Opinion
H047004
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC AVILA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1881144)
Defendant Eric Avila pleaded no contest to committing a lewd act on a child under 14 years of age. The trial court sentenced him to three years in state prison.
We appointed counsel, who filed an opening brief stating the case and the facts but raising no specific issues. We notified Avila of his right to submit written argument on his own behalf within 30 days. The deadline has passed and we received no response.
We have reviewed the entire record under People v. Wende (1979) 25 Cal.3d 436 (Wende). (See also People v. Kelly (2006) 40 Cal.4th 106 (Kelly).) We conclude there is no arguable issue on appeal, and we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Avila with three counts: Count 1—lewd or lascivious act on a child under fourteen years of age (Pen. Code, § 288, subd. (a)); count 2—oral copulation with a minor under sixteen years of age (§ 288a, subd. (b)(2)); and count 3— oral copulation with a minor (§ 288a, subd. (b)(1)). Avila pleaded no contest to count 1 in exchange for a term of three years and the dismissal of counts 2 and 3. The trial court denied probation and imposed the agreed-upon sentence of three years in state prison.
Subsequent undesignated statutory references are to the Penal Code.
The statement of facts is based on information set forth in the probation report. --------
Jane Doe, the victim, was Avila's daughter. Avila and Doe's mother had separated two years before the offense was reported to police. Avila remained in the home for part of the separation period, however, and he slept in Doe's room.
In 2018, the mother of one of Doe's friends called the police after Doe's friend told the mother that Doe had revealed Avila had "fingered her" and "eaten her out." When confronted, Avila stated, "My life is ruined, I'm done, they are going to believe her."
The police interviewed Doe, who reported experiencing more than 10 sexual incidents with Avila over the prior three years. She alleged that Avila had rubbed her vagina skin-to-skin; rubbed her breasts and buttocks; and put his mouth on her buttocks and vagina. Doe showed the police text messages in which Avila apologized to her and encouraged her to recant. He texted, "Please let's fix this," and "Tell everyone that you were mad," among other things.
II. DISCUSSION
We reviewed the entire record under Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106. The record shows Avila was adequately advised of his rights and the consequences of his plea. It also demonstrates he freely, knowingly, and intelligently waived his rights and entered his plea. He sought no certificate of probable cause, and the record contains no indication of ineffective assistance of counsel. Finally, no sentencing error appears.
We conclude there is no arguable issue on appeal. Accordingly, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.