Opinion
E054589
05-18-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO BALBUENA, JR., Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF129521)
OPINION
APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On April 7, 2006, a felony complaint charged defendant and appellant Roberto Balbuena (defendant) with one count of rape of an intoxicated person under Penal Codesection 261, subdivision (a)(3).
All statutory references are to the Penal Code unless otherwise specified.
On April 18, 2008, defendant pled guilty to one felony count of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under section 261.5, subdivision (c). Defendant was placed on three years of formal probation on the condition that he serve 120 days in jail.
On January 28, 2010, defendant admitted a violation of probation, and he was reinstated on the condition that he serve an additional five days in jail.
On August 31, 2011, defendant moved to set aside his guilty plea and to dismiss the felony complaint under section 1203.4, subdivision (a). The prosecutor opposed the motion citing the following reasons: (1) defendant had violated his probation making him ineligible for relief; (2) the nature of the case; and (3) the number of penal violations.
On September 16, 2011, the trial court denied defendant's motion, finding that it was a matter of discretionary relief. The court found that defendant failed to complete probation, had a probation violation, was convicted of a new crime (possession of marijuana), and was also convicted of driving under the influence while on probation. Moreover, the court noted that the original charge was a "pretty serious matter." The court also stated that defendant did not have "just one short period of aberrant behavior," but had a string of other criminal charges dating from 1997 to 2003.
The trial court, however, granted defendant's motion to dismiss two other cases, case Nos. RIF098758 and RIM490508, over the prosecutor's objections; these matters have not been appealed.
On September 21, 2011, defendant timely filed a notice of appeal, challenging the denial of his motion to dismiss this case.
STATEMENT OF FACTS
According to the complaint, defendant had sexual intercourse with an intoxicated person in June of 1995, and defendant's identity was established on June 1, 2005, by DNA testing.
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 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, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.