P. v. Garnett
Filed 8/14/13 P. v. Garnett CA2/8
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opinion has not been certified for publication or ordered published for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
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
CLAYTON GARNETT,
Defendant and Appellant.
B245925
(Los Angeles
County
Super. Ct.
No. BA384662)
APPEAL
from a judgment of the Superior Court
of
County. Gail Ruderman
Feuer and Anne E. Egerton, Judges.
Affirmed.
Allison
H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant
and appellant Clayton Garnett was charged in 2012 with one count of
specifically a sex crime (Pen. Code, § 209, subd. (b)(1))
one count of forcible rape (§ 261, subd. (a)(2)), and one count of sodomy by
use of force (§ 286, subd. (c)(2)). It
was specially alleged as to counts 2 and 3 that defendant kidnapped the victim
and personally inflicted great bodily injury on the victim in the commission of
the rape and sodomy within the meaning of section 667.61, subdivisions (a)
through (d).
The
incident which gave rise to the charges against defendant occurred in September
1999. Defendant approached the victim at
a nightclub. The victim was intoxicated. Defendant walked her to a van and pushed her
inside where she was raped and sodomized.
After pleading not guilty,
defendant moved, pursuant to section 995, to set aside and dismiss counts 2
(rape) and 3 (sodomy) on the grounds the claims were barred by the statute of
limitations (six-year statute at § 800), and the prosecution had not
presented evidence at the preliminary hearing showing any basis on which the
claims could be deemed timely filed.
The trial court denied defendant’s
motion, citing People v. Perez (2010)
182 Cal.App.4th 231 (Perez). The court explained that “with respect to the
factual issue on the 995 motion, the court is to draw all inferences in favor
of the information,†and that there was sufficient evidence presented at the
special circumstances alleged pursuant to section 667.61, subdivision (a),
namely that defendant kidnapped the victim in connection with committing the
rape and sodomy offenses. Accordingly,
the court found the applicable statute of limitations was section 799, and not
section 800, and counts 2 and 3 were therefore timely filed.
A plea
agreement was then reached. Defendant
agreed the information could be amended to add count 4, rape of an intoxicated
person (§ 261, subd. (a)(3)), that he would plead no contest to count 4 and
would waive a statute of limitations
challenge to that new count. The
prosecution agreed to request the low term of three years and dismiss counts 1
through 3 pursuant to section 1385. The
plea agreement also provided defendant waived all rights to appeal save for the
right to challenge the court’s ruling on the section 995 motion as to the
timeliness of counts 2 and 3.
The parties
stipulated to a factual basis for the plea, and the
record, with all requisite admonishments given to defendant. The court found defendant made a knowing and
voluntary waiver of his constitutional rights in entering into the plea
agreement. Defendant was sentenced to
three years in state prison in accordance with the agreement and ordered to pay
various fines and fees. Based on
presentence custody credits, defendant was ordered directly to parole.
The court
signed defendant’s request for a certificate of probable cause and this appeal
followed.
We appointed appellate
v. Wende (1979) 25 Cal.3d 436 (Wende)
in which no issues were raised. The
brief included a declaration from counsel that she reviewed the record and sent
a letter to defendant explaining her evaluation of the record. Counsel further declared she advised
defendant of his right, under Wende,
to submit a supplemental brief within 30 days.
Defendant did not file a supplemental
brief.
We have
examined the entire record and are satisfied that appointed counsel fully
complied with her responsibilities in assessing whether or not any colorable
appellate issues exist. We conclude
there are no arguable appellate issues.
(People v. Kelly (2006) 40
Cal.4th 106; Wende,
The judgment of conviction is affirmed.
GRIMES,
J.
We concur:
BIGELOW,
P. J. RUBIN,
J.
name="_ftn1" title="">[1] All
further undesignated section references are to the Penal Code.
