Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH-40820
Richman, J.
Counsel appointed for defendant James Miller has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.
Our examination reveals that in June of 2004, defendant, who was then 20 years old, was living at his aunt’s house in DubliN.M., who was 13 years old at the time, lived next door with her grandmother and sister. One day in late June, M. was hanging out on the porch at defendant’s aunt’s house when she was first introduced to defendant. Initially they talked outside but later went inside the house, eventually ending up sitting on a bed in a back room. Defendant began touching M.’s breasts and said, “Come on, let’s do something,” which M. understood to mean to have sex. M. responded that she could not do anything and had to go home, but defendant did not stop touching her, instead lying down on top of her and pulling down her underwear and pants. He then penetrated her vaginally. M. began to shake, and defendant finally stopped. M. then left the house, sobbing as she went home. She did not tell anyone that day what had happened, although a day or two later, she told a friend at school.
A few days later, M. saw defendant when she was at a park. He said to her, “If you’re going to be doing what you’re doing, you might as well get some money for it.” M. understood this to mean that if she was going to have sex, then she might as well be paid for it. Defendant told her that he could take her to a place where she could make a lot of money each night, and then said she should give him the money to save for her. She responded, “I’ll think about it,” although she did not really think about it. Defendant then gave her a ride home.
On the evening of July 3, 2004, M. was outside her house with a friend when defendant and his friends came over and proposed they all go to the playground at a nearby elementary school. M. and her friend agreed. While they were at the playground, M. left the group to use a porta-potty. Defendant followed her inside the porta-potty, locked the door behind them, and again sexually assaulted her. After they exited the porta-potty, M. immediately left the park with her friend, telling her on the way back to M.’s house what had happened.
Later that month, defendant met his next victim, L., at the same elementary school. L., who was then 11 years old, was walking through the school grounds one evening with three of her girlfriends when they ran into a group of boys, one of whom was defendant. The girls stopped to talk to them because one of L.’s friends was dating one of the boys. Defendant and L. engaged in a brief conversation, during which defendant told L. he was 16. He asked L. what she was going to do later that night, and she responded that she was spending the night at her friend’s house. After a few minutes, the girls left the school grounds and went to L.’s friend’s house.
Around 10:00 p.m. that evening, L.’s friend arranged to meet her boyfriend at the school, and L. accompanied her so she did not have to go alone. Defendant was one of the boys at the playground when they arrived. After few minutes, defendant approached L., put his arm behind her, began pushing her towards a play structure, and said, “Let’s go over here.” L. responded that she wanted to stay with her friend, but defendant persisted, propelling L. to the play structure, which was dark and obscured from the view of L.’s friend. Defendant then urged L. up the steps of a play structure. Once up on the platform, he raped her and then forced her to orally copulate him. Eventually freeing herself from defendant, L. ran back to her friend and the girls ran back to their friend’s house. Once there, L. told her friends what had happened, although she did not report the assault to an adult.
The following day, L. told M., who was a friend, about the incident, and M. acknowledged she had had sex with defendant as well.
Weeks later, when M. was out in front of her house, she saw defendant and confronted him about what he did to L. At his urging, they then went inside his aunt’s house and into the master bedroom. Over M.’s protests that she had to go home, defendant took off her pants and underwear, pushed her back onto the bed, and penetrated her, both vaginally and anally. After the incident, M. went home but did not tell anyone what happened.
On another night in July 2004, defendant’s third victim, 14-year-old V., was at her house with a friend when her friend’s boyfriend and his friends—including defendant—came over to V.’s house. V. and defendant ended up lying on her bed and engaging in consensual sexual activity that did not include intercourse. After an hour or two, the boys left.
The next morning, defendant returned. V. and defendant were again lying on her bed watching a movie and kissing when he asked her to take her pants off. V. did not want to, but at defendant’s insistence, she eventually did. Defendant then rolled on top of her, moved her underwear to the side, and began to penetrate her. She attempted to scoot away from him, only to have him put her legs over his shoulders and move closer towards her. She eventually backed up against a wall and was unable to move any further away from him. She told him to stop but he did not, and when she told him a second time to stop, he asked if she really wanted him to stop. She said yes, and he finally stopped.
Defendant was arrested on August 19, 2004. Between the date of his arrest and September 2, 2004, defendant made a series of telephone calls from Santa Rita jail to his mother and friends, urging them to go to the homes of M., L., and V. and talk to the girls so they would not press charges. He also urged them to tell potential witnesses to deny everything, explaining that if no witnesses testified, there would be no case against him and he would be set free.
By way of information filed May 11, 2006, the Alameda County District Attorney charged defendant with five counts of forcible rape in violation of Penal Code section 261, subdivision (a)(2) (counts one, two, three, seven, and eight), two counts of committing a lewd act upon a child in violation of section 288, subdivision (a) (counts four and nine), one count of sodomy by use of force in violation of section 286, subdivision (c)(2) (count five), one count of pandering by encouraging in violation of section 266i, subdivision (a)(2) (count six), one count of forcible oral copulation in violation of section 288a, subdivision (c)(2) (count 10), one count of kidnapping to commit another crime in violation of section 209, subdivision (b)(1) (count 11), and four counts of attempting to dissuade a witness in violation of section 136.1, subdivision (a)(2) (count 12 through 15).
All statutory references are to the Penal Code.
On March 23, 2007, count 9 was amended to allege a violation of section 288, subdivision (b)(1), committing a lewd act upon a child by means of force, violence, duress or fear. Pursuant to a negotiated plea agreement, defendant then pleaded no contest to counts four and nine, as amended. As conditions of the plea agreement, defendant stipulated to consecutive midterm sentences of six years on each count, for a total of 12 years in state prison. The terms of the plea agreement also required defendant to register as a sex offender pursuant to section 290 for the remainder of his life, to provide DNA samples pursuant to section 296, and to undergo AIDS testing pursuant to section 1202.1. The court then found defendant guilty on counts four and nine. The remaining counts were dismissed with restitution reserved.
On May 4, 2007, defendant was sentenced to 12 years in state prison.
This timely appeal followed.
The scope of reviewable issues on appeal after a guilty plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Defendant’s change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
Defendant was represented by competent counsel who guarded his rights and interests.
The sentence imposed is authorized by law.
Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.
We concur: Kline, P.J. Haerle, J.