Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC931617
RUSHING, P.J.
Defendant Mark James Porter appeals from a judgment entered after he pleaded no contest to two counts of kidnapping (Pen. Code, §§ 207, subd. (a), 208 subd. (b)) and one count of domestic violence. (Pen. Code, § 273.5, subd. (a).) The incidents underlying these charges occurred beginning on November 30, 2008. On that day, defendant argued with his long term girlfriend, Odelia. Defendant and Odelia were living with Odelia’s parents at the time and Odelia’s father came to her defense, striking defendant in the face. Defendant hit him back. Odelia was allegedly hit in the face while trying to break up this fight between defendant and her father. After this incident, a restraining order kept the defendant and Odelia from seeing each other, and sometime in January 2009, Odelia moved to New Mexico to get away from the defendant.
Although defendant could not see Odelia, he continued to see Odelia’s daughter, with the permission of Odelia’s sister, Iris. Iris is the minor’s legal guardian and the minor has lived with her since she was very young. The minor and defendant had a long standing, close relationship, and the minor called defendant “daddy.” Defendant had picked up the minor from school on many occasions previously with Iris’ and Odelia’s permission, and the school personnel believed defendant to be the minor’s biological father.
On January 13, 2009, defendant decided to pick up the minor from school and meet Odelia for breakfast. Unaware that Odelia had moved away, defendant called her, told her he had picked up the minor, and asked if she wanted to meet the two of them for ice cream? Odelia called Iris to inquire about the minor’s whereabouts. Concerned, Iris contacted the school and discovered that defendant had taken the minor from school without her permission. The school immediately called the police and an Amber Alert was issued for the minor.
Defendant remained in contact with Odelia throughout that day and ultimately returned the minor to Odelia’s mother later that same day. The minor told police that one week prior to the incident, Iris told her to not take any more calls from defendant. The minor also stated that when defendant came to take her from school, she knew that she was not supposed to go with him, but he would not let her stay at school. She told police she, “felt I was kind of being kidnapped.”
After the defendant agreed to withdraw his not guilty plea and plead no contest, the court held a sentencing hearing. At the hearing the court heard testimony and argument from all sides, including pleas for leniency from Odelia, who had since married the defendant and was expecting his child. Pursuant to the terms of the plea agreement, the court sentenced defendant to a term of six years in prison, imposed a variety of fines and granted 135 days of credit for time served. Defendant filed a timely notice of appealed from this sentence.
On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Within that time, we have a letter from the defendant accompanied by letters from Iris, Odelia and a number of others in support of defendant.
Everyone now claims that the whole situation was a terrible misunderstanding based on miscommunication in the family and lies told by the minor who was seeking attention. Despite these claims challenging the factual basis underlying the charges, the defendant fails to raise any arguable issue related to sentencing. Defendant complains that he was not sentenced by a judge familiar with his case which resulted in a harsher sentence. While it is a constitutional right to be sentenced by the same judge who took the guilty plea (People v. Arbuckle (1978) 22 Cal.3d 749), when defendant pleaded no contest, he signed a waiver form, waiving the right to be sentenced by the same judge and agreeing to be sentenced by a different judge.
Pursuant to our obligation as set forth in People v. Wende (1979) 25 Cal.3d 436 and in People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record on appeal. We conclude that there are no arguable issues. Therefore, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.