Opinion
C082566
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CARMINE DEBARTOLO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF142743)
Appointed counsel for defendant Anthony Carmine Debartolo asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
I. BACKGROUND
We provide the following brief description of the facts and procedural history of the case pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
Because the parties stipulated to a factual basis for defendant's eventual no contest plea, the facts are summarized from the probation report, which derived the facts from the Sutter County Sheriff's report and the preliminary hearing transcript.
On November 25, 2014, the aunt of the minor victim, V.P. (born in 2007), contacted the Sutter County Sherriff's Department to report that the victim had disclosed to her grandmother that she had been molested by defendant. The next day, while being interviewed by a child protective services representative, the victim reported that defendant had been molesting her since she was four years old, most recently on Halloween 2014 when defendant picked her up from her bed, carried her to the table, and "played" with her by placing his tongue and finger in her vagina. The victim described defendant's actions including that he made her watch pornographic movies; pulled down her shorts and pajamas and touched the outside of her vagina with his hands and fingers; inserted his fingers into her vagina; came to her bed, pulled down her pants, and placed his tongue on her vagina; showed her a vibrator and placed it against her vagina; and removed her shorts, placed her against his crotch, and bounced her up and down.
The victim said she wanted to tell someone what defendant was doing but defendant threatened to kill her. She explained that defendant and her mother are both deaf and defendant had cameras all over the house, so he could see if she was telling her mother. However, she believed the camera in the garage was broken so she was able to tell her mother using sign language in the garage about the things defendant had done.
During a second interview on December 10, 2014, the victim disclosed that, on her fifth birthday, defendant touched her breasts, vagina, and butt with his hands.
Defendant was charged by information with two counts of engaging in oral copulation or sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)—counts 1 and 2) and three counts of committing a lewd or lascivious act on a child under the age of 14 years (§ 288, subd. (a)—counts 3, 4, and 5).
Undesignated statutory references are to the Penal Code.
After a trial date was set, defendant made an oral motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 to relieve his appointed attorney. Following a closed hearing, the court denied defendant's motion.
Defendant entered a "straight-up" plea of no contest to count 3 with no indicated or negotiated sentence, and the prosecution dismissed the remaining counts subject to a Harvey waiver. The parties stipulated that a factual basis existed for the plea. The trial court referred the matter to the probation department and to psychologist James Rokop, Ph.D., for preparation of a report on defendant's mental condition. (§ 288.1.)
People v. Harvey (1979) 25 Cal.3d 754. --------
At the sentencing hearing, after having read and considered the probation report, the report prepared by Dr. Rokop, the preliminary hearing transcript, and defendant's statement in mitigation, the court denied probation and sentenced defendant to the upper term of eight years in state prison. The court awarded defendant 673 days of presentence custody credit and imposed fees and fines as follows: a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine, stayed pending successful completion of parole (§ 1202.45), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $300 fine (§ 290.3). Defendant was also ordered to pay $3,419.76 in victim restitution.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel for defendant filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. To date, defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
II. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.