Opinion
C086333
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. KHANH Q. LE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF170808, CRF171712)
Appointed counsel for defendant Khanh Q. Le filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
BACKGROUND
We provide the following brief description of the facts and procedural history of the cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) A. Case No. CRF17-0808 —The Drug Case
A July 2017 information charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 2). Defendant waived a preliminary hearing and was held to answer on the charges. He was released on bail.
In September 2017 defendant pleaded no contest to count 1, possession of methamphetamine for sale. The factual basis for the plea was as follows: "[O]n or about March 22, 2017, . . . defendant knowingly possessed a useable amount of methamphetamine (˜10 grams)," which he "intended to sell." Under the terms of the plea agreement, defendant was released on his own recognizance pending sentencing. Count 2 was dismissed with a Harvey waiver. B. Case No. CRF17-1712 —The Attempted Rape Case
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On June 24, 2017, defendant entered a bedroom where the victim was sleeping. He pulled her shorts off, climbed on top of her, and attempted to insert his penis into her vagina for his sexual gratification. The victim awoke and pushed defendant off.
A September 2017 amended information charged defendant with attempted rape (Pen. Code, §§ 664/261, subd. (a)(4), count 1), and sexual battery (§ 243.4, subd. (a), count 2). It was further alleged for both counts that defendant was out on bail or released on his own recognizance in the drug case when he committed the sexual offenses in the attempted rape case (§ 12022.1).
Further unspecified statutory references are to the Penal Code.
Defendant pleaded no contest to both counts and admitted the on-bail enhancement. Under the terms of the plea agreement, defendant agreed to a Cruz waiver whereby he would be released on his own recognizance pending sentencing, and if he obeyed all laws and appeared for sentencing, he would be permitted to withdraw his no contest plea to count 1, the attempted rape charge. C. Sentencing in Both Cases
People v. Cruz (1998) 44 Cal.3d 1247 (Cruz). --------
On November 27, 2017, the court sentenced defendant in the drug case and the attempted rape case. The court found defendant sufficiently complied with the terms of the Cruz waiver and defendant was permitted to withdraw his no contest plea to count 1 in the attempted rape case. Pursuant to the terms of the plea agreement, the court sentenced defendant to the midterm of three years for the sexual battery offense in the attempted rape case, a consecutive two-year term for the on-bail enhancement, and a consecutive eight months for the methamphetamine possession offense in the drug case. Defendant was sentenced to a total of five years eight months in state prison. The court ordered defendant to register as a sex offender pursuant to section 290 and imposed a $300 fine under section 290.3. The court also imposed a $300 restitution fine (§ 1202.4), a $300 parole revocation restitution fine, stayed pending successful completion of parole (§ 1202.45), an $80 court operations assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373). He was awarded 46 days of actual credit and 46 days of conduct credit in the attempted rape case, and one day of custody credit for the drug case. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: DUARTE, J. HOCH, J.