Opinion
A123925
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. RICARDO M. CARMONA, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Ricardo M. Carmona, as part of a negotiated disposition, pleaded no contest to one count of oral copulation with a child under the age of 16 (Pen. Code, § 288a, subd. (b)(2)) and one count of sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)). His counsel has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendants favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares he notified defendant that he could file a supplemental brief raising any issues he wishes to call to this courts attention. No supplemental brief has been received.
Subsequent statutory citations are to the Penal Code.
Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.
I. FACTS
In October 2008, in response to a complaint by Jane Does parents, the sheriffs department interviewed then 14-year-old Jane Doe. Doe admitted that on four occasions she had sexual intercourse with defendant, a family friend who was 37 years old. She stated that her contact with him was always consensual. Doe agreed to participate in a pretext call to defendant. In this call she discussed her sexual relationship with defendant, and defendant asked Doe if her mother knew they were having sex. He also acknowledged that Doe was 14 years old.
A few days later defendant was detained, taken to a sheriffs department substation and advised of his Miranda rights. After waiving his rights, defendant eventually admitted having consensual sex with Doe on four occasions.
Miranda v. Arizona (1966) 384 U.S. 436.
The Sonoma County District Attorney filed a complaint alleging one count of lewd and lascivious conduct on a 14 year old (§ 288, subd. (c)(1)), two counts of oral copulation with a person under 16 by an adult older than 21 (§ 288a, subd. (b)(2)), and two counts of unlawful sexual intercourse with a minor under 16 (§ 261.5, subd. (d)).
Defendant entered a plea of no contest to one count of violating section 288a, subdivision (b)(2) and one count of violating section 261.5, subdivision (d). The remaining counts were dismissed with a Harvey waiver. The plea was open to the court, with the understanding that the maximum possible prison sentence was four years eight months. Defendant was advised of, and waived his Boykin-Tahl rights, and waived his right under Blakely v. Washington (2004) 542 U.S. 296 to a jury trial on aggravating sentencing factors, and his right to a preliminary hearing. He stipulated to registration as a sex offender pursuant to section 290.
People v. Harvey (1975) 25 Cal.3d 754.
Boykin v. Alabama (1969) 395 U.S. 238, 242-244; In re Tahl (1969) 1 Cal.3d 122, 132.
At sentencing the court denied probation, and sentenced defendant to the mid-term of three years for the violation of section 261.5, subdivision (d), and one-third the mid-term for the section 288a, subdivision (b)(2) violation.
Defendant filed a timely notice of appeal.
II. ANALYSIS
By entering a plea of no contest, defendant admitted the sufficiency of the evidence establishing the crime, and is not entitled to review of any issue that goes to the question of guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea. Therefore, the only issues cognizable on appeal are issues relating to the denial of a motion to suppress or issues relating to matters arising after the plea was entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
Upon our independent review of the record we find no meritorious issues that require further briefing on appeal. Defendant was fully advised of his Boykin-Tahl rights, and his right to a jury trial on aggravating factors, and waived them. He also was competently represented by counsel at all times. It was within the courts discretion to deny probation in light of the seriousness of the offenses, and vulnerability of the victim especially in light of the extreme age disparity, and the abuse of a position of trust. (Cal. Rules of Court, rule 4.414(a)(1), (3) & (9).) The total sentence was below the maximum to which defendant had agreed, and the remainder of the sentencing terms, including the restitution fines, were consistent with the terms of the plea.
III. CONCLUSION
The judgment is affirmed.
We concur:
Marchiano, P. J.
Margulies, J.