Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07903058, W. Kent Hamlin, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Hill, J.
STATEMENT OF THE CASE
On April 18, 2007, the Fresno County District Attorney filed a felony complaint in superior court charging appellant as follows: counts I, II, VI, and VIII—lewd act upon a child (Pen. Code, § 288, subd. (a)), and counts III, IV, V, and VII—oral copulation of a person under 14 (§ 288a, subd. (c)(1)). As to counts I, II, VI, VII, and VIII, the district attorney specially alleged the offenses entailed multiple victims (§ 667.61, subd. (e)(5)).
On April 25, 2007, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On August 7, 2007, the court suspended criminal proceedings and appointed two physicians to determine appellant’s competence to stand trial (Pen. Code, § 1368).
On September 12, 2007, the court evaluated the reports of the physicians and determined appellant was competent to stand trial.
On October 5, 2007, appellant orally requested a substitution of counsel. The court conducted an in camera hearing under People v. Marsden (1970) 2 Cal.3d 118 and denied the motion.
On October 19, 2007, the court struck the special allegation on motion of the prosecution, appellant withdrew his not guilty pleas, and appellant then entered a plea of nolo contendere as to counts I-VIII. On the same date, appellant executed a felony advisement, waiver of rights, and plea form stipulating to a term of 22 years in state prison.
On January 4, 2008, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 22 years in state prison. The court imposed the upper term of eight years on count I and consecutive terms of eight months (one-third of the two-year middle term) on counts II-VIII. The court imposed a $4,400 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 541 days of custody credits.
On January 17, 2008, appellant filed a timely notice of appeal alleging ineffective assistance of counsel.
On May 30, 2008, this court denied appellant’s May 6, 2008 motion for new appointed counsel on appeal.
STATEMENT OF FACTS
The following facts are taken from the probation report filed January 4, 2008:
“On May 12, 2006, Sanger Police Department officers talked to Victim S.C., who related the following:
“The victim stated that it began in 2003 when he went to the defendant’s workplace … to talk about signing up for Little League. The victim was 12 years old at the time and the defendant asked him to go into the kitchen and told him he needed to ‘see how big he was’ to determine how big of a ‘cup’ he needed for baseball. The victim stated that when he pulled down his pants, the defendant ‘grabbed’ him (referring to his penis) with his right hand. The victim said he was in shock and did not know what to say.
“The victim related that about a week later, the defendant came to his house and picked him up and was going to take him to get a ‘cup’ and they went to the defendant’s house instead. He said when they got to the defendant’s house, the defendant told him to pull down his pants and the defendant grabbed the victim’s ‘balls.’ The defendant then asked the victim if he wanted to look on the computer and the defendant pulled up ‘kiddy porn.’ The victim said that he saw little girls and one picture had three little girls naked, holding each other. He stated that he knew that was wrong and he left and walked home. The victim said that [in May 2006], he was really depressed and couldn’t get it out of his mind what had happened to him three years ago, so he told a friend and then ended up telling his mother. The victim stated his mother then called the Sheriff’s Department, who told him to go to the Sanger Police Department. (Count One and Count Two: PC 288(a).)
“On September 21, 2006, Victim S.M. was interviewed at the Sanger Police Department. The officer told the victim that he knew that the victim was related to the defendant. When asked if the defendant had ever assaulted him, the victim replied, ‘Yes.’ The victim said that a few years ago, he had told his fiancé and she talked to him about doing something, but he could not bring himself to come forward.
“The victim said that he was about 13 years of age when it first happened in December of 1998, and continued on through February of 1999. The victim said that it first happened when he was selling Christmas trees and that all he remembers was that he and the defendant were inside the building like a storage area where the trees were. He said the defendant pushed himself upon him. The defendant told the victim that it was going to be all right and that it was no big deal. The victim said that the defendant was a lot stronger than him and that one thing led to another and eventually, the victim had his pants down to his legs. The defendant then started to play with the victim and proceeded to orally copulate the victim. The victim said he tried to stop the defendant and when someone drove up, the defendant stopped. The victim said he tried to stop the defendant and knew it was not right. The victim went on to say that the defendant told him it was something that he was going to have to learn eventually and he, the defendant, would rather him learn it by someone who knew what they were doing. He reiterated that the defendant told him, the victim, that it was okay and that it wasn’t a big deal. (Count Three: PC 288a(c)(1).)
“The victim said the next time he remembers, the defendant took him in the defendant’s vehicle and they went out to a field. The victim said that pretty much the same thing happened, in which the defendant again orally copulated the victim. (Count Four: PC 288a(c)(1).)
“The victim remembered another time that he was at the defendant’s house while the defendant’s children were playing outside. The victim said it occurred in the living room and the defendant fondled him and then committed oral copulation on him. (Count Five: PC 288a(c)(1).)
“The victim went on to tell officers that it happened more than the victim could count on one hand. He said it was at least six or more times and the incidents occurred wherever. He said they also occurred in [the defendant’s] vehicle. The victim said that he always felt uncomfortable being around the defendant and he was kind of forced to be around the defendant, because he would be sent over to the defendant’s house to baby sit or the defendant’s children would come over to his house for him to baby sit.
“... The victim went on to say that the defendant was his coach for baseball and the defendant would pick him up and take him home from practice. The defendant would say to the victim and tell him not to tell anyone what was going on. The victim went on to say that the defendant told him that the defendant’s cousin had done the same thing to him and that the defendant had learned from that experience and he thought it would be a good experience for him, the victim, to learn. The victim went on to say that the defendant was very big and strong and that he, the victim, was a little kid. He said that the defendant had used more force on him.
“Counts One and Count Two are related to Victim S.C. Counts Three through Count Eight are related to Victim S.M.”
DISCUSSION
Appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of April 28, 2008, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so. Our independent review discloses no reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
DISPOSITION
The judgment is affirmed.