Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF126266. Bernard J. Schwartz, Judge. Affirmed with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, J.
I
INTRODUCTION
After a guilty plea, defendant and appellant Marco Carlos Amezola was sentenced to an indeterminate term of 15 years to life. Defendant’s appeal is based on the sentence or other matters occurring after the plea.
II
PROCEDURAL BACKGROUND
In an information filed on September 1, 2006, defendant was charged with (1) three counts of oral copulation with a child under 14 years of age and more than 10 years younger than defendant (Pen. Code, § 269, subd. (a)(4), counts 1, 3, 5); (2) four counts of kidnapping to commit robbery, rape, or oral copulation (§ 209, subd. (b)(1), counts 2, 4, 6, 8); (3) one count of lewd and lascivious act upon a child under 14 years of age, by use of force, violence, duress, menace, and fear of immediate bodily injury (§ 288, subd. (b)(1), count 7); and (4) one count of lewd and lascivious act upon the body of a child under 14 years of age (§ 288, subd. (a), count 9). The information also alleged that defendant “has been convicted” of section 288, subdivision (a), in the present case against more than one victim, within the meaning of section 667.61, subdivision (e)(5), and that in connection with the kidnappings in counts 2, 4, 6, and 8, the movement of the victims substantially increased the risk of harm over and above that level of risk inherent in the underlying offense, within the meaning of section 667.61, subdivision (d)(2).
All statutory references are to the Penal Code unless otherwise indicated.
On September 11, 2006, defendant waived his right to counsel and moved to represent himself in propria persona (in pro. per.) under Faretta v. California (1975) 422 U.S. 806, 835. After warning defendant about the disadvantages of self-representation, the trial court found that defendant knowingly and intelligently waived his right to counsel and granted defendant’s Faretta motion.
Defendant was arraigned on September 15, 2006. At the hearing, defendant pled not guilty to all counts and denied all special allegations and enhancements. On October 13, 2006, the trial court denied defendant’s oral motion to dismiss.
On February 6, 2007, defendant filed an “Ex Parte Notice of Motion for Relief Because Defendant’s Constitutional Rights [under Miranda v. Arizona (1966) 384 U.S. 436 and right to counsel under the Sixth Amendment to the United States Constitution] Where [sic] Violated.” At a hearing on February 23, 2007, defendant indicated that he wanted to continue in pro. per. The trial court deferred hearing defendant’s motion, finding that it should be properly addressed by the trial court in advance of trial. The court ordered the motion sealed.
On August 7, 2007, defendant moved to withdraw his in pro. per. status. The trial court granted the motion and appointed counsel to represent defendant.
On February 7, 2008, under section 995, defense counsel filed a motion to set aside counts 1 through 6 and count 8 of the information. The trial court granted the motion as to counts 5 and 6.
On March 24, 2008, the trial court heard and denied defendant’s February 6, 2007, motion filed in pro. per., regarding the voluntariness of defendant’s statements made to police.
Trial by jury commenced on March 25, 2008; a jury was impaneled and sworn on March 26, 2008. After trial proceedings on March 27, 2008, and under a negotiated plea agreement, defendant withdrew his not guilty plea and pled guilty to (1) count 1—violation of section 269, subdivision (a)(4), involving victim Jane Doe 1, on or about July 1, 2005, through and including September 30, 2005; and (2) count 9—violation of section 288, subdivision (a), involving Jane Doe 3 on or about October 26, 2004, through and including September 30, 2005. In exchange for his plea, defendant was promised a maximum prison sentence of 15 years to life in prison and a dismissal of all remaining counts and enhancements.
Before pleading guilty to counts 1 and 9, defendant was informed of, and waived his rights to, a trial by jury to confront and cross-examine witnesses, to subpoena witnesses for his defense, to testify in his own defense, and to his privilege against self-incrimination. Defendant was also advised of the consequences of his plea, including the maximum penalty and administrative sanctions. In addition, defendant initialed and signed a felony plea form that advised him of his constitutional rights, which he waived. Defense counsel joined in the waiver of defendant’s rights and concurred in his plea. Finding a factual basis for defendant’s plea and that defendant knowingly, understandingly, and intelligently waived his constitutional rights, the trial court accepted the plea and found defendant guilty on counts 1 and 9.
