P. v. Topete

Filed 8/13/08 P. v. Topete CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Francis J. Hourigan III, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________________________

Manuel Topete appeals from the judgment entered on resentencing following a jury trial in which he was convicted of continuous sexual abuse of one of his daughters from July 1990 to July 1996 (Pen. Code,  288.5, subd. (a)) and a postverdict plea of guilty to possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). He was sentenced to an upper term of 16 years for continuous sexual abuse and a concurrent 8-month term on the drug offense.

On defendants original appeal, we rejected contentions regarding instruction on the statute of limitations and imposition of an upper term sentence. (People v. Manuel T. (Nov. 20, 2006) B188514 [nonpub. opn.].) Defendant successfully petitioned for review in the California Supreme Court, which transferred the matter back to us with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799. We did so and again rejected the statute of limitations issue but concluded that the trial court prejudicially erred in aggravating defendants sentence based on planning, victim vulnerability, and defendants having taken advantage of a position of trust. (People v. Topete (Dec. 21, 2007) B188514 [nonpub. opn.], pp. 69). Accordingly, we remanded the matter for resentencing and directed the trial court to follow the current version of Penal Code section 1170, subdivision (b) (Stats. 2007, ch. 3,  2), which provides that sentencing terms shall rest within the sound discretion of the trial court. (Id. at p. 9.) At resentencing on February 27, 2008, the court again imposed the upper term for continuous sexual abuse of a child.

Upon being resentenced, defendant filed a notice of appeal. We appointed counsel to represent him. Counsel filed an opening brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441442.) We then sent an identical letter to defendant and to counsel in which we directed counsel immediately to forward the appellate record to defendant and informed defendant that within 30 days he could personally submit any contentions or issues he wished us to consider. The 30-day period has passed and no response has been received.

We have examined the entire record and are satisfied that defendants counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

NEIDORF, J.^*

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^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.