Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC814115
McAdams, J.
Defendant Chapman appeals from a judgment and sentence to state prison following his no contest pleas. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days, to which he has not responded. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.
STATEMENT OF FACTS
The following facts are drawn from the preliminary examination held on October 6, 2008.
M.’s birthday is March 24, 1992, and she was 16 years old at the time of the preliminary hearing. On or about July 27, 2008, she had a fight with her mom, left her home, and went to a friend’s house. On July 30, 2008, she left her friend’s house and went walking on the street in Pittsburg, in Contra Costa County. Defendant was in a car with a girl named Christine. They picked M. up. They took her to defendant’s apartment in Fairfield in Solano County. Christine told her that she was going to make a lot of money as a prostitute. She was told to call Christine “mom” and defendant “dad.”
The next day, they went to a hotel in Fairfield and another one in San Jose. M. was instructed that she was going to have “dates” with “tricks” who were men that wanted to have sex with her. They would pay her money and she was “supposed to give it to dad as soon as the dates were over.” She had dates with multiple men at the hotels. She gave the men oral sex. For more money, she gave some men the “girlfriend experience,” which included “hugging and touching and stuff like that.” She gave the money to defendant. He did not give any of it back to her. She understood that she would get hit if she refused a date. After the dates, she went back with defendant to his apartment in Fairfield.
They got high at the apartment and then went back to the hotel room. In the hotel room, she had intercourse with defendant, even though she told him she did not want to have sex with him.
On July 31, 2008, they went to a Super 8 Motel on The Alameda in San Jose, Santa Clara County. M., defendant, and Christine were there, on and off, for several days, and each day that she was there she had a number of “dates.” After having sex with these men, she gave the money to defendant, and never got any of it back. She also had dates with men at the Wyndham Hotel in downtown San Jose.
At some point at the Super 8 Motel, M. told defendant that she had decided she did not want to have sex with people anymore. He hit her and told her she could not refuse. At another point, while they were at the Wyndham, she again told defendant that she did not want to have any more sex dates with men, and defendant hit her again.
On August 5, 2008, they went to the Crowne Plaza Hotel in Milpitas. She had one date and performed oral sex on him. The man paid her $100 or $120. She gave the money to defendant. Defendant then had sexual intercourse with M. even though M. told him “I don’t feel like it.” Defendant used a Dots brand condom, which he put in the toilet.
Defendant told M. to call her mother and let her know that she was okay. M. called her mother and in the course of the conversation told her what had happened. M.’s mother called the police from her house phone while she was still talking to M. on the cell phone. Defendant came into the room while M. was on the phone with her mother. When he learned that M.’s mother had called the police, he hung up the phone, grabbed his duffel bag, laptop and backpack, and left.
Defendant was arrested on August 5, 2008, at the Crowne Plaza Hotel in Milpitas with approximately $125 in his possession, a laptop, a backpack with individually wrapped packages of Dots brand condoms in it, and a sling pack. A search of the room yielded a used condom in the toilet and two empty wrappers in a trash can in the main portion of the room.
PROCEDURAL BACKGROUND
On October 16, 2008, defendant was charged in a six-count information with: (1) two counts pimping a minor over 16 years of age (Pen. Code, § 266h, subd. (b)(1) - counts 1 & 5); (2) two counts of procuring a minor over 16 years of age for prostitution (Pen. Code, § 266i, subd. (b)(1) – counts 2 & 6); and (3) two counts of forcible rape (Pen. Code, § 261, subd. (a)(2) – counts 3 & 4). The information also alleged that defendant had been previously convicted of robbery, which was a strike, as well as a violent or serious felony; and had served a separate prior prison term for evading the police. (Pen. Code, §§ 667, subds. (b)-(i)/1170.12, 667.5, subd. (b), 667, subd. (a); Veh. Code, § 2800.2.)
On October 20, 2008, defendant appeared with counsel, waived arraignment and pleaded not guilty.
On November 12, 2008, defendant made a Marsden motion, which was denied after a hearing. (People v. Marsden (1970) 2 Cal.3d 118.)
