P. v. Dutro
Filed 2/24/12 P. v. Dutro CA1/5
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRUCE ALLAN DUTRO,
Defendant and Appellant.
A132883
(Contra
Costa County
Super. Ct. No. 05-090993-7)
Appellant Bruce Allan Dutro,
aka Zion Dutro, pled guilty to committing
lewd acts on six different children under the age of 14 (Pen. Code, § 288a).
The victims were four of his daughters and two of his nieces who were in his
custody. He admitted sentencing
enhancements under sections 667, 667.61, subdivisions (a) and (d),
and 1170.12 (a prior 1995 conviction for lewd and lascivious acts with a child
under the age of 14 years, a serious felony), and 667.61, subdivisions (b) and
(e) (multiple victims). Pursuant to the
plea agreement, 48 other felony counts of sexual assault were dismissed,
including 10 counts of forcible rape (§ 261, subd. (a)(2)); three
counts of sodomy by threat
(§ 286, subd. (c)(3)); one count of
subd. (c)(2)); one count of sodomy with a person under 18 (§ 286,
subd. (b)(1)); 26 counts of lewd acts on a child (§ 288,
subds. (b)(1) & (c)(1)); one additional count of lewd acts on a child
under 14 (§ 288a); four counts of oral
copulation of a child under 16 (§ 288a, subd. (b)(2)); one count
of forcible sexual penetration (§ 289, subd. (a)(1)); and one count
of sexual battery by restraint (§ 243.4, subd. (a)). He received a stipulated sentence to an
indeterminate term of 300 years to life.
Assigned counsel has submitted a
brief, certifying that counsel has been unable to identify any issues for
appellate review. Counsel also has
submitted a declaration confirming that Dutro has been advised of his right to
personally file a supplemental brief raising any points which he wishes to call
to the court’s attention. No
supplemental brief has been submitted.
As required, we have independently reviewed the record. (People
v. Kelly (2006) 40 Cal.4th 106, 109–110.)
We find no arguable issues and
therefore affirm.
Background
name="_ftnref3" title="">[3]
On April 30, 2008, three of Dutro’s
daughters went to the Antioch Police Department to report years of sexual abuse
at the hands of their father, Dutro, and with the knowledge of their mother,
Glenda. The victims decided to disclose
their abuse when they learned that their parents were attempting to adopt
children in Mexico. Jane Doe 1 said
that she had been sexually abused by Dutro between the ages of four
and 16, during which time she had been repeatedly forced to orally
copulate him and had been regularly raped and sodomized by him. Her abuse stopped only after she held a knife
to Dutro’s throat and threatened to kill him.
Jane Doe 2 was subject to forced oral copulation and rape by Dutro
between the ages of four and 14. Jane
Doe 3 recalled being molested by Dutro as early as age three and a
half. Dutro told the victims that he was
showing them how “special” they were and how much he loved them. He told them that if you love someone, you
should show them by making them feel good.
Their mother Glenda sent the victims in to “cuddle” with their father,
although she knew they were being sexually assaulted.
to be asleep. If the victims refused to
“cuddle” with their father, they would be beaten. Dutro was convicted in 1995 of lewd acts with
a child under the age of 14. The victim
was another daughter, Jane Doe 4, whom he continued to molest after the
conviction. After Dutro’s arrest for
this offense, he and Glenda talked to all of the girls and told them not to
tell the police what was happening to them.
Jane Doe 5 and Jane Doe 6 were Dutro’s nieces. Jane Doe 5 had been fondled and
digitally penetrated by Dutro when she was 11 years old. Jane Doe 6 said that Dutro had fondled
and digitally penetrated her when she was between the ages of 11 and 16. During a pretext call made by one of the
victims, and recorded by police, the victim confronted Dutro about the abuse
she suffered and he apologized for “what I’ve done to you and your sisters.”
On March 29, 2011, the matter was
assigned for jury trial. Dutro,
represented by retained counsel, and the district attorney advised the trial
court of the plea agreement discussed above.
Dutro completed a written plea form including a waiver of rights. After voir dire of Dutro, the court found
that the plea was “freely, voluntarily and intelligently made with full
knowledge of [his] rights and the consequences of [the] plea.” Dutro entered his pleas “under the doctrine
of People v. West.”
basis for the plea based on the police reports and the preliminary hearing
transcripts. Dutro was further advised
by the court that he was waiving any evidentiary challenge to the truth of the underlying
offenses.
