Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County, Nos. SCS208319, SCS204315, Esteban Hernandez, Judge.
McIntyre, J.
In November 2006 in case No. SCS204315, Neil Breitbard entered a negotiated guilty plea to indecent exposure with a prior like conviction (Pen. Code, § 314, subd. 1; all statutory references are to the Penal Code). In December the court stayed imposition of sentence, placed Breitbard on three years' probation and stayed 270 days in custody pending successful completion of probation. The plea agreement provided the "[district attorney] agrees [the] offense may be reduced to [a] misdemeanor after 18 months successful completion of probation."
In February 2007 Breitbard was arrested and charged in case No. SCS208319 with violating sections 288, subdivision (a) and 288.2, subdivision (a). Based on those charges, the probation officer filed a declaration re order to show cause why probation should not be revoked in case No. SCS204315 for Breitbard's failure to remain law-abiding. The court summarily revoked probation. At the beginning of the June preliminary hearing in case No. SCS208319, the court noted the molestations occurred before the probation grant in case No. SCS204315 so there did not seem to be a probation violation. Both counsel agreed. The court inquired whether case No. SCS204315 could be taken off calendar, but after a short discussion concluded it would trail case No. SCS208319.
In April 2009 in case No. SCS208319, Breitbard entered a negotiated guilty plea to three counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) and admitted substantial sexual conduct as to two of the counts (§ 1203.066, subd. (a)(8)). There was no mention of case No. SCS204315 during the change of plea proceedings. At the sentencing hearing in June, the court ordered that probation in case No. SCS204315 would remain formally revoked. The court sentenced Breitbard to 10 years in prison: in case No. SCS208319, the six-year middle term on one count and two years (one-third the middle term) on each remaining count, and in case No. SCS204315, a concurrent 16-month lower term. Breitbard appeals. We reverse the sentence in case No. SCS204315 and otherwise affirm.
BACKGROUND
Case No. SCS204315
On April 7, 2006, Breitbard unlawfully exposed himself in a public place where there were other persons who were offended or annoyed. He was previously convicted of indecent exposure in 2002.
Case No. SCS208319
At the June 20, 2007 preliminary hearing, 13-year-old seventh grader A.C. testified as follows. On one occasion around the time she was in the fourth grade, Breitbard touched her breasts and vagina with his fingers; kissed her lips, breasts, and vagina; and rubbed his penis against her vagina. On a different day, Breitbard rubbed his penis against A.C.'s breasts and filmed her while she was taking a shower. Once a month when A.C. was in the fourth grade, Breitbard digitally penetrated her vagina. When she was in the fifth grade, he put his tongue in her mouth. When she was in the sixth grade, he digitally penetrated her vagina a couple of times. When A.C. was in the fourth, fifth, and sixth grades, Breitbard rubbed her breasts and tickled her vagina. This occurred on more than one occasion when she was in each grade. Breitbard also showed A.C. pornography, masturbated in front of her and had her kiss his penis.
A.C. could not remember the last time Breitbard touched her vagina or breasts, but there were no further molestations after early February 2007, when A.C. was in the seventh grade and Breitbard was arrested. Both the complaint and the amended information alleged the offenses occurred between January 1, 2003, and September 1, 2006.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel listed, as possible but not arguable issues, (1) whether the court erred by denying Breitbard's Marsden motions (People v. Marsden (1970) 2 Cal.3d 118); (2) whether the court abused its discretion by refusing to issue a certificate of probable cause; (3) whether the plea is constitutionally valid; (4) whether there was a sufficient factual basis for the plea; (5) whether Breitbard's waiver of his constitutional right to a jury trial was coerced by the threat of an increased sentence if he proceeded to trial; (6) whether custody credits were calculated correctly; (7) whether there was sufficient evidence to support the convictions; and (8) whether trial counsel was ineffective.
We granted Breitbard permission to file a brief on his own behalf. He responded with these contentions. (1) He pleaded guilty because the court's indicated sentence was eight years, counsel told him it was impossible to win a section 288 case, and People v. Jones (1990) 51 Cal.3d 294 allows convictions in section 288 cases in violation of defendants' constitutional rights. (2) Breitbard was not advised of the strike consequences of his plea. (3) Appointed trial counsel was incompetent. (4) The prosecutor tampered with witnesses. (5) The sentence in case No. SCS204315 was improper because Breitbard was not present at the hearing. Additionally, because the court had ruled that case No. SCS208319 did not constitute a probation violation, the court should have continued probation in case No. SCS204315 or executed the stayed nine-month sentence. (6) The section 314, subdivision 1 conviction should be reduced to a misdemeanor because there was no probation violation.
Because Breitbard did not obtain a certificate of probable cause, he cannot contest the validity of his guilty plea. (§ 1237.5.) In any case, our review is limited to the appellate record, which shows he was advised of the strike consequences of his plea and his plea was voluntary and intelligent. (Boykin v. Alabama (1969) 395 U.S. 238, 242-243.) We are required to follow California Supreme Court cases, including People v. Jones, supra, 51 Cal.3d 294. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Breitbard has not shown that trial counsel failed to act in a manner expected of a reasonably competent attorney or that Breitbard was prejudiced by anything that counsel did or failed to do. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Nor does the record disclose any tampering with witnesses or any infirmity in the sentence.
We requested additional briefing from counsel discussing whether the trial court properly revoked probation in case No. SCS204315. Counsel for both parties have responded. They correctly agree the revocation was improper and the sentence in case No. SCS204315 should be reversed. The offenses in case No. SCS208319 apparently predated the probation grant in case No. SCS204315. Moreover, Breitbard was not accorded the due process protections essential to the probation revocation process. (People v. Vickers (1972) 8 Cal.3d 451.)
Citing the plea agreement in case No. SCS204315, Breitbard's counsel argues the conviction in that case should be reduced to a misdemeanor because Breitbard remained law-abiding after 18 months of probation and probation ended in December 2009. The plea agreement, however, provided the "offense may be reduced to [a] misdemeanor after 18 months successful completion of probation." Such a reduction was neither self-executing nor required.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Breitbard has been competently represented by counsel on this appeal.
DISPOSITION
The revocation of probation and the sentence in case No. SCS204315 are reversed. In all other respects the judgment is affirmed.
We Concur: Benke, Acting P. J., Irion, J.