Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F06904083-3. David Gottlieb, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Dawson, J.
INTRODUCTION
Appellant, Mark Mosier, was charged in a criminal complaint filed June 13, 2006, with continuous sexual abuse (Pen. Code, § 288.5). There was a further special allegation that the victim was under age 14 and suffered substantial sexual conduct, disqualifying Mosier for probation under section 1203.066, subdivision (a)(8).
All further statutory references are to the Penal Code.
On August 1, 2006, Mosier entered into a plea agreement whereby he would admit committing continuous sexual abuse and the special allegation. The trial court advised Mosier that when it states an indicated sentence, it means that is the sentence the court will impose if everything is the way it has been presented to the court at the change of plea hearing. The court told Mosier that his trial counsel could argue for a sentence other than what the court indicated, but the court does not lightly change its indicated sentence.
Mosier executed a felony advisement, waiver of rights form prior to changing his plea.
The court advised Mosier that it did not want him to enter into the plea under any misconception. Mosier replied he understood. When asked if he executed the felony advisement, waiver of rights, and plea form and if he wished to plead guilty to section 288.5, Mosier replied affirmatively and acknowledged that his signature and initials appeared on the form. Mosier stated he had enough time to discuss the case with his attorney and that counsel advised him of his constitutional rights. The court advised Mosier of his statutory and his constitutional rights. The court proceeded to advise Mosier of each of his constitutional rights pursuant to Boykin/Tahl. Mosier waived each constitutional right, first indicating that he understood it.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The trial court asked Mosier if he understood the requirements of section 290. The prosecutor noted that under the section 1203.066, subdivision (a)(8) allegation, Mosier would not be eligible for probation. The court explained to Mosier that the special allegation he was about to admit would make him ineligible for probation. The court explained that unless it struck the allegation or found it did not apply to Mosier, the allegation mandates that Mosier would go to prison. Mosier replied he understood this. When asked if that would change any answer he previously gave, Mosier replied, “No.”
Mosier indicated he understood the nature and consequences of the allegations against him. The parties stipulated there was a factual basis for the plea from the police reports. Mosier pled guilty to violating section 288.5 and admitted the violation of section 1203.066, subdivision (a)(8). On August 29, 2006, the prosecutor argued that probation was inappropriate in this case. The court continued sentencing so the parties could research whether it had discretion under subdivision (d)(1) of section 1203.066 to grant probation. On September 26, 2006, the court ordered a psychological evaluation and report pursuant to section 288.1.
According to the probation report, which is based on the police report, Mosier began sexually molesting the victim, a close relative, between 2001 and 2003 when the victim was between 11 and 13 years old. The sexual molestations were on-going and by Mosier’s admission happened 10 or 12 times. The victim masturbated Mosier, and he admitted having oral sex with the victim on one occasion. The victim reported being molested by Mosier from fifth grade until the victim turned 14. The victim said there were about 20 sexual molestations. The victim reported that Mosier used the victim’s hand to masturbate himself and orally copulated the victim five or six times, not just once.
The psychologist who evaluated Mosier recommended that Mosier be granted probation. On October 24, 2006, criminal proceedings were suspended and Mosier was referred to the Department of Corrections (CDC) for an evaluation and report pursuant to section 1203.03. On January 16, 2007, the diagnostic report prepared by CDC concluded Mosier was not a good candidate for probation and that he be sentenced to prison.
At the sentencing hearing on February 5, 2007, the court noted it had read the section 1203.03 diagnostic evaluation, the psychologist’s evaluation, and the probation officer’s report. Defense counsel stated her understanding that the plea agreement was for the mitigated term as a lid. She noted there had been discussion in chambers concerning Mosier’s eligibility for probation. The parties and the court had determined Mosier was eligible for probation. Defense counsel argued Mosier was a good candidate for probation and probation would be in the best interest of the family.
Section 1203.066, subdivision (d)(1) permits a court to consider probation for a defendant who is a member of the victim’s household where the court finds probation is in the best interest of the child victim, rehabilitation of the defendant is feasible and the defendant is amenable to treatment, the defendant who is a member of the victim’s family is removed from the victim’s household, and the court finds no threat of physical harm to the victim. (Generally see People v. Wutzke (2002) 28 Cal.4th 923, 932.) The victim was living with a grandparent at the time of sentencing.
The prosecutor argued this was a case where the defendant deserved to go to prison. The court noted it spent a lot of time examining the probation report, the psychologist’s report, and the section 1203.03 diagnostic evaluation. The court stated the offense occurred over a period of two years. The victim was very young and was continuously abused. The court explained the defendant abused a position of trust and denied probation. In mitigation, the court found Mosier admitted responsibility at an early stage of the proceeding and had no prior criminal history. Also, Mosier showed remorse for his behavior.
The court sentenced Mosier to the low term of six years in prison, imposed a restitution fine, and granted custody credits. The court ordered Mosier to register as a sex offender.
The court granted precustody credits of 241 days for being in local custody plus 36 days for conduct credits for total precustody credits of 277 days. Pursuant to a motion by appellate counsel, the trial court added one additional day of local custody credit, which is reflected in an amended abstract of judgment filed on July 3, 2007. Mosier’s total custody credits are now 278 days. Mosier was arrested on June 9, 2006, and sentenced on February 5, 2007. Our own calculation of actual days in custody is 242 days, including the day Mosier was sentenced. The amended abstract of judgment is accurate.
Mosier’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Mosier was advised he could file his own brief with this court. By letter on July 9, 2007, we invited Mosier to submit additional briefing. To date he has not done so.
DISCUSSION
We initially note that Mosier failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious or prejudicial errors in Mosier’s change of plea hearing. Mosier was fully advised of the consequences of his plea and his constitutional rights in the waiver of rights and change of plea form. He was further advised of and waived his constitutional rights by the trial court. The police report established a prima facie factual basis for the plea. Mosier received the sentence for which he bargained.
A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)
After independent review, we conclude that there is no arguable legal or factual issue.
DISPOSITION
The judgment is affirmed.