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People v. Adame

California Court of Appeals, Second District, Seventh Division
Jul 16, 2008
No. B204051 (Cal. Ct. App. Jul. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300406, Charles R. Palmer, Judge.

Marcia Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


PERLUSS, P. J.

Jose Adame appeals from an order denying his request to modify his sentence under Penal Code section 1170, subdivision (d). We dismiss the appeal.

Statutory references are to the Penal Code.

Adame, a teacher, sexually molested one of his 13-year-old students over a six-year period. Adame was arrested and charged by felony complaint in March 2006 with committing lewd acts upon a child under the age of 14 years (§ 288, subd. (a)) (counts 1 through 4), oral copulation of a child under the age of 16 years (§ 288a, subd. (b)(2)) (counts 5 through 8) and sodomy of a child under the age of 18 years (§ 286, subd. (b)(1)) (counts 9 through 12).

On June 15, 2006 Adame agreed to enter a negotiated plea to committing a lewd act upon a child under the age of 14 years (count 1). In exchange he would be sentenced to the upper term of eight years in state prison, and the remaining counts would be dismissed. Adame was assisted at the plea hearing by counsel.

Adame waived his constitutional rights to a preliminary hearing and a jury trial and pleaded guilty to one count of committing a lewd act upon a child under the age of 14 years. Defense counsel joined in the waivers and plea and stipulated to a factual basis based upon the police report. The trial court found Adame intelligently, voluntarily and knowingly waived his constitutional rights, and there was a factual basis for the plea. Pursuant to the plea agreement, the court sentenced Adame on June 15, 2006 to the upper term of eight years on count 1. Adame received presentence custody credit of 93 days (81 actual days and 12 days of conduct credit). The court ordered Adame to pay a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45. The remaining counts were dismissed on the People’s motion.

On October 2, 2007 Adame filed a motion to “request recall of sentence (Penal Code § 1170(d)),” claiming imposition of the upper term sentence violated his Sixth Amendment right to jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The trial court summarily denied the motion as untimely. (§ 1170, subd. (d).)

On October 12, 2007 Adame filed an in propria persona notice of appeal and a request for a certificate of probable cause. In his notice of appeal Adame purportedly challenged the validity of his plea as well as matters occurring after the plea. Adame requested a certificate of probable cause on the Cunningham issue. On November 26, 2007 the trial court denied his request for a certificate of probable cause.

We appointed counsel to represent Adame on appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On April 14, 2008 we advised Adame he had 30 days within which to personally submit any contentions or issues he wished us to consider. On May 19, 2008 we received a handprinted supplemental brief in which Adame again claimed he was sentenced in violation of his Sixth Amendment rights under Cunningham.

We have examined the entire record and are satisfied Adame’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) Adame’s motion was properly denied; the trial court was without jurisdiction to resentence him. (§ 1170, subd. (d) [sentence must be recalled within 120 days of the defendant’s date of prison

commitment].) Moreover, the order denying the motion was nonappealable. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726; People v. Druschel (1982) 132 Cal.App.3d 667, 668-669.) Because Adame has attempted to appeal from a nonappealable order, we dismiss the appeal.

The appeal is dismissed.

We concur: WOODS, J., JACKSON, J.


Summaries of

People v. Adame

California Court of Appeals, Second District, Seventh Division
Jul 16, 2008
No. B204051 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. Adame

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE ADAME, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 16, 2008

Citations

No. B204051 (Cal. Ct. App. Jul. 16, 2008)