Opinion
H051931
08-30-2024
THE PEOPLE, Plaintiff and Respondent, v. CARMELO ORTIZ CASTRO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2109709)
Danner, J.
Defendant Carmelo Ortiz Castro appeals from a judgment entered after conviction by plea. Appointed counsel for Ortiz Castro has filed a brief asking this court to review the record to determine whether there are any arguable issues on appeal. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Ortiz Castro was advised of the right to file a supplemental brief and has submitted a letter to this court, which we have reviewed. Finding no arguable error that would result in a disposition more favorable to Ortiz Castro, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
As Ortiz Castro pleaded no contest prior to preliminary hearing, we take the facts from the probation report prepared in this matter.
Three young women (J.A. Doe, J. Doe, and N. Doe) who are relatives of Ortiz Castro reported to the police that he had sexually assaulted them.
J.A. Doe, who was still a juvenile when she made the report, told the police that Ortiz Castro, her biological father, sexually assaulted her when she was between the ages of five and six years old. J. Doe, who was still a juvenile when she made the report, told the police that Ortiz Castro, her stepfather, sexually assaulted her numerous times when she was between the ages of four and 10 years old. J. Doe reported that she had attempted suicide because of what Ortiz Castro had done to her. J. Doe told her older sister, N. Doe, about what had occurred. N. Doe told J. Doe that Ortiz Castro had engaged in similar behavior against her. N. Doe, who was no longer a juvenile when she made the report, told the police that Ortiz Castro, her stepfather, had sexually assaulted her on several occasions. One such event occurred when she was between the ages of nine and 10. All three victims reported that Ortiz Castro had threatened to harm their mother if they reported the assaults.
In December 2021, the Santa Clara County District Attorney filed a second amended felony complaint against Ortiz Castro charging him with seven sex offenses: sexual intercourse or sodomy with a child 10 years old or younger (against J.A. Doe) (Pen. Code, § 288.7, subd. (a); count 1), forcible lewd act upon a child (against J.A. Doe) (§ 288, subd. (b)(1); count 2), forcible lewd act upon a child (against J. Doe) (§ 288, subd. (b)(1); count 3), assault with intent to commit rape where the victim is under 18 years of age (against J. Doe) (§ 220, subd. (a)(2); counts 4 &5), sexual intercourse or sodomy with a child 10 years old or younger (against N. Doe) (§ 288.7, subd. (a); count 6), and oral copulation or sexual penetration with a child 10 years old or younger (against N. Doe) (§ 288.7, subd. (b); count 7). As to count 3, the complaint alleged that Ortiz Castro had committed the charged offense against a victim under 14 years of age and had committed in the same case an offense specified in section 667.61, subdivision (c), against more than one victim (§ 667.61, subd. (j)(2)).
Unspecified statutory references are to the Penal Code.
In October 2023, pursuant to a negotiated plea agreement, Ortiz Castro pleaded no contest to count 2, forcible lewd act upon a child under 14 years old (§ 288, subd. (b)(1), against J.A. Doe between February 14, 2014, and February 13, 2016) and count 3, forcible lewd act upon a child under 14 years old (§ 288, subd. (b)(1), against J. Doe between October 18, 2013, and October 17, 2015). He also pleaded no contest to two additional charges: count 8, forcible lewd act upon a child under 14 years old (§ 288, subd. (b)(1), against N. Doe on December 12, 2007) and count 9, sexual battery with restraint (§ 243.4, subd. (a), against J. Doe between October 18, 2013, and October 17, 2015). Ortiz Castro agreed to serve a term of imprisonment of 32 years, and he stipulated to the use of the aggravated term for sentencing on each count. In exchange, the district attorney agreed to move at sentencing to dismiss the remaining counts and enhancements.
