Opinion
A148233
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. K.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 173262)
After defendant pled no contest to child abuse and false imprisonment, he was sentenced to 14 years in state prison. We affirm.
FACTS AND PROCEDURE
On May 15, 2013, following reports of child abuse, police responded to defendant's residence on 100th Avenue in Oakland, where he lived with his two sons.
Because no trial occurred, the facts are taken from the preliminary hearing transcript.
Defendant's sons, John Doe 1, age 10, and John Doe 2, age 12, were interviewed by a child interview specialist at the Mary Graham Center. There they provided details of the abuse. John Doe 1 told the specialist that on the date of the incident he was in the bathroom when defendant began knocking on the door asking him to open the door. When John Doe 1 opened it, they argued, defendant grabbed his son by the arm, and shoved him against the wall. As the argument continued, defendant grabbed John Doe 1 by the neck and arm, slamming him against the door. At some point, defendant told John Doe 1 to go to the backyard to hit a boxing bag. When defendant became "unhappy" with the manner in which John Doe 1 was punching the bag, he put on one of the boxing gloves and punched his son in the mouth.
During the interview, John Doe 1 reported that when he was seven or eight years old, while sharing a bed with defendant in a hotel room, he awoke to find defendant touching John Doe 1's penis. John Doe 1 also described observing defendant masturbate as he watched child pornography.
John Doe 2 was also interviewed by the specialist. He corroborated, in part, John Doe 1's description of the May 15th incident. He also told the specialist he walked in on defendant watching child pornography and masturbating.
The morning following the May 15th incident, police executed a search warrant at defendant's residence, collecting among other things, a video depicting both of the children with duct tape over their mouths and their hands bound behind their backs.
An information was filed on February 13, 2014, alleging one count of lewd act upon a child (Pen. Code, § 288, subd. (a)), two counts of false imprisonment by violence (§ 236), two counts of child abuse (§ 273a, subd. (a)), one count of cruelty to a child by inflicting injury (§ 273 a, subd. (b)), and one count of possession of child pornography (§ 311.11, subd. (a)). It was further alleged defendant suffered one prior strike conviction (§ 1170.12, subd. (c)(1)) and two state prison priors (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
Just short of two years later, defendant pled no contest to two counts of child abuse and one count of false imprisonment and admitted two prior convictions. In view of the plea, the remaining charges were dismissed.
Before defendant was sentenced, he made a motion to withdraw his plea because the district attorney was seeking a 10-year restraining order preventing defendant from having contact with his children. The judge indicated he had reviewed the transcript "and it seemed that [the] 10-year stay-away was not only addressed but I think clarified, at least to the Court's satisfaction, as to the parameters of it." The court clarified the restraining order would be imposed with two exceptions: any letters received by a social worker and screened could be sent to the children, and any family court orders allowing defendant to have contact with the children would be followed.
Defendant was then sentenced to a total of 14 years in state prison and awarded 2,048 days of credit.
Defendant filed a timely notice of appeal, but neglected to check one of the boxes indicating the grounds for the appeal. To remedy this deficiency, on November 22, 2016, appellate counsel filed a motion to amend the appeal asking that the appeal include a challenge to the sentence "or other matters occurring after the plea that do not affect the validity of the plea." Notice of the motion was provided to the Attorney General and no opposition has been filed. By order dated December 14, 2016, this court granted defendant's motion to amend the notice of appeal.
DISCUSSION
Counsel was appointed to represent defendant, and has filed a brief setting forth the facts of the case, but advising the court under the authority of People v. Wende (1979) 25 Cal.3d 436, no issues were found to argue on defendant's behalf. Defendant was notified by his counsel he had 30 days to file a supplemental brief with the court. No supplemental brief has been received.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have examined the entire record ourselves to see if any arguable issue is present. Because defendant admitted the sufficiency of the evidence establishing the crimes by entering a plea of no contest, and further waived his right to appeal his conviction, he is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
In reviewing the plea transcript and "Waiver on Plea of Guilty/No Contest" form, we note defendant waived his right to appeal the conviction. However, he did not waive his right to appeal his sentence and any matters occurring after the plea. --------
We also find no meritorious sentencing issues requiring reversal of the judgment.
Defendant was ably represented by counsel throughout the proceedings and the record does not contain any deficiency in defendant's representation by counsel. We therefore agree with defendant's counsel that no issues are present that could undermine defendant's no contest plea.
Accordingly, the judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.