the terms and conditions of his probation by consuming alcohol and being in a public park where children were present. He admitted the violation, and was continued on probation with the added term that he serve 90 days in jail and complete a residential treatment program.
In November of 2005, appellant violated his probation when he was disqualified from a sex offender treatment program for failing to comply with the program. He admitted the violation, and was continued on probation with the added term of 365 days in jail with credit for time served.
On July 3, 2006, appellant violated his probation by consuming and possessing alcohol. He admitted the violation, and while sentencing was pending, his counsel filed a petition for writ of error corum nobis based on a statement of the victim that she had attempted to recant shortly after making her initial report, and that she and her mother had been pressured by the prosecutor not to recant.
The trial court conducted an evidentiary hearing on the petition. The victim gave testimony that contained inconsistencies and was contradicted by the testimony of the probation officer and affidavits of a deputy district attorney, victim child advocate and child protective social worker who were involved in the case. The trial court made credibility determinations adverse to appellant and denied the petition. Substantial evidence in the record supports the trial court's implied finding that appellant did not demonstrate a reasonable possibility of a more favorable result based on withheld evidence. (In re Sodersten (2007)146 Cal.App.4th 1163, 1226.)
We have reviewed the entire record and are satisfied that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Frank J. Ochoa, Judge
Superior Court County of Santa Barbara
______________________________
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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