P. v. Ortiz

Filed 12/22/08 P. v. Ortiz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, on September 17, 2007, defendant Juan Ortiz pleaded no contest to five counts of lewd and lascivious act on a child under 14 years by force, violence, duress, menace or fear. (Pen. Code, 288, subd. (b)(1).) In exchange for his no contest pleas, defendant was promised his sentence would be 30 years in state prison (top/bottom).

On November 16, 2007, the court imposed the negotiated sentence of 30 years consisting of the following: the mid term of six years on count two, plus consecutive six year terms for counts three, four, five and six. The sentence on these counts was imposed pursuant to section 667.6, subdivision (d),[1] which provides for full, separate, and consecutive terms for each violation of section 288, subdivision (b) if the crimes involved the same victim on separate occasions. ( 667.6, subds. (d) & (e).)

On May 12, 2008, this court granted defendant's motion for relief from default for failing to file a timely notice of appeal, provided a notice of appeal was filed within 10 days from the date of our order. Thereafter, through counsel, defendant requested an extension of time to file a notice of appeal, which this court granted. Accordingly, defendant filed a notice of appeal on June 26, 2008.

We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. On September 18, 2008, we notified defendant of his right to submit written argument on his own behalf within 30 days. On, October 9, 2008, this court received a letter from the defendant.[2]

In his letter, essentially, defendant contends that his counsel was ineffective in failing to explain to him what was happening during the preliminary hearing; in refusing to give him a copy of the complaint; in failing to explain that a plea of no contest was the same as a guilty plea; and in failing to explain that he could file a notice of appeal.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (87 S.Ct. 1396), we have reviewed the entire record and have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about . . . aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) In addition, we have described defendant's contentions. We will explain why we have rejected them. (Id. at p.113.)

Facts[3]

On July 26, 2006, the mother of 10 year old Martha Doe reported to police officers that over the last several years her daughter had been molested by defendant, Martha's step-father.

When interviewed by police officers, the mother said that she had become concerned about her daughter after she noticed the girl's attitude had changed and she had become depressed.

Officers interviewed Martha. She stated that the defendant had been molesting her for several years. Seven incidents took place in the living room and two in the bedroom. Martha said that defendant would molest her when her mother was at work. Defendant would take off her clothes and put his fingers into her "private parts." Martha said that she was afraid to say anything because the defendant told her that he killed animals and his brother killed people.

Procedural History

On June 31, 2007, the Santa Clara County District Attorney filed a complaint in which defendant was charged with one count of aggravated sexual assault of a child ( 269, count one) and four counts of lewd and lascivious act on a child by force, violence, duress, menace or fear ( 288, subd. (b)(1), counts two, three, four and five).

During a preliminary hearing, Martha testified that she lived with her mother, siblings, and the defendant in an apartment in San Jose. Martha stated that defendant had touched her vagina with his "hand and sometimes with his feet." Sometimes this happened over her clothes and sometimes under her clothes. More than three times the defendant touched her on her skin. These incidents happened in different rooms of the apartment. When the defendant touched her vagina with one of his fingers it was on the inside. The defendant also touched her breasts. Sometimes, this would happen over her clothes and sometimes under her clothes. When defendant touched her with his hand, either on her breast or on her vagina, defendant's hand would move. At times, Martha told the defendant to stop or else she would tell her mother. However, defendant told Martha he would beat her mother. Afraid for her mother, Martha did nothing. Also, the defendant was bigger and stronger than Martha and she could not stop him touching her. Martha confirmed that when defendant told her that he and his brother killed animals, she was scared. Sometimes, defendant covered Martha's mouth when she tried to shout that he was touching her. Martha related the details of four specific occasions when the defendant touched her.

On September 17, 2007, at the end of Martha's testimony, defendant's counsel told the court that the parties had reached a resolution in the case whereby the complaint would be amended to either change count one to a violation of section 288, subdivision (b)(1), or by adding a count six. Thereafter, defendant would plead no contest to "five counts, another 288 subsection (b)(1), 30 years top/bottom.[4] As noted, defendant entered pleas of no contest to five counts of violating section 288, subdivision (b)(1).

Before defendant entered his pleas of no contest, the court advised defendant of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709], and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for the charges to which he would be entering pleas was 40 years. The court advised defendant of the immigration consequences of conviction and other consequences of his pleas of no contest including that he would have to register as a sex offender and that he would be placed on parole for five years. The court advised defendant that a different judge would sentence him and that if this judge did not agree with the resolution defendant could withdraw his pleas. Defendant indicated that he understood everything that had been explained to him. After taking defendant's pleas, the court explained to defendant that a plea of no contest was treated the same as a guilty plea. Defendant indicated that he understood. Counsel stipulated to a factual basis for the pleas. The court found that defendant had knowingly, intelligently and voluntarily entered his pleas. Further, the court found a factual basis for the pleas in the preliminary hearing examination and the reports contained in the court file. The court dismissed count one. A Spanish interpreter assisted defendant both during the preliminary examination/change of plea hearing and the sentencing hearing.

As noted, on November 16, 2007, the court imposed the negotiated sentence. Among other things, the court imposed a $10,000 restitution fund fine pursuant to the formula in section 1202.4, subdivision (b)(2)[5] and imposed and suspended a parole revocation fine in the same amount ( 1202.45). In addition, the court ordered general victim restitution and imposed a specific fine of $1275 ( 1202.4, subd. (f)). The court awarded defendant 172 days of custody credits consisting of 150 actual days and 22 days of goodtime/work time credits limited by section 2933.1 to only 15 percent of his actual days in custody. The court ordered defendant to register as a sex offender pursuant to section 290 and to comply with section 290.85.

Defendant's Contentions

Inasmuch as defendant raises ineffective assistance of trial counsel claims, these claims cannot be resolved on the present record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record].)

Inasmuch as defendant claims that he did not know he was pleading guilty, the record belies defendant's claim.

Our review of the entire record satisfies this court that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

Disposition

The judgment is affirmed.

_________________________________

ELIA, J.

WE CONCUR:

______________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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People v. Ortiz

H032742

[1] All undesignated section references are to the Penal Code.

[2] Defendant's communication was translated by his attorney and returned to this court on October 20, 2008, per the court's instructions to defendant's counsel.

[3] The facts are taken from the probation officer's report.

[4] Although defendant's counsel did not state that count one would be dismissed, it was implicit in the way the settlement was presented to the court.

[5] Of course, without the $10,000 cap on restitution fund fines, this formula would have resulted in a fine of $30,000 ($200 x five counts x the number of years of imprisonment the defendant was ordered to serve). (1202.4, subd. (b)(1) & (2).)