Opinion
A149543
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID DIMARINO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR317264)
In 2007, David DiMarino was convicted of committing lewd and lascivious acts with the 13-year-old daughter of his girlfriend in violation of Penal Code section 288, subdivision (a), sentenced to prison, and eventually released on parole subject to his agreement not to, among other things, "date, socialize, or form a romantic interest or sexual relationship with any person who has physical custody of a minor." He later formed a romantic relationship with M.F., who had custody of two teenage daughters, ages 13 and 15. He had his parole revoked twice before as a result of his initiation of and refusal to abandon a romantic relationship with M.F. (People v. DiMarino (July 25, 2017, A147094 & A148027) [nonpub. opn.].) This is the third time he has had his parole revoked for continuing to have contact with M.F.; this time he was sentenced to 150 days in jail.
I. STATEMENT OF FACTS
On January 19, 2016, DiMarino signed Special Conditions of Parole stating "You shall not contact or attempt to contact [M.F.] or her immediate family. 'No contact' means no contact in any form, whether direct or indirect, personally, by telephone, in writing, electronic media, computer, or through another person, etc." On August 25, 2016, DiMarino's parole agent saw DiMarino at a restaurant with M.F. The parole agent searched DiMarino's cell phone and found multiple communications with M.F. DiMarino admitted the violation in this case, but his counsel objected to the underlying parole condition on constitutional grounds. The trial court indicated it could not make a ruling on the validity of the parole condition. Having found him in violation of parole, the court ordered him to serve 150 days in jail.
II. DISCUSSION
DiMarino's appellate lawyer filed a brief under People v. Wende (1979) 25 Cal.3d 436, asking us to review the entire record to determine whether there are any meritorious issues to be briefed. This case is to a large extent a rehash of the appeals resolved in July 2017 in A147094 and A148027. As we said in our previous opinion, the appropriate way to seek review is by way of a petition for writ of habeas corpus after exhausting his administrative remedies. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 685 [after administrative remedies have been exhausted, a "parolee may bring a habeas corpus proceeding challenging his or her parole conditions to superior court, appellate court and the Supreme Court, which have original jurisdiction to hear a habeas corpus proceeding relating to parole"].) The trial court, too, noted, "There is no habeas petition in front of me . . . , so . . . [the constitutionality of the parole condition is] not an issue before me right now." "[T]here's nothing I can do about it right now." Once again we are presented with an appeal where no appellate remedy is available because administrative remedies have not been exhausted.
We have reviewed the entire record on appeal and conclude there are no meritorious issues to be briefed. DiMarino was advised of and waived his constitutional and statutory rights in writing, including his right to a hearing, the right to confront witnesses, the right to present evidence, the right to testify, his privilege against self-incrimination, and his right to appeal. Though the prosecutor requested that he be sent back to jail for 180 days, the judge sentenced him to 150 days in jail, with credit for time served. The credits appear to have been calculated correctly. DiMarino appealed on the basis of "the sentence or other matters occurring after the plea that do not affect the validity of the plea." We see no such matters that would form a viable appellate issue.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.