P. v. Pruneda

Filed 12/3/08 P. v. Pruneda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena and David A. Gottlieb, Judges.

Fredric J. Gagliardini, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

On January 8, 2007, appellant, Hector Pruneda, waived his right to a preliminary hearing. On January 18, 2007, the People filed an information alleging that appellant committed continuous sexual abuse on a child under age 14 (Pen. Code,  288.5, count one)^[1]and lewd and lascivious conduct on a child under age 14 ( 288, subd. (a), count two).

On August 21, 2007, appellant entered into a plea agreement.^[2] At the hearing, the court advised appellant that he would admit count two as a straight up plea in which he could be sentenced to prison for three, six, or eight years. In return for his plea, the prosecutor would dismiss count one and an unrelated misdemeanor action. The court asked appellant if he had gone over his constitutional rights with his attorney and whether he understood those rights as well as the felony advisement and waiver of rights and plea form. When the court asked appellant if he had any questions concerning his plea, the appellant replied that he did not. The appellant indicated that he understood that he would have to register as a sex offender pursuant to section 290.

Appellant acknowledged that the he understood his rights in the change of plea form and gave up each right. The parties stipulated that there was a factual basis for the plea.^[3] Appellant pled no contest to count two. The court granted the prosecutors motion to dismiss count one and the other action. Appellant waived time for sentencing. On October 10, 2007, sentencing was continued for the preparation of a section 288.1 report.

Dr. Robert Taylor evaluated appellant for the section 288.1 report. Appellant told Dr. Taylor that he thought the victim was lying about the molestation. Dr. Taylor provisionally diagnosed appellant as a pedophile. Appellant was positive on 0 of the 10 items on a risk assessment instrument. Dr. Taylor concluded appellants risk to reoffend was in the low risk category relative to other adult male sex offenders. Dr. Taylor recommended incarceration of a year, a rigid period of probation, and, among other things, commitment to a group-based sexual offender treatment program. The probation officer recommended the six-year midterm sentence.

At the sentencing hearing on January 30, 2008, defense counsel argued that appellant should either be placed in treatment or sentenced to the mitigated prison term. The court rejected the findings of Dr. Taylor that this was a one-time offense. The court noted the two mitigating factors were the lack of a prior criminal history and some positive information about appellant in the psychologists report. The court found there were aggravating factors in the case, including the fact that under the dismissed count and the probation report, the offense was ongoing. The court imposed the midterm sentence of six years. The court imposed a restitution fine and granted applicable custody credits. Appellant failed to obtain a certificate of probable cause.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on August 20, 2008, we invited appellant to submit additional briefing.

Appellant replied with a short letter complaining about his appellate counsel and requesting that new counsel be appointed for him. We find no basis for the appointment of new appellate counsel simply because current appellate counsel filed a Wende brief. Appellants request for new appellate counsel is denied.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Levy, Acting P.J., Cornell, J., and Gomes, J.

Judge Pena presided over appellants change of plea hearing. Judge Gottlieb sentenced appellant.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] Appellant executed a felony advisement of rights, waiver and plea form in which he acknowledged he was waiving his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, admitting count two, unrelated misdemeanor cases would be dismissed, and that he faced a maximum sentence of eight years.

^[3] Appellant was caught by another adult in bed molesting a 12-year-old girl.