In his plea colloquy, Ortiz Castro answered "Yes" when the trial court asked if he understood that his agreement was that he would be committed to the California Department of Corrections and Rehabilitation for a period of 32 years and he would not be "considered for probation [or] for anything less than 32 years." In response to questioning from the court, Ortiz Castro also stated that he had had enough time to consult with his attorney and that he was satisfied with his attorney's advice. At the close of the change-of-plea hearing, Ortiz Castro's counsel asked that Ortiz Castro's sentencing be set out as far as possible, because Ortiz Castro had some medical issues he would like to resolve before being sent to prison.
In January 2024, in accordance with the plea agreement and without objection, the trial court sentenced Ortiz Castro to the aggravated term of four years on count 9, the aggravated term of 10 years on count 2, to be served consecutively, the aggravated term of 10 years on count 3, to be served consecutively, and the aggravated term of eight years on count 8, to be served consecutively, for a total aggregate term of 32 years in prison. The court awarded credits on count 9 of 849 actual and 127 days pursuant to section 2933.1, for a total of 976 days. The court did not award credits for counts 2, 3, and 8 because those terms were imposed consecutively. Pursuant to the request of Ortiz Castro's counsel and under People v. Duenas (2019) 30 Cal.App.5th 1157, the court did not order any fines or fees. The court entered a general order of restitution and dismissed the remaining counts and allegations.
At the close of the sentencing hearing, Ortiz Castro asked to address the court directly because his counsel "is not helping [him] that much." Ortiz Castro requested that he be able to stay "in county" until May to have a scheduled surgery. The court denied the request and informed Ortiz Castro that the prison had medical services. Ortiz Castro's counsel put on the record that he had previously conveyed to the court Ortiz Castro's request to stay locally, and the court had indicated that it would deny the request. The court agreed with counsel's summary. Counsel stated on the record he had previously conveyed the court's decision on this issue to Ortiz Castro. The court suggested to counsel that he file an appeal on Ortiz Castro's behalf and indicated that it would sign the certificate of probable cause. Counsel replied that he would.
In March 2024, Ortiz Castro timely appealed, challenging the validity of the plea. Ortiz Castro requested and received a certificate of probable cause.
II. DISCUSSION
Appointed counsel for Ortiz Castro has filed a brief asking this court to review the record to determine whether there are any arguable issues on appeal. (See Wende, supra, 25 Cal.3d 436.) Ortiz Castro has submitted a letter to this court. In his letter, Ortiz Castro states that he was not in the United States during the dates of the crimes of conviction. He states he was deported and was not in the United States between June 2007 and December 2018. He asserts he returned to the United States in 2018. Ortiz Castro asks that we review his case carefully. He states the charged crimes "were planned by someone." He implies-without citation to any record evidence-that someone (presumably a relative of the victims) asked him for thousands of dollars, which he did not provide. Ortiz Castro was subsequently accused of intentionally touching the victims.
Ortiz Castro's original letter to this court was written in Spanish. Ortiz Castro's appellate counsel provided an English translation of the letter to this court.
The probation report states that Ortiz Castro did not discuss the details of the offenses with the probation officer, but he stated he was innocent and the victims are liars. Ortiz Castro also told the probation officer he disagreed with the negotiated plea and believed he should have received a lighter sentence.
Ortiz Castro's factual assertions about his deportation history and threats made by others do not appear in our record on appeal. If a claim is based on information outside the record, we cannot properly consider it on direct appeal. (People v. Smith (2007) 40 Cal.4th 483, 507.) Because Ortiz Castro's letter raises issues dependent upon evidence and matters not reflected in the record on appeal, we will not address those contentions in this proceeding. (People v. Jenkins (2000) 22 Cal.4th 900, 952-953 (Jenkins).)
A habeas corpus proceeding may appropriately develop a record beyond the record on appeal. (Jenkins, supra, 22 Cal.4th at p. 953.)
We have reviewed the record on appeal under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Ortiz Castro. We therefore affirm the judgment.
III. DISPOSITION The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Grover, J.