P. v. Ruiz
Filed 10/9/13 P. v. Ruiz CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL ANTHONY RUIZ,
Defendant and Appellant.
E058318
(Super.Ct.No. RIF1203302)
OPINION
APPEAL
from the Superior Court
of
County. Charles J.
Koosed, Judge. Affirmed.
Marilee
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Pursuant
to a plea bargain, defendant and appellant Manuel Anthony Ruiz pleaded guilty
to two counts of violating Penal Code section 288, subdivision (b)(1) (lewd and
lascivious act on a child under age 14, by force, violence, duress, menace or
fear), and two counts of violating Penal Code section 288, subdivision (a)
(lewd and lascivious act on a child under age 14). He received an agreed sentence of 19
years.
Defendant
obtained a certificate of probable cause
and filed a notice of appeal. We
affirm.
FACTS
AND PROCEDURAL HISTORY
At
the change-of-plea hearing, the parties stipulated that the police report would
provide a factual basis for the pleas.
Local sheriffs received a report of possible child molestation from the
victim’s mother. The mother related that
her daughter, nine-year-old Jane Doe, had attended a sleepover weekend at a
friend’s home. Defendant and his wife
were the responsible adults at the home where Jane Doe was staying. While Jane Doe was asleep, defendant came
into the room and awakened her.
Defendant took Jane Doe onto his lap and began rubbing her between her
legs. He asked her, “[d]oes it feel
good?†Jane Doe attempted to close her
legs, but defendant continued to push them apart. Defendant also put his hand inside Jane Doe’s
underwear and touched her vaginal area underneath her clothes.
Jane
Doe also reported to her mother that defendant had taken his two children and
Jane Doe to the movies the same weekend.
During the show, Jane Doe accidentally spilled some candies on her lap;
some fell onto the seat between her legs.
Defendant helped retrieve the candies, using the opportunity to touch
Jane Doe’s vagina. When Jane Doe told
defendant there were no more candies to clean up, he continued to touch her
near her vagina, with what Jane Doe described as a “scratching†motion.
In
the course of the investigation, officers arranged for the victim’s mother to
make some monitored “pretext†telephone calls to defendant. During the conversations, defendant admitted
touching the victim inside her underwear. He agreed to meet with the victim’s mother at
her house.
When
defendant arrived at the house, he was met by law enforcement officers; the
officers told defendant that he was not under arrest, but they wished to talk
to him about the incidents with Jane Doe.
Defendant accompanied officers in an unmarked squad car. Defendant was not handcuffed. At the station, defendant was again advised that
he was not under arrest, that he did not have to answer any questions, and that
he was free to leave at any time.
Defendant indicated that he understood, and thereafter he participated
in the interview.
During
the interview, defendant admitted molesting Jane Doe when she stayed overnight
at his house. He recalled placing his
hand inside her underwear and rubbing her vagina, though he denied penetrating
her. He also described taking the
children to the movie theater, when Jane Doe spilled candy on her lap. He helped pick up the spilled candy, but
denied touching Jane Doe’s vagina while cleaning up the candy. At the end of the interview, defendant wrote
Jane Doe a letter of apology.
name="_ftnref1" title="">[1] After this, when the investigating officer
returned to the interview room, he informed defendant that he was under arrest,
and read the Miranda warnings. In a further interview, defendant admitted
touching Jane Doe both over and under her underwear.
As
a result of these events, on June 28, 2012, defendant was initially charged
with one count of violation of Penal Code section 288, subdivision (a) (lewd
and lascivious act on a child under age 14), and one count of violation of
Penal Code section 288.7, subdivision (b) (sexual penetration by a person over
age 18, of a child age 10 or younger).
The charge in count 2 carried a term of 15 years to life if defendant
were convicted. (Pen. Code,
§ 288.7, subd. (b).)
At
a hearing on February 8, 2013, the parties advised the court that they had
reached a negotiated disposition. Because the offense in count 2 carried a life
term, the parties had agreed to a disposition that would result in a
determinate term. Accordingly, the
complaint was amended orally to add four additional counts: counts 3 and 4 alleged violation of Penal
Code section 288, subdivision (b)(1).
Counts 5 and 6 alleged violation of Penal Code section 288, subdivision
(a). Defendant’s maximum exposure in
pleading guilty to the new charges was 24 years, but the parties negotiated a
sentence of 19 years. At first,
defendant said that he did not realize that all four counts would be treated as
strikes. However, he ultimately
understood that, if he committed a new strike offense, he would be treated as a
third striker, and that understanding did not change his position on the guilty
plea.
Defendant
had initialed and signed a plea agreement
form memorializing the terms of the bargain.
Defendant initialed the rights advisements, as well as advisements of
the consequences of his plea. Defendant
also initialed provisions to the effect that all promises made to him were
written on the form, or stated orally in open court, and that he had not been
threatened or pressured to plead guilty.
Defendant also expressly waived his right to appeal. The plea form expressly recited that defendant
had been advised he was pleading to four strike offenses.
Defendant
was sentenced in accordance with the plea agreement to a determinate term of 19
years on counts 3 through 6. Counts 1
and 2 were dismissed in the interest of justice.
About
a month after the plea and sentencing, and notwithstanding his waiver of
appeal, defendant filed a notice of appeal in the trial court. He averred that he had pleaded guilty “under
extreme duress, with my attorney insisting that I would otherwise receive a ‘[l]ife’
term of imprisonment.†Defendant also
stated that, “[m]y attorney was rude to me to the point of obvious bias and
partiality. My attorney originally
informed me that she was seeking a 1 year [sic]
county jail commitment w/ 3 yr. [sic]
probation. (Obvious incompetence as I
ended up with 19 years in extreme contrast.)
