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People v. Bean

California Court of Appeals, Sixth District
Apr 29, 2009
No. H033593 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SHAWN DAVID BEAN, Defendant and Appellant. H033593 California Court of Appeal, Sixth District April 29, 2009

NOT TO BE PUBLISHED

Santa Clara County, Super. Ct. No. CC891598

Premo, J.

Defendant Shawn David Bean was charged by information with one felony count of sexual intercourse or sodomy with a child 10 years of age or younger, by a person 18 years or older (Pen. Code, § 288.7, subd. (a), count 1), one felony count of oral copulation or sexual penetration with a child 10 years of age or younger, by a person 18 years or older (id., subd. (b), count 2), six felony counts of lewd or lascivious act on a child under 14 (§ 288a, counts 3-8), and six felony counts of lewd or lascivious act on a child by force, violence, duress, menace and fear (§ 288, subd. (b)(1), counts 9-14). The information also included a multiple victim clause. (§ 667.61, subds. (b) & (e).) After initially pleading not guilty to the charges, Bean subsequently accepted a plea bargain in which he agreed to, in exchange for a sentence of 40 years to life and the dismissal of the remaining 12 counts, plead guilty to counts 1 and 9 and admit the multiple victim allegation. It was agreed the trial court could consider the facts of all charged offenses in determining the sentence. (See People v. Harvey (1979) 25 Cal.3d 754.) At sentencing, the trial court denied Bean’s oral motion to withdraw his plea and sentenced him to a term of 25 years to life prison on count 1 to run consecutive with a sentence of 15 years to life on count 9, for a total term of 40 years to life.

All further statutory references are to the Penal Code.

We appointed counsel to represent Bean in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Bean of his right to submit written argument in his own behalf within 30 days. We received a supplemental letter brief from Bean on March 2, 2009. In that brief, Bean contends his trial counsel was ineffective and the trial court erred in denying his Marsden motion.

People v. Marsden (1970) 2 Cal.3d 118.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal. We will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

We derive the facts from the testimony from the preliminary hearing and other papers in the clerk’s transcript.

Bean, who was born on June 24, 1969, began dating the victims’ mother in December 1998. When they began dating, the victims’ mother already had three children; one boy, and two girls (victim 1 and victim 2). Victim 1 was approximately one month old and victim 2 was nearly four years old when Bean began dating their mother. In June of 2000, the victims’ mother, pregnant with Bean’s daughter, moved from her parents’ home in San Jose to Modesto. In late June 2000, Bean also moved to Modesto where he lived with the victims’ mother, who gave birth to their daughter in early July. The victims’ mother and the children moved back to San Jose, without Bean, in May 2003.

In October 2004, Bean and the victims’ mother moved in together in San Jose, and were married in July 2005. On December 18, 2007, victims 1 and 2 told their mother that Bean was molesting them.

Victim 2 testified that, while they lived in Modesto, Bean had touched her with his hands in an area where she did not need to be touched. When asked to mark on a figure drawing where Bean had touched her, victim 2 marked the groin area of that drawing and said she went to the bathroom with that part of her body. After first denying any further touching, victim 2 said that Bean made her touch his groin area by pulling her hand.

After moving back to San Jose, Bean again touched victim 2 in the groin area, as well as on her chest when her mother was at work and her siblings were asleep. Bean also made her touch his groin and his “private.” This occurred more than once, but she could not recall how often. Bean told her he would get mad, beat her and kill her if she told anybody.

Although she could not recall at the preliminary examination, victim 2 had previously written a note to the police officer in which she stated that Bean had pulled her pants down.

Victim 1 testified that Bean had first touched her in a way she did not like when she was four years old and they were living in Modesto. He touched her like that more than once, and touched her in the part of her body where she goes to the bathroom with and also touched her in the mouth. He did this touching with a part of his body that was located in his groin area and “[l]iquidy stuff” would come out of that part of his body. When this touching happened, neither she nor Bean was wearing pants or underwear. It happened more than once, but victim 1 could not recall if it happened more than five times.

Victim 1 testified that Bean put the same part of his body between the skin in the part of her body that came apart when she went to the bathroom, and it hurt when he did so. Bean did the same things to her after the family moved back to San Jose and, on one occasion while living in San Jose, victim 1 saw Bean moving “[u]p and down” on victim 2.

On June 25, 2008, the trial court held an in camera hearing on Bean’s Marsden motion. After hearing from both Bean and his counsel, the trial court denied the motion.

At the change of plea hearing on August 25, 2008, Bean was advised that the maximum penalty he faced if convicted of all charges was 220 years to life. Also at that hearing, the People amended count 9 to narrow the range of dates involved. Following that amendment of the information, the trial court confirmed with Bean that the amended count “agree[d] with [his] recollection” and was “more factually correct.” Bean pleaded guilty to counts 1 and 9 and admitted that the convictions involved more than one victim.

The information originally alleged that Bean committed a lewd or lascivious act on victim 2 “[o]n or about and between October 1, 2000 and May 31, 2003” when victim 2 was five, six, seven and eight years old. At the hearing, the People changed “October 1, 2000” to “February 25, 2003” and deleted the numbers “5, 6, 7” from the reference to victim 2’s age. The trial court then confirmed with Bean that the amended count “agree[d] with [his] recollection” and was “more factually correct.”

At sentencing on October 24, 2008, Bean indicated that he was not comfortable with proceeding, as he did not feel that he was being “given a fair shake” as he had “never had any trouble with the law before.” He denied that he ever threatened the victims or used force. Bean also indicated that he believed a sentence of 40 years to life was unfair when he “see[s] in the paper people that kill people and get less time.” The trial court advised Bean that it would not allow him to withdraw his plea unless there was a legal basis for doing so, and that it believed Bean “understood everything at the time [it] took [his] plea, and... there’s a factual basis for the plea.” The trial court then sentenced Bean to a total term of 40 years to life on counts 1 and 9, and dismissed the remaining 12 charges.

II. DISCUSSION

Bean’s claims attack the validity of his guilty plea. However, Bean’s notice of appeal is solely “on the sentence or other matters occurring after the plea.” Therefore, Bean is precluded from challenging the validity of the plea he entered on August 25, 2008, because he has not sought and obtained a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Mendez (1999) 19 Cal.4th 1084, 1096.)

Bean’s letter brief appears to state a claim of ineffective assistance of counsel. However, this claim cannot be resolved on the appellate record before us. The California Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

III. Disposition

The judgment is affirmed.

WE CONCUR: Rushing, P.J., Elia, J.


Summaries of

People v. Bean

California Court of Appeals, Sixth District
Apr 29, 2009
No. H033593 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Bean

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHAWN DAVID BEAN, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Apr 29, 2009

Citations

No. H033593 (Cal. Ct. App. Apr. 29, 2009)