On April 23, 2009, the People filed an amended information. In count 1, the amended information charged a violation of Penal Code section 266, subdivision (h)(a), pimping a minor of unspecified age, which had the effect of making registration as a sex offender discretionary instead of mandatory. In count 5, the amended information charged a violation of Penal Code section 261.5, subdivision (c), a misdemeanor. As part of the negotiated disposition, defendant agreed to admit counts 1 and 5, as amended, and the strike prior conviction and the prior prison term, and the People agreed to dismiss the remaining counts. It was understood that the serious felony allegation under Penal Code section 667, subdivision (a) would “fall out because it wouldn’t be relevant to the charge.”
Apparently, the amended information actually added statutory rape as a seventh count.
Defendant was promised a state prison sentence of no more than seven years. The court accepted the amended information and defendant waived arraignment on it. The court explained that it would not be inclined to impose sex offender registration unless “some extraordinary new information” came to light before sentencing. The court also explained that “the top on this is 7 years. [¶]... [¶] That means that that will be the maximum you could get.... You could get anything lower that I’m convinced is appropriate in your case.” Defendant said he understood.
Defendant indicated through counsel that he wished to enter pleas of no contest. The court explained the effect of a no contest plea and advised defendant of the constitutional rights he would be giving up by pleading no contest. Defendant said he understood his rights and gave them up. The court explained that his maximum exposure on the original information was 62 years in state prison, and 13 years on the amended information. The court also explained that defendant was ineligible for probation because of the strike conviction. Defense counsel informed the court that she would be bringing a Romero motion to dismiss the strike prior conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court advised defendant of the effect on his sentence of admitting a strike prior conviction and stated that it had “given no indication to either side which way I plan to rule on” the Romero motion, and therefore, “your presumptive level of prison is up to seven years.” Defendant said he understood. The court advised defendant about parole, probation, probation revocation, immigration consequences, restitution, fines, fees, lifetime sex offender registration, mandatory submission of DNA samples, AIDS testing, warrantless search and seizure, and the ban on gun possession.
Defendant pleaded no contest to amended counts 1 and 5, and admitted the strike prior conviction and prior prison term allegations. The attorneys stipulated to a factual basis for the pleas in the police reports and the preliminary hearing transcript, and the court found that the plea was knowing, free, and voluntary.
Defense counsel filed a written Romero motion to which the People filed a written opposition. The Romero motion detailed the results of defense investigation showing that defendant’s prior strike conviction was for attempted robbery only and had occurred six years earlier when he was 19 years old. Defense investigation also revealed that M. claimed to be 19 years old on her MySpace page, had told defendant that she was 19 years old, had been hospitalized for psychiatric problems, and had a history of making false sexual assault accusations. Regarding defendant’s prospects for successful rehabilitation, the motion argued that defendant had shown “great focus and determination” in the conduct of his defense, that he hoped to obtain his GED and attend trade school, and that he had the promise of a job working as a cement finisher for his grandfather’s company.
On June 29, 2009, the court heard argument on the Romero motion before denying it. The court accepted defense counsel’s representation that the prior offense was an attempted robbery. It noted that defendant was 19 years old at the time of the offense and had received a three-year state prison sentence. The court also noted that at the time of the current offense, defendant was on parole and had also had an intervening felony contact with the police. The court concluded that it was “not impressed” with defendant’s prospects for rehabilitation at this time. The court declined to order registration. The court listened to M.’s mother’s comments in favor of the maximum sentence.
On June 29, 2009, the court ordered defendant to have no contact with M. and also made a general order of restitution. On count 1, defendant was sentenced to the mitigated term of three years, doubled pursuant to the Three Strikes law, plus one year consecutive for the prior prison term. He was awarded 594 days credit for time served. On count 7, the misdemeanor count of statutory rape, defendant was sentenced to 180 days in the county jail, which was deemed served. The remaining counts were dismissed.
DISCUSSION
On November 4, 2009, appointed counsel filed a Wende brief in this court. This court sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days, to which defendant did not respond. Having reviewed the record on appeal pursuant to People v. Wende, we find that defendant was adequately advised of the consequences of his plea and constitutional rights, and that the record reflects he understood the consequences and his rights and waived the latter. We also find that the trial court did not abuse its discretion in denying his Marsden and Romero motions. Defendant was properly sentenced in accordance with his bargain. No arguable issues appear.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.