Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB055784. John N. Martin, Judge. Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Around February 2004, defendant began prying open the lock on the bedroom door of his girlfriend’s then 11-year-old daughter and asking her to put on tighter and shorter clothing. Soon thereafter, and over a period of a year, his behavior escalated to fondling her and then having forcible sexual intercourse and anal intercourse with the girl while her mother was at work. The girl pleaded for defendant to stop and tried to scream and push defendant off of her, but defendant refused to stop and threatened to kill her parents if she told anyone. Defendant initially denied the allegations but later admitted two sexual incidents, claiming them to be consensual.
The factual background is taken from the probation officer’s report.
On May 1, 2006, defendant was charged with two counts of forcible lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) (counts 1 and 4); two counts of aggravated sexual assault on a child under the age of 14 with defendant being more than 10 years older than the child (Pen. Code, §§ 261, subd. (a)(2) and 269, subd. (a)(1)) (counts 2 and 5); and one count of continuous sexual abuse on a child (Pen. Code, § 288.5, subd. (a)) (count 3).
On August 24, 2006, defendant, represented by counsel, pleaded guilty to counts one and four; in return, defendant was promised that the remaining allegations would be dismissed, and he would be sentenced to a stipulated term of 14 years in state prison (the upper term of eight years on count 1 plus a consecutive midterm of six years on count 2). As part of the plea agreement, defendant expressly waived his right to a jury trial as well as his right to appeal from any motions, or from the conviction and judgment, since he was getting the benefit of his plea bargain.
On January 5, 2007, defendant filed a motion to withdraw his guilty plea, claiming that his attorney failed him to fully advise him of the consequences of the Sexual Violent Predator Act. The People filed opposition. On March 9, 2007, the trial court denied defendant’s motion. Defendant was subsequently sentenced in accordance with the plea agreement with credit for time served.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Defendant filed his notice of appeal on April 30, 2007. On May 31, 2007, defendant filed an amended notice of appeal and a request for a certificate of probable cause. The request of certificate of probable cause was denied on June 5, 2007.
Appellate counsel had initially filed an opening brief on August 20, 2007. However, on September 12, 2007, appellate counsel filed a motion to strike defendant’s opening brief. On October 3, 2007, this court granted in part defendant’s motion. We ruled that this court “will independently review the record under People v. Wende . . ., but the motion is DENIED IN PART in that the [defendant’s] opening brief will not be stricken and will be used in this court’s independent review to determine whether the appeal presents any reasonably arguable issues.” For the same purpose, this court considered the respondent’s brief filed September 20, 2007.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
We have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.