P. v. Robles
Filed 6/10/13 P. v. Robles CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO ROBLES Defendants and Appellants. | A137364 (San Mateo County Super. Ct. No. SC074081A) |
Luis
Antonio Robles appeals from a final judgment of conviction, based upon a
plea of no contest, for the following
violations against a minor under the age of 14 years: sodomy by means of force (Pen. Code, § 286,
subd. (c)(2))
title="">[1];
sexual intercourse by means of force (§ 261, subd. (a)(2)); two counts of oral
copulation by means of force (§ 288a, subd. (c)(2)); and residing with or
having recurring access to a child under the age of 14 years, and engaging in
acts of substantial sexual conduct or acts of lewd or lascivious conduct. (§ 288.5, subd. (a)). Appellant’s counsel raises no issues, and
requests an independent review of the record under People v. Wende (1979) 25
Ca1.3d 436. Appellant was advised by
counsel of his right to file a supplemental
brief but he has not done so. Based
on our review of the record, we find no arguable issues and affirm the
judgment.
BACKGROUND
Deputy Probation Officer Janelle K. Holowaty prepared a
report detailing the underlying offenses alleged to have been committed by
appellant.
Jane
Doe, the victim in this matter, is the 14-year-old daughter of appellant. Doe revealed to a friend that she was raped
by her father. Her friend relayed this
information to a counselor who notified Child
Protective Services. Doe’s mother
told police that she and appellant were legally separated and lived at separate
residences, but appellant still visited their two children at her home. The police interviewed Doe, and she revealed
that inappropriate sexual behavior occurred for two years when she was in the
sixth and seventh grade.
Doe stated that in
the summer of 2010, appellant was supposed to drive her somewhere, but he took
her home instead. When they arrived at
home, Doe went into her bedroom and appellant followed her. She sat on her bed, and appellant forced her
to take off her clothes. Appellant then
took out his erect penis and inserted it into her vagina. When she resisted and told appellant she was afraid
of becoming pregnant, appellant inserted his erect penis into her anus. She stated it hurt “really bad†and told
appellant to stop. Appellant responded
by asking what she preferred and then told her to “suck his penis.†Doe stated she complied because she was
scared and that she was crying and shaking during the incident.
Doe
recalled another incident that took place in her bedroom where appellant
attempted to insert his penis into her anus.
During that incident, appellant covered her mouth with his hand as she
laid on her stomach on the ground. Doe
disclosed a similar incident where she was in the bathroom and appellant came
in and forced her onto the ground. Appellant
then laid on top of her and covered her mouth with his hand.
Doe also disclosed that appellant orally
copulated her and that he forced her to orally copulate him. She stated appellant would follow her to the
bathroom and commit these acts. She recalled
appellant inserted his fingers into her vagina while he orally copulated
her. Doe stated this hurt and appellant
only stopped to avoid detection by her mother.
Doe further
disclosed appellant forced her to massage his penis on a regular basis while
her mother was taking baths or working late.
She stated she would try to lock her door, but that appellant would gain
access. She also revealed appellant
touched her breasts on multiple occasions and that he showed her pornographic
videos.
Doe
stated the sexual assaults ended when she was in the eighth grade after
appellant started using a mask to help him breathe at night. She reported appellant would “feel bad†and
apologize after the sexual assaults.
Appellant would then take her out for yogurt, give her money, or buy her
clothes.
The information
filed by the San Mateo District Attorney charged appellant with the following
violations: in count 1, sodomy by means
of force (§ 286, subd. (c)(2)); in count 2, sexual intercourse by means of
force (§ 261, subd. (a)(2)); in count 3, oral copulation by means of force (§
288a, subd. (c)(2)); in count 4, dissuasion or attempted dissuasion of a victim
from making a report to authorities of such victimization by means of force (§
136.1, subd. (c)(1)); in count 5, attempted sodomy by means of force (§§ 664,
286, subd. (c)(2)); in counts 6 to 15, oral copulation by means of force (§
288a, subd. (c)(2)); in count 16, digital penetration of the genital or anal
openings of a minor under 14 years (§ 289, subd. (j)); in counts 17 to 20,
commission of a lewd or lascivious act, digital penetration of the vagina of a
minor under 14 years (§ 288, subd. (a)); in counts 21 to 25, commission of a
lewd or lascivious act, touching the breasts of a minor under 14 years (§ 288,
subd. (a)); and in count 26, residing with or having recurring access to a
child under 14 years, and engaging in three or more acts of substantial sexual
conduct (§ 1203.066, subd. (b)) or three or more acts of lewd or
lascivious conduct (§ 288) (§ 288.5, subd. (a)).
