Opinion
H036673
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. SERGIO GONZALES GOMEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1082814)
Pursuant to a plea bargain, defendant Sergio Gonzales Gomez pleaded no contest to six counts of committing forcible lewd acts on a child. (Pen. Code, § 288, subd. (b).)He was subsequently sentenced to a total term of 48 years in prison.
Further unspecified statutory references are to the Penal Code.
We appointed counsel to represent Gomez in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Gomez of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Gomez. I. F ACTUAL AND P ROCEDURAL B ACKGROUND
As Gomez pleaded no contest to the charges and waived his right to a preliminary hearing, we derive the facts from the probation report and other documents in the record on appeal.
On May 27, 2010, the 23-year-old victim contacted the San Jose Police Department and reported that Gomez, her stepfather, repeatedly molested her between 1993 and 1997 when she was between eight and 12 years old.
The victim said the molestations occurred in Gomez's bedroom when her mother was at work, and Gomez could watch out the window to see if the victim's mother was returning. The victim said Gomez touched her both over and under her clothing, made her orally copulate him and put his penis into her vagina. Though he would sometimes remove the victim's clothing, Gomez would also force the victim to remove her clothes by threatening to kill her mother if she refused.
The victim's mother told police that the victim told her about the molestations about a week before going to the police. When she confronted Gomez, he began to cry, and said the victim started "touching" him when she was nine years old. She asked why he molested the victim, but he just said he did it.
The victim's mother participated in a pretext call to Gomez, and during that call, asked why he had molested the victim. Gomez said he did not rape the victim, because he did not penetrate her fully, and that the victim "came on to him when he was sleeping." Gomez also eventually admitted to putting his penis in the victim's mouth, and said he stopped when the victim was 13 or 14 years old because he realized what he was doing was wrong.
Gomez was interviewed by the police and admitted to molesting the victim, though he again claimed that the victim initiated sexual intercourse.
Gomez was arrested and initially charged with four counts of aggravated sexual assault on a child under the age of 14 and six counts of forcible lewd acts with a child under the age of 14. (§§ 269, 288, subd. (b).) After initially pleading not guilty, Gomez entered into a plea bargain in which he agreed to plead no contest to the six counts of forcible lewd acts with a child under 14 in return for dismissal of the four counts of aggravated sexual assault on a child under 14 and a top/bottom sentence of 48 years in prison.
On January 11, 2011, Gomez was sentenced to 48 years in prison, consisting of consecutive upper term eight year sentences on each of the six counts. The court cited the plea agreement and section 667.6, subdivision (d) as the basis for imposing full-term consecutive sentences. The remaining four counts were dismissed as agreed. Gomez was awarded credits of 205 days, ordered to register as a sex offender and pay a restitution fund fine of $200. The court waived various other fines and fees, including appointed counsel fees, after finding that Gomez had no present ability to reimburse the county.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.