Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS102201
ELIA, J.Defendant Ronald Johnson waived his right to a jury trial and agreed to a court trial on a misdemeanor violation of Penal Code section 647.6 (annoying or molesting a child) on the understanding that if he were to be found guilty he would be given credit for time served and be required to register as a sex offender pursuant to Penal Code section 290. As part of the agreement, the court trial was to be based on written reports by the police, District Attorney's office investigators and defense investigators; no live testimony. Although both parties waived their right to a jury trial and submitted only documentary evidence, defense counsel took the position that this was not a "slow plea"; defendant maintained his innocence.
Subsequently, after reviewing documents submitted by defense counsel and the prosecution, which also included the preliminary examination transcript, the court found defendant guilty. At sentencing, the court ordered defendant to serve 318 days in county jail and gave him credit for time served. In addition, the court ordered defendant to register as a sex offender, pay a $100 restitution fund fine, a $40 court security fee and a $30 court facilities fee. Defendant filed a timely notice of appeal.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.
On September 23, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date we have not received a response from defendant.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) In addition, we have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
We take the majority of the facts from the preliminary examination transcript.
Officer Dias testified that on September 20, 2010, he took a report at the Seaside Police Station from the then 15-year-old victim Jane Doe. Jane told him that on September 17, 2010, someone she knew as "Slick, " asked her to perform oral sex on him and to touch his penis. Officer Dias later determined that Slick was the defendant and was at the time of this event 37 years old.
Jane told Officer Dias that the incident happened after the defendant offered to take her to school. The defendant told her that he would be taking the "long way" to Seaside High School. Defendant drove to Upper Military Avenue and parked near a cul-de-sac. After parking his vehicle, defendant asked Jane to perform oral sex on him and proceeded to lower his pants. When Jane saw his boxer shorts she turned away and refused his request. Several times, defendant requested that she perform oral sex. After she refused several more times he told her to at least touch his penis. She did not touch or see his penis.
Officer Dias spoke with the defendant. He admitted giving Jane a ride to school, but denied that anything inappropriate happened. Officer Dias interviewed "Peaches"; she told him that she believed that Jane was making up the allegations because she had a "crush" on the defendant.
According to Jane, she spent a lot of time at Peaches' house with Peaches' daughters; and Peaches is married to the defendant.
A defense investigator spoke with Jane's aunt. The aunt told her that she spoke with Jane about a week after the incident; Jane had told her aunt that the incident did not happen.
In an amended information, the Monterey County District Attorney charged defendant with one count of violating Penal Code section 288.3, subdivision (a)(1)—contacting or communicating with a minor for the purpose of engaging in lewd and lascivious behavior. The information contained an allegation that the defendant had a prior conviction within the meaning of Penal Code section 1170.12, for assault with a firearm.
Subsequently, after defense counsel outlined the agreement as stated above, the court asked defendant if he wished to waive his right to a jury trial and have his guilt or innocence decided by the court on the misdemeanor charge of annoying or molesting a child. Defendant replied, "Yes." However, the court did not advise defendant of the right he would be giving up by submitting his case to the court on only documentary evidence, i.e. the right to confront the witnesses against him.
The record supports the conclusion that no hearing was held in open court after the documentary evidence was submitted to the court. An "out of court" entry by the clerk indicates that after reviewing the documents submitted by counsel Judge Duncan found defendant guilty of violating Penal Code section 647.6, subdivision (a).
Upon our independent review of the record, including the documents submitted to the court for the court trial, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. Although the trial court did not obtain a separate express waiver of defendant's right to confront the law enforcement officer whose preliminary examination testimony was to be considered by the court and every hearsay declarant whose statements were related by that officer (see Coy v. Iowa (1988) 487 U.S. 1012, 1015-1020; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 51, plur. opn.), nothing in the record before us suggests that defendant would not have submitted the case on the portions of the preliminary hearing transcript considered by the trial court and the hearsay statements of the out of court declarants had the court sought a separate waiver of the right of confrontation.
In addition, since defendant reserved the right to present evidence in his own defense, and did so, his submission did not amount to a slow plea of guilty (see People v. Sanchez (1995) 12 Cal.4th 1, 28-29, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Wright (1987) 43 Cal.3d 487, 496-497), thus defendant's constitutional right against self-incrimination was not implicated by the submission. (See People v. Sanchez, supra, 12 Cal.4th at p. 30; see also People v. Robertson (1989) 48 Cal.3d 18, 40.) Consequently, a personal, on-the-record waiver of that right was not required for the submission. (See People v. Sanchez, supra, 12 Cal.4th at p. 30.)
As to the fines and fees imposed, they were supported by the law and facts.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., WALSH, J.
Judge of the Superior Court of Santa Clara County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.