Opinion
H045311
07-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHANG KIM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1451733)
Defendant Daniel Chang Kim pleaded no contest to forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)); forcible rape (§ 261, subd. (a)(2)); and a forcible lewd act on a child less than 14 (§ 288, subd. (b)(1)). In accord with a plea agreement, the trial court imposed a total term of 18 years.
Subsequent undesignated statutory references are to the Penal Code.
We appointed counsel to represent Kim in this court. Appointed counsel filed an opening brief stating the case and the facts, but raising no specific issues on appeal. We notified Kim of his right to submit written argument on his own behalf within 30 days, and Kim timely responded.
We reviewed the record under People v. Wende (1979) 25 Cal.3d 436 (Wende), and we have reviewed Kim's contentions as required by People v. Kelly (2006) 40 Cal.4th 106 (Kelly). We conclude there is no arguable issue on appeal, and we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is based on the evidence introduced at the preliminary hearing.
The prosecution alleged Kim repeatedly molested his girlfriend's two young daughters, Doe and Roe. Kim met their mother in South Korea, where both daughters were born. They moved to the United States in 2007. Kim bought them a house in Gilroy and visited them several times a week.
The daughters' names share the same initials. We refer to them as Doe and Roe to avoid confusion and protect their anonymity.
Kim first molested Doe at a hotel room while they were on vacation together with Roe and their mother. Doe was 13 years old. Kim fondled Doe's breast under her shirt. She tried to block or grab his hand to stop him, but it did not work. Doe testified that Kim touched her breast more than 20 times. Doe later told her mother Kim had been touching her.
Roe testified that Kim touched her in the summer before she entered the seventh grade. Kim sat Roe on his lap and put his hands inside her vagina. Roe tried to escape and was able to get off his lap. On another occasion, Kim took Roe into her mother's bedroom, laid her on the bed, and took off her pants. He then touched her breasts and moved fingers in and out of her vagina. Roe thought Kim touched her more than 20 times. He also put her hand on his penis on at least 10 occasions.
Roe was in the seventh grade when Kim had sex with her for the first time. Sometimes she tried to stop him or push him away. Sometimes he would stop, and sometimes he would not. Kim had sex with Roe in a hotel two or three times when they were on trips. Sometimes he would take pictures of his penis in her vagina, and he took pictures of Roe when she was naked.
When Roe was in high school, she told a friend that she had been raped. The friend arranged for Roe to meet with police, and Kim was subsequently arrested. Kim then wrote a five-page letter to Roe urging her to tell the police she had lied.
B. Procedural Background
The prosecution charged Kim with 24 counts: counts 1 through 3—aggravated sexual assault of a child under 14 (§ 269); counts 4 and 5—forcible sexual penetration (§ 289, subd. (a)(1)); counts 6 through 10 and count 12—forcible rape (§ 261, subd. (a)(2)); count 11—forcible oral copulation (§288a, subd. (c)(2)); counts 13 through 22—lewd act on a child aged 14 or 15 (§ 288, subd. (c)(1)); count 23—attempting to dissuade a witness (§ 136.1, subd. (b)(2)); and count 24—forcible lewd act on a child under 14 (§ 288, subd. (b)(1)).
The prosecution amended the information to add count 24 when the parties entered into the plea agreement. --------
The parties negotiated a plea agreement whereby Kim pleaded no contest to count 5 (forcible sexual penetration), count 6 (forcible rape), and count 24 (forcible lewd act on a child under 14) in exchange for a total term of 18 years. The trial court imposed the agreed-upon sentence of 18 years, consisting of consecutive six-year terms for each count.
Kim filed a timely notice of appeal, but did not obtain a certificate of probable cause.
II. DISCUSSION
Defendant raises various contentions, many of which are either incoherent or unintelligible. Construing his claims broadly, he argues his attorney provided ineffective assistance and coerced him to enter the plea agreement. He further alleges unfair and discriminatory treatment, asserts his innocence, and argues he was deprived of the right to a jury trial.
We have reviewed the record and considered Kim's claims in accordance with Wende and Kelly, supra. As a part of our review under Wende, we have further reviewed the record for any incidence of ineffective assistance of counsel that could arguably excuse the failure to obtain a certificate of probable cause. We perceive no such grounds.
Based on our review, we conclude Kim's claims are barred by the failure to obtain a certificate of probable cause as required by section 1237.5 and Rule 8.304 of the California Rules of Court. Furthermore, based on our independent review, we conclude there are no arguable grounds for appeal. Accordingly, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.