Opinion
A135230
07-17-2012
THE PEOPLE, Plaintiff and Respondent, v. ARTURO PEDRO GUTIERREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR923960)
Defendant Arturo Pedro Gutierrez appeals from a judgment entered on his plea of no contest to kidnapping (Pen. Code, § 207, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and indecent exposure (§ 314, subd. (1)). His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues on appeal. Having conducted the requested review, we conclude there are no errors or arguable issues for review and, thus, affirm the judgment.
All further undesignated statutory references are to the Penal Code.
I. PROCEDURAL AND FACTUAL BACKROUND
The underlying facts of this case are taken from the preliminary hearing transcript and the probation report. Defendant had hired John Doe, who was apparently a developmentally delayed man in his early to mid-twenties, to trim marijuana and to take care of the animals and property at defendant's ranch. When Doe damaged defendant's car, defendant "[s]lung his head into the car, beating him with firewood, forcing him to clean a recreational vehicle on the property, whipping him with various items, choking him, [and] forcing certain sexual acts to be performed." For a two-week period, defendant kept Doe against his will at the ranch, where Doe was subject to "water torture," sexual assaults, and beatings. At one point, Doe was shut in a small shed used for drying and processing marijuana; on another occasion he was taken to a recreational vehicle and ordered to perform sexual acts on defendant. When Doe told defendant that he wanted to leave the ranch, defendant told him that "he would not be allowed to leave until he had worked off the value of the vehicle." Eventually, defendant drove Doe home, but threatened to kill him if he told anyone about what had occurred at the ranch.
Defendant pleaded no contest to kidnapping (§ 207, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and indecent exposure (§ 314, subd. (1)). Pursuant to the negotiated disposition, the remaining felony counts of oral copulation by force or fear (§ 288a, subd. (a)(1)), making a criminal threat (§ 422), and dissuading a witness (§ 136.1, subd. (b)(2)), together with a prior felony conviction enhancement (§ 667.6, subd. (b)) and the special allegation of probation ineligibility due to prior felony convictions (§§ 1203 (e)(4), 664, 187 [attempted murder], 12021, subd. (a) [felon in possession of firearm]) were dismissed.
Prior to sentencing, defendant moved to withdraw his plea on the ground of ineffective assistance of counsel based on his former counsel's alleged failure to adequately investigate his case. At the ensuing sentencing hearing held that same day, the prosecutor expressed his willingness to permit defendant to withdraw his plea, but indicated that defendant would not be offered any plea deals and would have to take the case to trial. After addressing the court and consulting with counsel, defendant elected not to withdraw his plea.
The trial court denied probation, finding the case presented no unusual circumstances to overcome his presumptive ineligibility, and further finding probation would not be appropriate even if defendant were not presumptively ineligible. The trial court cited defendant's numerous prior convictions, his active involvement in the charged offenses, and the fact that defendant was armed with various weapons beyond just the one required for the assault with a deadly weapon (§ 245) charge, as supporting the denial of probation in the instant case. The court selected the upper term of eight years for the kidnapping conviction, finding numerous aggravating circumstances (planning, dangerousness to society, violence and numerosity of prior convictions, prior prison term, and prior performance on probation and parole) outweighing the solitary mitigating circumstance (early admission of guilt). The court imposed a consecutive one-year term, representing one-third of the midterm, for the assault conviction. Defendant was also sentenced to a 180-day concurrent term for the indecent exposure conviction.
The court awarded defendant 558 days of presentence credits, comprised of 486 days of actual custody credits (§ 2900.5) and 72 days of conduct credits (§ 2933.1). The court ordered defendant to register pursuant to section 290. The court also imposed a restitution fine of $1,800 (§ 1202.4, subd. (b)), a criminal justice administration fee of $90 (Gov. Code, § 29550, subd. (c)), a court security fee of $120 (§ 1465.8), a criminal conviction assessment of $90 (Gov. Code, § 70373), and victim restitution in the amount of $2,430 payable to the Victim Compensation and Government Claims Board (§ 1202.4, subd. (f)). The court suspended imposition of the $1,800 restitution fine, provided there is no subsequent parole revocation.
II. DISCUSSION
Defendant filed a notice of appeal, limiting his challenge to the sentence imposed. Defendant's appointed counsel on appeal reviewed the record in this case, did not identify any trial court errors, and asked this court for an independent review of the record to determine if any arguable issues exist for review on appeal. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) Defendant was advised that he could file a supplemental brief with this court raising any issues he wished to call to our attention, and defendant did not file any such brief.
We have reviewed the entire record and conclude there are no meritorious issues to be argued or that require further briefing on appeal. Defendant was represented by counsel throughout these proceedings. We discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. Lastly, we find no error in the court's determination that section 290 registration was mandated for defendant due to his conviction of section 314, subdivision (1). (§ 290, subd. (c).)
III. DISPOSITION
The judgment is affirmed.
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Sepulveda, J.
We concur: _______________
Ruvolo, P. J.
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Rivera, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division 4, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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