On defendant’s waiver of probation referral and his request for immediate sentencing, the trial court denied probation and sentenced defendant on count 1 to an indeterminate sentence of 15 years to life in prison. The court sentenced defendant on count 9 to a concurrent, middle term of six years in state prison. The court then dismissed counts 2 through 4, 7, and 8 in the interest of justice under section 1385. The court struck the alleged count 9 enhancements within the meaning of section 667.61, subdivisions (e)(5) and (d)(2).
In addition, the trial court imposed a restitution fine in the amount of $500 under section 1202.4, subdivision (b), and imposed, but suspended, a parole revocation fine in an equal amount under section 1202.45, subdivision (b). The court also imposed a court security fee of $40 under section 1465.8, subdivision (a)(1). The court ordered defendant to comply with the DNA and other testing requirements of section 296, and to register as a sex offender on his release from prison under section 290. The court referred to the calculation of defendant’s presentence custody credits to the probation department, on condition that the report would be received and reviewed by the court and counsel, and that the court would award presentence custody credits based on the probation department’s report, unless defendant or counsel objected.
On July 14, 2008, the probation department advised the court that defendant was entitled to 910 days of actual local credits and 136 days of local conduct credits under section 2933.1. However, there is no award of presentence custody credits appearing in the record. The abstract of judgment does not reflect an award of presentence credits.
Under section 1237.1, defendant has requested that the trial court amend the sentencing minutes and the abstract of judgment to reflect an award of presentence custody credits.
III
STATEMENT OF FACTS
Prior to defendant’s guilty plea, Jane Doe 1 and Corona Police Department Officer Alvarado testified regarding count 1. After Jane Doe 1 testified, her videotaped interview with Officer Alvarado was also admitted into evidence and played for the jury. After Jane Doe 1 and Officer Alvarado testified at trial, defendant withdrew his guilty plea and pled guilty to counts 1 and 9.
Because Jane Doe 3 did not testify at trial regarding count 9, the statement of facts with regard to count 9 has been derived from the preliminary hearing and other evidence.
A. Count 1 – Jane Doe 1
Jane Doe 1 testified that she was 11 years old. In 2005, she was living in Corona with her family at an apartment complex. She used to play with defendant’s two sons almost every day. Sometimes, she played with defendant’s sons inside their apartment. At times, defendant was present. On other occasions, defendant’s wife was present.
Jane Doe 1 told the jury that on one occasion when she was about nine years old, defendant did something to her that she did not like and did not want to talk about. At that time, she was in defendant’s apartment, in one of his son’s bedrooms. Although she could not recall how many times defendant did something to her that she did not like, it was more than once. Jane Doe 1 remembered speaking to a police officer about what defendant did to her. She testified that defendant touched her. She did not tell her mom or dad what had happened because she was scared that she would get into trouble.
On September 30, 2005, Officer Alvarado went to the apartment complex in Corona to assist with a child abuse interview. Officer Alvarado interviewed Jane Doe 1 on that date and recorded the interview. The interview was introduced into evidence and played for the jury.
Officer Alvarado testified that Jane Doe 1 told the officer that while playing in defendant’s apartment a couple of weeks before September 30, 2005, defendant picked her up and carried her into the sons’ bedroom. Defendant closed the door and placed Jane Doe 1 on the bed. Jane Doe 1 told Officer Alvarado that defendant pulled down her pants and underwear and licked her “down there” with his tongue. According to the officer, Jane Doe 1 pointed to her genital area when asked to clarify “down there.”
B. Count 9 – Jane Doe 3
In a recorded interview conducted on October 1, 2005, by Corona Police Detective Scott Currie, 11-year-old Jane Doe 3 related that she lived in the same apartment complex as defendant, his wife, and sons. Jane Doe 3 knew Jane Doe 1. When Jane Doe 3 was 11 years old, defendant touched her. Defendant’s two children were probably in the apartment at the time. In the interview, Jane Doe 3 told Detective Currie that defendant pulled her pants down and licked her in her genital area. According to Detective Currie, Jane Doe 3 pointed to her genital area when describing where defendant licked her. Jane Doe 3 did not use a name for her genital area other than to say that it was the area of her body she used to go to the bathroom. She did not tell her parents because she thought she would get into trouble.
IV
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief; he has not done so.
We have now concluded our independent review of the record and find no arguable issues. However, under section 1237.1, we hereby order the trial court to amend the sentencing minutes and the abstract of judgment to reflect an award of presentence custody credits.
V
DISPOSITION
The superior court clerk is directed to correct the sentencing minute order and abstract of judgment to reflect the appropriate custody credits and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J., MILLER, J.