P. v. Stagg

Filed 7/16/07 P. v. Stagg CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Counsel for defendant Michael Wayne Stagg has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. We have conducted that review, and finding no arguable issues, affirm the judgment.

Factual/Procedural Background

On March 7, 2006, defendant was charged by information with three counts of committing a lewd act upon a child (Pen. Code, 288, subd. (a))[1] and one count of burglary ( 459). All counts arose out of defendants activity during the early morning hours of November 11, 2005, when defendant, while under the influence of illegal drugs and alcohol, went into the bedroom of a 10-year-old female acquaintance, touched her vagina (count 1) and buttocks (count 2) outside of her pajamas and placed his penis against her face and back (count 2). Count 4 was based on allegations defendant had entered the childs residence with the intent to commit larceny or any felony.

Defendant entered an open plea of no contest to count 1. He signed a waiver form, also placing his initials in spaces indicating he had read and he understood the rights he was waiving by entering the plea. He initialed a space indicating he understood that because of the plea he would be required to register as a sex offender. The court, after assuring itself defendants plea was voluntary, and that defense counsel agreed there was a factual basis for it, accepted the plea and dismissed the other counts.

Defendants probation officer reported defendants prior criminal activity had been minimal, but defendant had a substantial history of multiple drug use which significantly impaired his ability to support himself or any of his five children. Defendant was examined by an expert, who was of the opinion defendant is not a pedophile and the crimes resulted in part from the fact that defendant had just fallen off the wagon, had drunk a great deal of alcohol and had consumed cocaine. The expert noted defendants confusion over the incident, his remorse, his abstinence from drugs or alcohol since the incident and his resolve to maintain abstinence, opining the incident was an idiosyncratic event, unlikely to recur. Defendants probation officer made a guarded recommendation that defendant be given probation.

After allowing the parties to argue their positions and allowing interested persons to speak, the court sentenced defendant to the midterm of six years for violating section 288, subdivision (a), and imposed a restitution fine of $1,200 and a parole revocation fine of $1,200, suspending the latter unless parole was revoked. The court awarded defendant 16 days credit for time served. A minute order filed after the hearing included orders that defendant register as a sex offender and submit to both AIDS testing and DNA testing.

Defendants notice of appeal specifies the appeal is based on the sentence or other matters occurring after the plea. He has not obtained a certificate of probable cause to raise constitutional, jurisdictional or other grounds going to the legality of his plea.

Appellate counsel has directed our attention to several points that might arguably support the appeal. (See Anders v. California (1967) 386 U.S. 738, 744.) These are: (1) whether the trial court abused its discretion in finding defendant unsuitable for probation; (2) whether trial counsel rendered ineffective assistance of counsel by failing to request that the trial court strike the portion of the probation officers report that erroneously reported counts 2-4 had been dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754); and (3) whether the trial court clerk erred by entering orders for registering as a sex offender and submitting to testing when no such orders were made by the court during the sentencing hearing itself.

Counsel also reports a letter was sent to defendant, informing him a Wende/Anders brief would be filed and advising him he was entitled to file a supplemental brief within 30 days. Defendant has not filed a supplemental brief.

Discussion

By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendants plea and waiver, therefore, bar him from making any argument he did not in fact commit the crime and any argument that some pre-plea ruling was error. As defendant has not obtained a certificate of probable cause, he may not attack the validity of his plea.

The court could have granted probation only if it found unusual circumstances justifying a grant of probation. ( 1203, subd. (e)(5).) Whether a case is unusual for these purposes is a question for the sound discretion of the trial court. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.) Nothing in the record suggests this case is unusual, except that defendants culpability might be reduced, somewhat, because he committed the crime while under extreme intoxication that undoubtedly affected his mental condition. (See Cal. Rules of Court, rule 4.413(c)(2)(B).) That defendant was intoxicated, or that the expert believed the crime to have been an idiosyncratic event, did not require the court to grant probation and does not render the courts decision not to grant probation an abuse of discretion.

That the probation report may be in error in reciting counts 2-4 were dismissed with a Harvey waiver is of no matter as, should the question ever arise, the existence or nonexistence of a waiver will not turn on the probation officers opinion or on the probation report. Defense counsels failure to ask that the report be corrected has no effect on the judgment or sentence, and defendant has not in some way waived the right to seek correction of the report.

While the court did not order from the bench that defendant would be required to submit to AIDS and DNA testing and to register as a sex offender, testing and registration are mandatory. ( 1202.1, subds. (a) & (e); 290; 296, subd. (a)(3); People v. Travis (2006) 139 Cal.App.4th 1271, 1279; People v. Monroe (1985) 168 Cal.App.3d 1205, 1209.) In addition, defendant was aware he would be ordered to register, and even if he were entitled to attack the validity of his plea, there is no likelihood his decision to plead no contest would have been different had he known he would be required to test. The failure to recite on the record that registration and testing would be required was a technicality having no effect on the validity of the judgment or sentence. The six-year sentence imposed by the court was fair and authorized by law. ( 288, subd. (a).) The restitution and parole revocation fines were authorized by law. ( 1202.4, subd. (b) & 1202.45.) Defendant was awarded all credits to which he was entitled.

In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

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[1] All statutory references are to the Penal Code.