P. v. Paopao

Filed 6/6/07 P. v. Paopao CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Tovia Paopao appeals from a judgment entered following his no contest plea to three counts of oral copulation by force or fear (Pen. Code,  288a, subd. (c)(2)) and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a) - (d) and 667, subds. (b) - (i)).[1] Pursuant to the negotiated plea, he was sentenced to prison for a total of 48 years, consisting of three consecutive upper terms of eight years, doubled pursuant to the Three Strikes law.[2]

Following appellants plea and before sentencing, defense counsel presented a report from a Dr. Knapke, a psychiatrist, who concluded that appellant was sane at the time of the offenses. Dr. Knapke observed that when appellant was arrested, he had marijuana in his system and was acutely intoxicated on methamphetamine. Dr. Knapke opined the drugs led to appellants behavior.

Defense counsel asked the court to consider the report and recommend appellant be sentenced to Donovan State Prison. Counsel stated that appellant believed his drug habit had caused his downfall and was sincerely sorry for the trauma he caused the victim.

Following a conference at the bench that was not reported, the prosecution advised appellant that while these crimes you pled to are a general intent crime, which means you just had to intend to do the act, not knowing that it was illegal; however, there is a specific intent requirement to arouse yourself sexually or to arouse the victim sexually.[3] [] There are indications that is true in light of it being alleged in the police reports that you were masturbating across the street before this even immediately before this occurred. [] However, counsel has put things on the record -- I want to be sure that you realize that there is such a thing as a mental defense to these charges. Appellant responded he understood and further understood that by pleading he would not be able to present any mental defenses to the jury. Appellant stated he understood that if it was found he was so intoxicated, that potentially that would be a defense to this charge[.] Defense counsel indicated he had gone over this circumstance and the possible mental defenses with [his] client and believed it was still in the best interests of his client to take the disposition.[4]

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On February 13, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P.J.

MANELLA, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

[1] As a result of the plea, one count of assault with intent to commit a felony (Pen. Code,  220), one count of making criminal threats (Pen. Code,  422) and allegations of prior convictions within the meaning of Penal Code sections 667, subdivision (a)(1) and 667.5, subdivision (b) were dismissed.

[2] The probation report indicates that on April 3, 2006, appellant was standing on a street corner in Long Beach, fully clothed, masturbating his exposed penis while looking at his female victim across the street. Appellant said something to her and then chased her. When he caught up with his victim, he grabbed her hair in an angry rage and threw her against a parked car. He then grabbed her by the neck, threw her to the ground and punched her in the face with both fists stating, If you try to call for help, I will kill you! When she called for help, appellant kneed her in the stomach. He climbed on top of her and stated, Fuck me, fuck me! Suck my dick! Appellant continued holding her down stating, Call me daddy and choked her until she almost lost consciousness. After the victim yelled for help, appellant punched her in the face again several times and threatened to kill her. He removed all of his clothes, with the exception of his socks and boots, and forced his erect penis inside of her mouth, forcing it into her throat. When the police arrived, they observed appellant wearing only socks and boots, facedown on the victim, holding her to the ground and not allowing her to get up. He had an angry look on his face and was moving his pelvic area up and down on the victims pelvic area, making contact with her. Appellant refused the officers commands to get off of the victim and only after the officers deployed their taser did appellant stop the attack. Appellant later claimed he did not do anything wrong, was never in the nude and knew nothing of any female.

[3] The prosecution was in error. Oral copulation by force is a general intent crime with no requirement that the acts be done with the specific intent to arouse the perpetrator or victim. (See Pen. Code, 288a, subd. (c)(2).)

[4] The court declared it was satisfied that appellants pleas and admissions were freely and voluntarily made, that appellant understood the nature and consequences of his pleas, that there was a factual basis for the pleas and that appellant knowingly, intelligently and understandingly waived and gave up all of his rights.