Opinion
A100423.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE NATHAN HENSEL, Defendant and Appellant.
Clarence Nathan Hensel appeals from his sentence following a judgment of conviction entered upon a plea of no contest. Appellants court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
A petition for writ of habeas corpus was filed concurrently with appellants brief on appeal. The petition presents issues regarding the validity of the no contest pleas to two counts and ineffective assistance of counsel as to those counts. We reject that petition by separate order.
By an information filed on April 9, 2002, appellant was charged with the commission of a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1)), an attempted forcible lewd act on a child (§§ 288, subd. (b)(1), 664), and ten additional non-forcible lewd acts on a child (§ 288, subd. (a)). The charges relate to unlawful sexual contact between appellant and the victim, who is his granddaughter and was seven years old at the time of the offenses. In particular, during the summer of 2000, appellant tried to place the victims hand on his exposed penis on two or three occasions in a car and succeeded in doing so once, he touched the victims vaginal area through her clothing on a number of occasions, he attempted to touch the victims vaginal area on another instance when they were in a swimming pool, and he tried to lick the victims tongue during kisses on at least five other instances. In an interview with the police in February 2002, appellant admitted to touching the victims vaginal area over her clothing on five occasions, admitted he once tried to lick the victim while kissing her, admitted putting the victims hand on his exposed penis in a car, and admitted exposing his penis to the victim in a swimming pool.
All further statutory references are to the Penal Code.
As this case was resolved by plea, this factual summary is based upon the testimony of the investigating officer at the April 5, 2002, preliminary hearing.
Appellant completed a plea form on July 29, 2002, pleading no contest to all 12 counts in the information. The plea was entered at a hearing on that same date, and the trial court found that appellant was guilty of the 12 counts based on the record before it. Prior to entry of the plea, the trial court advised appellant that the maximum sentence was a 35-year prison term, and found that appellant understood his legal and constitutional rights as described in the plea form, that appellant had made a knowing, voluntary, and intelligent waiver of those rights, and that appellant understood the nature of the charges and the consequences of his plea.
At the sentencing hearing on September 24, 2002, appellant was sentenced to 31 years in prison. Count three, as the principal term, resulted in a sentence of six years. The nine additional counts of violations of section 288, subdivision (a), each resulted in a consecutive sentence of one-third the midterm, two years, totaling eighteen more years. Count two, the attempted forcible lewd act, resulted in an additional one-year consecutive sentence. Finally, on count one the trial court imposed an additional full consecutive sentence of six years. This appeal followed.
We have reviewed the record and conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d at p. 443. Prior to accepting appellants plea, the trial court confirmed that appellant understood the possible consequences of his plea and the constitutional rights he was waiving. We see no error in the trial courts finding that there was a factual basis for the entry of appellants plea, or in its calculation of the sentence and determination that the terms should be served consecutively. We note that full term consecutive sentencing on count one, commission of a forcible lewd act on a child, was proper under section 667.6, subdivision (c), and that the trial court properly made a separate determination to impose that sentence. (See generally People v. Belmontes (1983) 34 Cal.3d 335, 343-349.)
The judgment is affirmed.
We concur, STEVENS, ACTING P. J., SIMONS, J.