Evidence in the form of a [p]sychiatric [e]valuation, very ‘favorable’
to me which could have mitigated my sentence was not presented.†Defendant acknowledged that the appeal was an
attack on the validity of the plea and requested a certificate of probable
cause, which the trial court granted.
Defendant described the possible issues on appeal as:
“1) Ineffective assistance of
[c]ounsel/[u]nethical behavior.
“2) Mitigating factors, i.e., ‘favorable’
psychiatric evaluation was not introduced at sentencing.
“3) Cruel and unusual punishment [r]e: [l]ength of [s]entence.â€
ANALYSIS
Pursuant
to request, this court appointed counsel
to represent defendant on appeal.
Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], setting forth a statement of the case and a summary of the facts, but
making no substantive arguments. Counsel
has identified some potential issues for appeal (i.e., whether the factual
basis stipulated in the police report supports conviction of forcible
molestation, whether the facts support the charging and conviction of four
separate counts—and, if not, whether counsel was incompetent in agreeing to
this settlement—and whether the issuance of a certificate of probable cause
negates defendant’s waiver of his appeal rights), and requested this court to
undertake a review of the entire record.
Defendant
has been offered the opportunity to file a personal
supplemental brief, which he has not done.
Pursuant to People v. Kelly
(2006) 40 Cal.4th 106, we have reviewed the record in its entirety and find no
arguable issues. As to the suggestion
that the stipulated facts in the police report were insufficient to support the
charges, we disagree. The victim, Jane
Doe, described incidents that had taken place on two different dates, once
during an overnight “sleepover,†and once at a movie theater. On both dates, defendant touched the victim
both over and under her underwear. On
one occasion, defendant persisted in pushing the victim’s legs apart when she
tried to resist him by closing her legs.
On the other, defendant continued pushing his hand into the victim’s
vaginal area, using both “scratching†and in-and-out motions, after she told
him there was no more candy to clean up.
The evidence was sufficient to support four separate counts, and two
counts of forcible lewd and lascivious acts.
There was consequently no ineffective assistance of counsel in
negotiating the agreed settlement.
Notwithstanding
defendant’s waiver of his appeal rights, his claim on appeal is that he accepted
the plea bargain under duress; the acceptance of the bargain under duress
naturally calls into question the basis of the bargain itself, and all of its
terms, including the waiver of defendant’s appeal rights. (See People
v. Mitchell (2011) 197 Cal.App.4th 1009, 1015 [To be enforceable, a
defendant’s waiver of the right to appeal must be knowing, intelligent, and
voluntary.]; see also People v. Panizzon
(1996) 13 Cal.4th 68, 80 [The voluntariness of a waiver is a question of law
which appellate courts review de novo.].)
Defendant’s
notice of appeal, as we have already noted, set forth several possible
grounds. Defendant’s claim of duress is
without merit. The charges defendant
faced included an offense carrying an indeterminate term of 15 years to
life—the “life†count to which defendant referred. That his attorney told him of the risk of
exposure to an indeterminate life sentence, if he went to trial, as opposed to
the negotiated determinate term of 19 years (out of a maximum 24), did not constitute
undue “duress.†That a defendant enters
a plea “reluctantly†or “unwillingly,†subject to the “persuasions†of counsel,
while being correctly advised of the consequences of not entering a plea, does
not mean that the plea was involuntary or unknowing. (See People
v. Urfer (1979) 94 Cal.App.3d 887, 892.)
Defendant’s present claim also contradicts his plea form, on which he
had initialed the statement that he had not been coerced or pressured into
entering the plea.
The
claims of ineffective assistance of counsel are also without merit. Defendant was referred for a
Penal Code section 288.1, to determine his eligibility to have his sentence
suspended.
in the sense that the evaluator opined that defendant was not a pedophile, he
was not a danger to the community or to the victim, and he should be considered
eligible for probation under the statute.
However, counsel’s inability to negotiate a minimal or probationary term
does not demonstrate either that counsel’s performance was deficient, or that
defendant was prejudiced thereby. (
668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674].) The filed charges were extremely serious, and
counsel was able to bargain for a determinate term on new charges of reduced
severity. The failure to present the
psychological evaluation at sentencing was of no moment, as the sentence itself
was imposed in strict accordance with the negotiated bargain. The court was, presumably, fully aware at all
times of the evaluator’s confidential report, which had been filed pursuant to
the court’s order. Defendant’s sentence
of 19 years was not cruel and unusual for four strike sex offenses.
None
of potential issues has arguable merit.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
name="_ftn1" title=""> [1] The letter made no specific admissions as to
any particular conduct. Defendant wrote
that the victim was “a very special girl,†and that she had done nothing
wrong. “Sometimes grown[-]ups make
mistakes and I made the biggest one that hurt you . . . .†Defendant stated, “I don’t know what I was
thinking to do something so stupid.†He
asked the victim to “forgive me for my actions.â€
name="_ftn2" title=""> [2] Penal Code section 288.1 provides: “Any person convicted of committing any lewd
or lascivious act including any of the acts constituting other crimes provided
for in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or her
sentence suspended until the court obtains a report from a reputable
psychiatrist, from a reputable psychologist who meets the standards set forth
in Section 1027, as to the mental condition of that person.â€
