P. v. Reyes





Filed 4/27/11 P. v. Reyes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SALVADOR GARCIA REYES, Defendant and Appellant.

F059663 (Super. Ct. No. 09CM2950) OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Salvador Garcia Reyes (appellant) was charged in counts 1 and 5 of rape (Pen. Code, § 261, subd. (a)(2));^[1] in counts 2, 3, 4, 6, 7, 9, 11, and 12 of committing a forcible lewd act upon a child (§ 288, subd. (b)(1)); in counts 8 and 13 of continuous sexual abuse of a child (§ 288.5, subd. (a)); in count 10 of committing a lewd act upon a child (§ 288, subd. (a)); in counts 14 and 15 of rape of a spouse (§ 262, subd. (a)(2)); and in count 16 of forcible sodomy (§ 286, subd. (c)(2)). It was further alleged as to counts 1, 2, and 12 that appellant tied or bound his victim (§ 667.61, subd. (b); in counts 1 through 13 that the statute of limitations was extended (§ 803, subd. (f)(1)); and in counts 1 through 16 that appellant committed sex offenses against multiple victims (§ 667.61, subds. (b)-(e)(5)).^[2] The alleged victims of appellant's acts were his two stepdaughters and his wife.^[3]
On January 7, 2010, pursuant to People v. West (1970) 3 Cal.3d 595, appellant pled no contest to counts 2, 11, and 14. In exchange, the trial court granted the prosecutor's request to dismiss the remaining counts and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On February 8, 2010, the trial court denied probation and sentenced appellant to state prison for an aggregate term of 24 years, consisting of three consecutive upper terms of eight years for each of the substantive offenses. Appellant was also ordered to pay the following fines and/or fees: a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b); a stayed $10,000 parole revocation fine pursuant to section 1202.45; a $90 court security fee pursuant to section 1465.8; a $90 court facilities funding assessment pursuant to Government Code section 70373, subdivision (a)(1); a $300 fine pursuant to section 290.3; a $300 state penalty assessment pursuant to section 1464; a $60 surcharge pursuant to section 1465.7; a $210 county penalty assessment pursuant to Government Code section 76000; a $150 court construction penalty pursuant to Government Code section 70372; a $30 DNA funding penal assessment pursuant to Government Code section 76104.6; and a $30 DNA funding penal assessment pursuant to Government Code section 76104.7. Appellant was ordered to register as a sex offender (§ 290); submit to AIDS testing (§ 1202.1); and provide blood and saliva samples (§ 296, subd. (a)(1)). Thereafter, appellant filed a notice of appeal, but neither sought nor obtained a certificate of probable cause. (See § 1237.5.)
Appellant contends the trial court erred in refusing to hold a Marsden^[4] hearing following his request at sentencing, and that the trial court erred when it improperly imposed various fees and fines. We agree with his latter contention, but in all other respects affirm.
DISCUSSION

1. Marsden hearing

Appellant contends the trial court erred when it refused to hold a Marsden hearing following his request for substitute counsel at sentencing. We disagree.
The record of the plea hearing shows defense counsel advised the court that the prosecutor had made an offer to appellant to plead to three sex crimes, one per victim, with a maximum term of 24 years, but that appellant had rejected the offer. Appellant agreed that he was rejecting the offer. When asked if defense counsel had gone over the â€