P. v. Ochoa

Filed 2/10/10 P. v. Ochoa CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Ochoa appeals from a judgment and sentence to state prison following his no contest pleas. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days, to which he has not responded. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.

STATEMENT OF FACTS

The following facts are drawn from the preliminary examination held on October 2, 2008.

T. Doe was 14 years old when she testified at the preliminary examination. Defendant is her mothers brother, her uncle Gerardo. One day in January 2007, when she was 12 going on 13, she went with defendant to visit defendants daughter, her cousin Ruby, in Sunnyvale. That day, defendant touched her legs and breasts over her clothing. Later that day, when they were in the car, defendant rubbed her thigh near her crotch. He also grabbed her hand and put it on his erect penis over his clothes. She tried to pull her hand away, but he put his hand on top of hers and held her hand there so that she could not pull her hand away. He stopped the car in a parking lot and kissed her in [her] mouth. He told her not to tell her mother.

The next day, defendant took T. to the ice cream shop he owned in Sunnyvale. They went into a back room that had a computer and a bed. He hugged and kissed T. and helped her take off her clothes.

On another day in January or February of 2007, defendant took her to the same place and put his mouth on her vaginal area. Then he put T. on top of him and had vaginal intercourse with her. She was afraid he would hurt her if she refused to let him have sex with her.

According to the probation report, defendant admitted to police that he touched T. inappropriately, engaged in mutual oral copulation with her, and had sexual intercourse with her once, but said she initiated the contact.

PROCEDURAL BACKGROUND

In an information filed October 9, 2008, defendant was charged with two counts of lewd and lascivious acts upon a child under the age of 14, two counts of forcible lewd acts upon a child under the age of 14, and two counts of aggravated sexual assault on a child under the age of 14 and seven or more years younger than the defendant. (Pen. Code, 288, subd. (a), 288, subd. (b)(1), 269.) On October 14, 2008, defendant waived arraignment and pleaded not guilty.

On May 21, 2009, defendants trial counsel filed a motion to admit evidence of the complaining witnesss prior sexual conduct pursuant to Evidence Code section 782. On May 22, 2009, the district attorney filed an amended information charging four additional counts of forcible lewd acts upon a child under the age of 14. That same day, defendant entered into the following negotiated disposition: defendant agreed to plead to counts 7, 8, 9, and 10, the four counts added by the amended information; counts 1 through 6 of the original information would be submitted for dismissal at the time of sentencing; and defendant was promised a state prison sentence of 24 years, no more or less. The court accepted the amended information and defendant waived arraignment on it.

Several times during the plea proceedings, defendant had off-the-record conversations with his attorney before affirming his understanding of statements made by the court. For example, defendant conferred with counsel before stating no to the question whether he had been promised anything in exchange for his plea other than the promises made in open court. Defendant was advised that he would be eligible for credits upon 15 percent when you get to prison and any other credits that youve already accrued here in county jail. Defendant did not question this advisement, but later asked if his two sentences would be served together. Counsel and the court discussed whether the two sentences would be served concurrently or consecutively. The court clarified that [h]es sitting with no credits on this case right now, because he had already been sentenced on another case.[1] Defendant did not ask for further clarification. Defendant was advised that he would have to register as a sex offender if he came back to the United States after being deported and, after consulting with his attorney, said he understood. The court explained to defendant that the offenses to which he would be pleading guilty or no contest were considered strikes, and the court explained what the consequences of having four strikes would be in the event that he committed another felony offense. Again, after consulting with his attorney, defendant stated that he understood. After victim restitution was explained to defendant by the court, defendant consulted with his attorney and then stated that he understood.

The court advised defendant of the constitutional rights he would be giving up by pleading guilty or no contest. Defendant said he understood his rights and gave them up. Defendant pleaded no contest to counts 7, 8, 9, and 10 of the amended information.

On June 19, 2009, the court sentenced defendant to 24 years in prison in accordance with the plea bargain by imposing the midterm of six years on each of the four counts consecutively to each other. The 24-year sentence in this case was imposed consecutively to the three-year sentence previously imposed in action number EE705859. Counts 1 through 6 were dismissed. Defendant received no credit for time served while in jail.

DISCUSSION

On October 6, 2009, appointed counsel filed a Wende brief in this court. This court sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days, to which defendant did not respond. We find that defendant was adequately advised of the consequences of his plea and constitutional rights. He stated he understood the consequences and his rights and waived the latter. Defendant was properly sentenced in accordance with his bargain. Concurrent sentencing was not a term of his plea bargain. The court did not err in its advisement about the possible credits he might have accrued while in county jail, or in denying credit for the time he spent in county jail during the pendency of this matter while he served his three-year sentence in EE705859. (In re Joyner (1989) 48 Cal.3d 487.) We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)

DISPOSITION

The judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Elia, Acting P.J.

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Mihara, J.

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[1] On August 9, 2007, defendant was convicted of violating two counts of Section 288(a) of the Penal Code. These offenses . . . occurred . . . subsequent to the present matter. The defendant was ordered to serve three years at the California Department of Corrections with 109 total days credit . . . and transported to Kern State Prison. On June 19, 2008, the defendant was transported back to Santa Clara County . . . for sentencing in the present matter. . . . [D]efendants scheduled Eligible Parole Release Date (EPRD) is November 27, 2009.