Opinion
H036189
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. REGINALDO GERVACIO ELIAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC827105)
Pursuant to a negotiated plea agreement, defendant Reginaldo Gervacio Elias pleaded guilty to five counts of committing a lewd act on a child by force. (Pen. Code, § 288, subd. (b)(1).) Defendant moved to withdraw his plea and the trial court denied the motion. The trial court sentenced defendant to the agreed-upon 24 years in prison. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. The 30 days have expired and we have received no written argument from defendant.
Further unspecified section references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts relating to the charged crimes are taken from the probation report.
The victim was 12 years old when she reported that defendant had been molesting her since she was in the second grade. In subsequent interviews with law enforcement officers' defendant admitted having skin-to-skin contact with and digital penetration of the child's vagina. Defendant was charged with one count of aggravated sexual assault of a child, the sentence for which is 15 years to life (§ 269), and five counts forcible lewd acts upon a child (§ 288, subd. (b)(1)).
Defendant was initially represented by the public defender. On or about March 25, 2009, his family retained private counsel Miguel Chacon. Chacon was suspended from the practice of law beginning about April 3, 2009 and ending May 3, 2009. During that 30-day period, attorney Benjamin Koller appeared at a status review hearing on defendant's behalf, taking over for the public defender. The preliminary examination was scheduled for May 12, 2009. On the day set for the preliminary examination, defendant appeared with attorney Chacon. The victim and other witnesses were present and prepared to testify at the hearing when defendant agreed to plead guilty in exchange for a sentence of 24 years in prison, no more and no less, and dismissal of the aggravated sexual assault count. The trial court advised defendant of the terms and consequences of the plea and the prosecutor conducted a detailed voir dire.
On December 17, 2009, defendant's new attorney, Jamie Harley, filed a motion to withdraw the plea on the ground defendant had been denied effective assistance of counsel. According to Harley's declaration submitted with the motion, during the weeks prior to the preliminary examination, roughly the time during which Chacon was suspended, defendant's family had learned that the victim had recanted part of her story but Chacon had not investigated and, because of his suspension, could not have investigated these new facts.
The trial court conducted an evidentiary hearing, taking testimony from defendant as well as from Chacon, Koller, and Bernardo Saucedo, the public defender who represented defendant at the outset. Harley's declaration was not entered into evidence nor did she testify. Chacon and Saucedo explained, as best they could recall, the sequence of events resulting in the several changes of counsel. Chacon also testified that he had discussed the possibility of the victim's recanting with defendant and with defendant's family on several occasions, including the day set for the preliminary examination, and that the family repeatedly confirmed that the victim had not recanted.
The trial court concluded that the evidence did not reveal any factors that might have overcome defendant's judgment in choosing to enter a guilty plea. In particular, there was no evidence that before, during, or immediately after the preliminary hearing the victim recanted her statement or that she wanted to recant. The court concluded that the record failed to establish good cause to challenge the validity of the plea. "The Court is satisfied that with the knowledge that [defendant] had and the legal choices that were presented to him that he made the choice that he believed to be best for him based on the state of the record and evidence as known to him at that time. And the disposition seems consistent with the evolution of state of affairs over the month, two, three-month period where the Defense was aggressively trying to seek less than a life disposition, and when made or given that option on the day of the prelim [defendant] chose to accept it."
II. DISCUSSION
Defendant requested and received a certificate of probable cause, which is required by section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty plea. Accordingly, we have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal.
III. DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.