P. v. Garcia
Filed 1/9/09 P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HERNANDEZ GARCIA, Defendant and Appellant. | E045777 (Super.Ct.No. INF060905) OPINION |
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Victor Hernandez Garcia appeals after he pleaded guilty to six counts of forcible rape and two counts of forcible oral copulation. He filed an appeal seeking to challenge sentencing or matters occurring after the plea. His appointed appellate counsel has filed a brief pursuant to 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], arguing no issues on appeal. Although he was afforded the opportunity to file a supplemental brief to raise any issues he wishes to discuss, defendant has not filed a supplemental brief. We have undertaken the required review of the entire record and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Over a period of approximately eight days in 2007, defendant engaged several times in nonconsensual sexual relations with his 14-year-old stepdaughter. On six different nights, defendant went to his stepdaughters bedroom, woke her up, and took her to his bedroom. There he proceeded to undress her, and perform sexual acts with her. Defendant went ahead with his activities, even though his stepdaughter asked him several times to stop. The stepdaughter told police that she complied with defendants requests because she was afraid; defendant had threatened to harm her mother or her sister if she did not do what defendant wanted. Six times, defendant forced his stepdaughter to have intercourse with him; on two of these occasions, he also orally copulated her.
As a result of these incidents, defendant was charged with six counts of rape by force or fear (Pen. Code, 261, subd. (a)(2)), six counts of unlawful sexual intercourse with a person under the age of 16 (Pen. Code, 261.5, subd. (d)), two counts of forcible oral copulation (Pen. Code, 288a, subd. (c)(2)) and two counts of committing a lewd or lascivious act on a child of 14 or 15 years, when the defendant is 10 years older than the victim (Pen. Code, 288, subd. (c)(1)).
After jury trial began, defendant agreed to plead guilty to six counts of forcible rape, and two counts of forcible oral copulation, in exchange for dismissal of the remaining counts, and a stipulated sentence of not more than 24 years. Defendant was sentenced to the mitigated term of three years on count 1, with fully consecutive three-year terms on each of the remaining seven counts.
Defendant filed a notice of appeal. His appointed counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], raising no specific issues on appeal. Defendant has been afforded the opportunity personally to file a supplemental brief, bringing to the courts attention any issues he wishes to raise. No supplemental brief has been filed.
ANALYSIS
I. Standard of Review
When counsel files a brief setting forth a summary of the facts and proceedings, but raises no specific issues, the Court of Appeal must conduct an independent review of the entire record to determine whether it reveals any issues which would, if resolved favorably to the appellant, result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d 436, 441-442.)
Appointed appellate counsel has suggested two possible areas of inquiry: whether defendants plea of guilty in exchange for a stipulated sentence is constitutionally valid, and whether defendant was properly advised that he would receive a 24-year prison sentence.
II. Defendants Plea and Sentence Were Proper
The documentary and orally transcribed proceedings show that defendant was fully advised of his constitutional rights and agreed to waive them when he pleaded guilty. (Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.)
Defendant expressly stated his understanding that he would receive a stipulated prison sentence of 24 years; the court actually sentenced defendant as agreed to 24 years in state prison. Defendants notice of appeal makes clear that he simply wishes he had taken an earlier plea bargain offer of eight years: I didn[]t take the deal, thinking I d[e]served less time. His appeal seeks mercy from the court, as defendant now regards the stipulated 24-year sentence as a very long time. Defendant did not seek a certificate of probable cause; any challenge to his stipulated sentence involves a direct attack on the plea, for which a certificate of probable cause was required. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) Here, defendant received exactly what he bargained for.
We have reviewed the entire record, and have discovered no other potential issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ King
J.
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