Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F06908902 Jonathan B. Conklin, Judge.
Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J., and Dawson, J.
OPINION
Appellant Donald Mark Linton was charged by information with seven counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-5, 7, 8), four counts of committing a lewd or lascivious act against a child age 14 or 15 (§ 288, subd. (c)(1); counts 9-12) and a single count of committing a forcible act of sexual penetration against a child under age 14 and seven or more years younger than the perpetrator (§§ 269, subd. (a)(5), 289, subd. (a); count 6). It was also alleged that the acts alleged in counts 2, 5 and 8 constituted substantial sexual contact with a victim under age of 14 (§ 1203.066, subd. (a)(8)). On March 13, 2008, appellant, pursuant to a plea agreement, pled no contest to counts 2, 5 and 8 and admitted the accompanying substantial-sexual-contact allegations.
All statutory references are to the Penal Code.
One of the terms of the plea agreement was that appellant would receive a prison sentence of nine years. On April 11, 2008, at sentencing, after appellant’s counsel informed the court that the minimum sentence authorized for the instant offenses was ten years, appellant waived his right to withdraw his plea and agreed to a term of ten years. Thereafter, the court imposed a ten-year prison term, consisting of the six-year midterm on count 2, and two years, representing one-third of the midterm, on each of counts 5 and 8.
On April 21, 2008, appellant filed a notice of appeal, in which he indicated his appeal was “based on the sentence or other matters occurring after the plea.” Appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We will affirm.
Our factual summary is limited to counts 2, 5 and 8.
The report of the probation officer indicates that appellant was the boyfriend of the victim’s mother.
At the preliminary hearing, City of Fresno Police Detective Nora Adams testified the victim told her (the detective) the following. On one occasion, when the victim was 13 years old, “her mother and [appellant] were talking to her about sex education.” Appellant asked the victim “if she wanted to experience sexual pleasure.” The victim “told him ‘No,” but the victim’s mother “told her it was going to be okay.” At that point appellant “started to stroke her breasts over her clothing and under her clothing.”
“After that happened, [appellant] asked [the victim] to lay down.” She again refused, her mother again assured her it would be “okay,” and the victim lay down on the couch. Appellant “took off her pants and underwear” and “was trying to insert his penis in her vagina.” The victim “felt the penis on her vagina.”
“[A]fter that,” the victim got dressed and went into her mother’s bedroom. Appellant followed her into the bedroom and “put his finger inside of her vagina ....”
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
The judgment is affirmed.