On April 15, 2011, Dutro was
sentenced to 25 years to life on each of the six section 288a counts,
doubled to 50 years to life due to his “strike” prior
(§ 667.61). He was sentenced
consecutively on each count, resulting in the agreed sentence under the plea
bargain of 300 years to life. The
remaining counts and allegations were dismissed. Dutro was ordered to pay $5,270 in victim
restitution, a restitution fund fine of $10,000 pursuant to
section 1202.4, subdivision (b), and $10,000 pursuant to
section 1202.45, which was suspended unless parole is revoked. Dutro was specifically advised of his right
to appeal, and agreed to waive that right, with the concurrence of counsel.
On June 15, 2011, Dutro filed a
timely notice of appeal, including a request for a certificate of probable
cause (§ 1237.5). Dutro indicated
his appeal was from the sentence, or other matters occurring after the plea,
that he was challenging the validity of his plea, and was also taken on the
basis of “New Evidence.” His attached
declaration complained that he had been “refused the option of pleading no
contest,” and that he was not given the opportunity to further state on the
record that, under People v. West, he
continued to maintain his innocence.
Dutro also claimed that the trial judge refused to allow him to make any
statement at sentencing.
name="_ftnref6" title="">[6] He contended that one of the victims had
since recanted her testimony, and that his retained counsel failed to conduct
“further investigation . . . on new discovery.” The request was denied by the trial court.
Discussion
“In the case of a judgment of
conviction following a plea of guilty or no contest, section 1237.5
authorizes an appeal only as to a particular category of issues and requires
that additional procedural steps be taken.
That statute provides: ‘No appeal
shall be taken by the defendant from a judgment of conviction upon a plea of
guilty or nolo contendere, or a revocation of probation following an admission
of violation, except where both of the following are met: [¶] (a) The
defendant has filed with the trial court a written statement, executed under
oath or penalty of perjury showing reasonable constitutional, jurisdictional,
or other grounds going to the legality of the proceedings. [¶] (b) The
trial court has executed and filed a certificate of probable cause for such
appeal with the clerk of the court.’ ”
(In re Chavez
(2003) 30 Cal.4th 643, 650–651.) “[I]t
is settled that two types of issues may be raised in a guilty or nolo
contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which
an appeal is provided under section 1538.5, subdivision (m); and
(2) issues regarding proceedings held subsequent to the plea for the
purpose of determining the degree of the crime and the penalty to be
imposed. [Citations.]” (People
v. Panizzon (1996) 13 Cal.4th 68, 74–75 (Panizzon); People v. Mendez (1999) 19 Cal.4th 1084,
1096.) “[S]ection 1237.5 does not
allow the reviewing court to hear the merits of issues going to the validity of
the plea unless the defendant has obtained a
sought and obtained relief from default in the reviewing court. [Citation.]”
(Panizzon, at p. 75.)
Recognizing
that the scope of permissible review in this instance is limited, appellate
counsel asks only that we review the record to determine if there are any arguable
noncertificate issues. We find none.
The sentence imposed was consistent
with the agreed upon terms of Dutro’s plea.
“ ‘ “When a guilty [or nolo contendere] plea is entered in
exchange for specified benefits such as the dismissal of other counts or an
agreed maximum punishment, both parties, including the state, must abide by the
terms of the agreement.”
[Citation.]’ ” (
383.) “[A] certificate of probable cause
is required if the challenge goes to an aspect of the sentence to which the
defendant agreed as an integral part of a plea agreement” and the sentence “cannot
be challenged without undermining the plea agreement itself.” (People
v. Johnson (2009) 47 Cal.4th 668, 678.)
“[A] challenge to a negotiated sentence imposed as part of a plea
bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it [is] incumbent upon [such a]
defendant to seek and obtain a probable cause certificate in order to attack
the sentence on appeal. [Citation.]” (Panizzon,
supra, 13 Cal.4th at p. 79.)
Dutro in any event expressly waived
his right to any appeal at the time of sentencing. “Just as a defendant may affirmatively waive
constitutional rights to a jury trial, to confront and cross-examine witnesses,
to the privilege against self-incrimination, and to counsel as a consequence of
a negotiated plea agreement, so also may a defendant waive the
agreement. [Citations.]” (Pannizon,
supra, 13 Cal.4th at pp. 80, 83–84.)
Disposition
The judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
All further statutory references are to the Penal Code unless otherwise
indicated.
People v. Wende (1979) 25 Cal.3d 436.
