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People v. Rodriguez

California Court of Appeals, Fourth District, First Division
Jul 18, 2008
No. D052437 (Cal. Ct. App. Jul. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. PEDRO C. RODRIGUEZ, Defendant and Appellant. D052437 California Court of Appeal, Fourth District, First Division July 18, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD208688, Roger W. Krauel, Judge.

IRION, J.

Pedro C. Rodriguez pleaded guilty to three counts of committing forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)) (counts 9, 11 and 17) and one count of committing a lewd act upon a child (§ 288, subd. (a)) (count 22). In return for the plea, the district attorney agreed to dismiss four other counts alleging forcible lewd acts against a child, six counts of lewd acts upon a child, two counts of forcible oral copulation, two counts of oral copulation upon a minor, and six counts of rape by foreign object. The parties agreed that as a result of the plea, Rodriguez would be sentenced to between nine and 26 years in state prison. At a later sentencing hearing, the trial court sentenced Rodriguez to 24 years in prison, consisting of the middle term of six years on each of the four offenses. Rodriguez did not obtain a certificate of probable cause. (See § 1237.5 [requiring certificate of probable cause for appeal of a guilty plea].)

All statutory references are to the Penal Code unless otherwise indicated.

FACTS

On two separate occasions on February 1, 2002, Rodriguez molested his granddaughter when she was under the age of 14, using force to fondle her breasts. On March 1, 2002, Rodriguez again molested her using force to fondle her breasts while she was under the age of 14. On May 5, 2005, Rodriguez molested another granddaughter through digital penetration, while she was under the age of 14.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether Rodriguez was advised of his constitutional rights, the consequences of pleading guilty, and whether he voluntarily waived those rights; (2) whether there was a sufficient factual basis for the plea; and (3) whether the trial court erred in failing to set forth reasons for imposing the middle term for counts 9, 11 and 17 in compliance with the California Rules of Court. Counsel also notes related questions with respect to whether the referenced contentions would be cognizable in this appeal due to Rodriguez's failure to obtain a certificate of probable cause (see § 1237.5) and his counsel's failure to object in the proceedings below (see People v. Scott (1994) 9 Cal.4th 331, 353).

The trial court specifically set forth reasons for imposing the middle term on count 22 and, then, immediately pronounced the middle term appropriate for counts 9, 11 and 17.

Section 1237.5 reads: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . ., except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."

We granted Rodriguez permission to file a brief on his own behalf. Rodriguez responded by submitting a letter in Spanish. The court forwarded the letter to counsel and requested that an official translation be made and the translated letter provided to the court. Counsel complied. The letter does not contain any legal arguments, but seeks "clemency" and suggests that the participants in the proceedings below "committed fraud." We are not authorized, of course, to grant clemency, and conclusory allegations of fraud and the like cannot form the basis for relief on appeal.

Rodriguez's letter also suggests that his counsel assured him he would receive nine years in prison if he pleaded guilty. The appellate record provides no support for this claim, however. Rodriguez initialed and signed a standard plea form recognizing the constitutional rights he was waiving by pleading guilty, and the fact that the plea would result in a sentence of between nine and 24 years. Rodriguez also acknowledged these facts in a plea colloquy with the trial court. To the extent that Rodriguez is claiming that he is entitled to relief from his plea based on information that is not contained in the appellate record, that claim must be made, if at all, by writ of habeas corpus. (People v. Seaton (2001) 26 Cal.4th 598, 696 [claim of ineffective assistance of counsel must generally be made by way of writ of habeas corpus].)

In addition to rejecting the claims made in Rodriguez's letter, we have also conducted a review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel. Our review has disclosed no reasonably arguable appellate issues. Competent counsel has represented Rodriguez on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., AARON, J.


Summaries of

People v. Rodriguez

California Court of Appeals, Fourth District, First Division
Jul 18, 2008
No. D052437 (Cal. Ct. App. Jul. 18, 2008)
Case details for

People v. Rodriguez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PEDRO C. RODRIGUEZ, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 18, 2008

Citations

No. D052437 (Cal. Ct. App. Jul. 18, 2008)