Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF1228, Richard F. Toohey, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
IKOLA, J.
An amended information charged defendant Israel Antonio Olarte with one count of aggravated sexual assault of a child (Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a)(1); count 1) and one count of forcible lewd act on a child under 14 (§ 288, subd. (b)(1); count 2). The jury found defendant guilty of two counts of a lesser included offense, namely, lewd acts on a child under 14 (§ 288, subd. (a)). The court sentenced defendant to concurrent middle terms of six years in state prison.
All statutory references are to the Penal code.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against defendant, but advised the court he was unable to find an issue to argue on defendant’s behalf. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have not received any communication from defendant. We have examined the record and have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Accordingly, we affirm the judgment.
FACTS
The victim, Y.P., was 11 years old on April 18, 2008. Defendant, a 35-year-old friend of Y.P.’s family, had lived in the same apartment as Y.P.’s family for about one year. According to Y.P.’s testimony, while she was at the sink in her kitchen getting a glass of water, defendant entered the kitchen, put a knife to her neck, and threatened to kill her mother, sisters, and brother if she told her mother. Defendant told Y.P. to pull her pants down, inserted his fingers in her vagina and moved them “back and front” and “inside and outside.” Defendant then put his hands inside Y.P.’s shirt and touched her “boobies” on her skin.
The incident was interrupted when Y.P.’s brother came into the kitchen. Y.P. was pulling her pants and zipper up when her brother walked in. The brother immediately reported his observation to Y.P.’s mother. Y.P. first denied anything had happened, but after awhile, she told her mother, and the police were called. Y.P. told the police what had happened, and that defendant had threatened to kill her and her family. But when asked specifically whether defendant had threatened her with any kind of object, Y.P. said “no.” Y.P. never told the police anything about defendant’s use of a knife.
Defendant was arrested and transported to the police detention facility. The officers advised defendant of his Miranda rights and questioned him in Spanish. After initially denying anything had happened with Y.P., defendant told the officers that Y.P. had been rubbing her vagina and had then asked defendant to rub her vagina. Defendant stated he obliged by touching Y.P.’s vagina over her clothes and that he became aroused. He also told the officers that Y.P. had pulled down her shirt and he had touched her bare breasts. Defendant acknowledged knowing that Y.P. was only 11 years old, but said he did not feel any remorse because it was Y.P’s fault “because she’s the one that told him to touch her.”
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
Pursuant to Anders v. California (1967) 386 U.S. 738, counsel suggested we consider two issues in conducting our independent review of the record.
First, counsel suggests we review whether defendant’s statement to the police was properly admitted into evidence. It was. Although the police interview of defendant was not recorded, there is no evidence in the record to suggest defendant’s Miranda rights were not properly explained, nor is there any evidence to suggest defendant’s statements were not voluntary. Instead, at the time of the interview, it appears from the record that defendant believed his conduct was justified or excused because Y.P. had requested the sexual contact. Thus, there was no error in admitting the officer’s testimony recounting the statements defendant made during his interview.
Second, defendant suggests we consider whether trial counsel was ineffective for conceding during closing argument that defendant was guilty of the lesser offenses. To the contrary, defendant’s confession made clear he was guilty of violating section 288, subdivision (a). There was no hope of defending that violation. The contested question was whether he had used force or fear in accomplishing the act. Given defendant’s confession, counsel’s concession to the lesser offense, while contesting the evidence concerning the alleged use of a knife or physical threats, was unavoidable. And counsel’s candor in acknowledging the commission of the lesser offense no doubt bolstered his credibility with the jury in arguing force or fear had not been proved beyond a reasonable doubt. In effect, the concession saved defendant from a potential 15-years-to life prison term (§§ 269, subd. (a)(5), 289, subd. (a)(1)) and resulted instead in a determinate term of six years. This was effective assistance of counsel, not ineffective assistance.
Our independent review of the record has failed to disclose any other arguable issues.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. ARONSON, J.