All
26 counts were alleged to be serious felonies.
(§ 1192.7, subd. (c)(3)-(6), (35), (37) & (39).) All these counts, except counts 4 and 5, were
alleged to be violent felonies. (§
667.5, subd. (c)(3)-(6).) Except for counts 4, 5, and 21-25, the counts
carried ineligibility for probation and suspension of sentence. (§§ 1203.065, subd. (a), 1203.066, subd.
(a)(8).)
Appellant
pled nolo contendere to counts 1, 2,
3, 7, and 26. He also admitted all of
the enhancements to each of those counts.
The remaining counts
and allegations were dismissed as part of the plea agreement, which also
provided that the
maximum penalty as a result of his change of plea would be 48 years. The
court imposed consecutive middle terms of six years on counts 1, 2, 3, and 7, and a consecutive upper term of 16 years on count 26 for
a total sentence of 40 years. The court
imposed restitution fines of $240 under sections 1202.4, subdivision (b) and
1202.45. It also imposed a criminal
conviction assessment of $120 and a court operations assessment of $160. Lastly, the court ordered $675 in restitution
for the minor victim and $891 in restitution for her mother.
Appellant
filed a timely notice of appeal.
This
appeal is from a final judgment of conviction based upon an open plea of no
contest. “In order to appeal after a
conviction by plea of guilty or nolo contendere, a defendant must obtain a certificate of probable cause from the
trial court.†(§ 1237.5;
1353, 1364.) Here, there is no evidence
in the record that appellant obtained a certificate of probable cause. Therefore, no appeal shall be taken.
When
taking a conditional plea of guilty or no contest, a trial court is required by
section 1192.5 to “ ‘cause an inquiry to be made of the defendant to satisfy
itself that the plea is freely and voluntarily made, and that there is a
factual basis for the plea.’ â€
435.) Here, appellant made an open plea
of no contest based on an indicated maximum sentence.
The clerk’s and reporters
transcripts demonstrate that appellant made his plea and admissions freely and
voluntarily. Appellant read, understood,
and signed each of the written forms indicating his understanding of the rights
he was waiving and he admitted each of the allegations in response to
inquiry. Appellant had the opportunity
to discuss both the nature of the charges and allegations and any possible defenses with his counsel. Appellant also understood the maximum penalty
that could be imposed as a result of his pleas and admissions was 48 years in
state prison. It was also stipulated
that there was a factual basis for each of the pleas and admissions. Because the record shows the change of plea
was freely and voluntarily made, there is no issue with appellant’s plea of no
contest.
“
‘[T]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.]
In the absence of such a showing, the trial court is presumed to have
acted to achieve the legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’
†(People v. Carmony (2004) 33 Ca1.4th 367, 376-377.)
Appellant’s
counsel argued that the mandatory minimum sentence of 12 years was adequate to
punish appellant for his crimes.
However, the court imposed a total sentence of 40 years. Appellants counsel argued there were several
mitigating factors in appellant’s favor, including that: appellant suffered this type of abuse himself
when he was five years old; he had voluntarily pled guilty and taken
responsibility for his crimes; and appellant did not present a danger to the
community because he was found to have a low risk of recidivism by a clinical
psychologist. Appellant’s counsel asked
the court to consider leveling the punishment because of these mitigating
factors and fix the sentence at the minimum of 12 years.
The
court responded by pointing to the egregious nature of this case. The court stated appellant’s conduct was
“unbelievable†because the victim was his own biological daughter. The court stated the amount of damage
appellant inflicted on his victim was incapable of being calculated. Particularly troubling to the court was when
Doe expressed to appellant that she was afraid of getting pregnant, appellant
stopped with the vaginal intercourse and sodomized her. The
court highlighted the aggravating factors, which included: appellant was in a position of trust; the
victim was particularly vulnerable; there was a significant level of
sophistication to avoid the detection; appellant declined to participate in the
probation interview; and appellant declined to provide police with a statement,
making it impossible for the probation officer to assess any level of
remorse. The record shows the court
fully considered any mitigating or aggravating factors in its sentencing
determination; and there is no issue with the court’s imposition of a total
sentence of 40 years.
DISPOSITION
The
record reveals no arguable issues that require further briefing. The judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
name="_ftn1" title=""> [1] All further unspecified code sections refer
to the Penal Code.
