Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC780754
ELIA, J.Pursuant to a negotiated disposition, appellant Miguel Rosas pleaded no contest to two counts of aggravated sexual assault on a minor and one count of forcible lewd conduct with a minor and the trial court sentenced him to a state prison term of six years plus 30 years to life. Rosas appeals from the judgment. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 . Counsel has not referred this court to any possible, but not arguable, issues. (Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396].) We advised appellant that he could submit any argument that he wanted us to consider and counsel has provided this court with an English translation of appellant's response which was written in Spanish. We affirm.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
In November 2007, Santa Clara County Sheriff's deputies went to a church in San Jose to meet with a woman and a church counselor. The woman, Jane Doe's mother, told the deputies that appellant, Jane's father, had "sexually abused Jane Doe on multiple occasions." The woman also believed that appellant had administered "Spanish fly" to Jane "for the purpose of inebriating her."
A deputy contacted 13-year-old Jane at her school. Jane told the deputy that in January 2007 appellant forced her to have sexual intercourse with him in her room while he was wearing a condom. He then promised not to do it again and said that if she told anyone what had happened her mother would get sick and die and her brother would be placed in foster care. Jane said that in the spring of 2007, when she was home sick from school, appellant offered her a "smoothie" which caused her to fall into a deep sleep. Again, he had sexual intercourse with her after which he apologized and issued the same statement about what would happen if she told anyone. A similar incident occurred in June 2007. On another occasion, appellant would not permit Jane to attend a school dance unless she had sexual intercourse with him. Jane told the deputy that appellant made two more attempts to molest her but that she had "rejected [his] advances."
Investigators arranged a pretext telephone call between appellant and Jane during which she told him that she was pregnant. Appellant requested "that she not report this fact to anyone, as he would go to jail." When investigators contacted appellant, he initially denied having sexual contact with Jane, but then "recanted and admitted to having sexual intercourse with Jane Doe on three separate occasions." He attributed his conduct to methamphetamine use and said that he had used the "Spanish fly" for his erectile dysfunction.
Appellant was arrested and charged with three counts of aggravated sexual assault on a minor, with probation ineligibility allegations attached to each count. (Pen. Code, §§ 269, 1203.065, subd. (a).) The Public Defender's Office was appointed to represent appellant. In January 2008, Public Defender Enrique Colin began making court appearances with appellant.
On March 5, 2008, the prosecutor moved to amend the complaint to add one count of forcible child molest. (Pen. Code, § 288, subd. (b).) Appellant waived his right to a preliminary examination and pleaded no contest to two counts of aggravated sexual assault on a minor and one count of forcible child molest with the understanding that the remaining count of aggravated sexual assault would be dismissed and appellant would be sentenced to a state prison term of six years plus 30 years to life.
On May 9, 2008, appellant appeared with Colin. Colin told the court that appellant was requesting "to have a [People v.] Marsden [(1970) 2 Cal.3d 118, hearing], and also to move to withdraw his plea." The court proceeded with the Marsden hearing and appellant said, "what happened is that I got two attorneys, and ever since they been telling me to plead guilty, plead guilty." Appellant said that he was advised to waive his preliminary hearing because "it would be more charges and things like that." He said "I'm not being represented very well, and I am not guilty of what I'm being accused of."
Colin told the court what he had done on the case since he began representing appellant. He said that after reading the police report he advised appellant that if the case went to preliminary examination that "three more counts of 269 and seven counts of 288" could be added. Colin reviewed Jane's taped statement to the police. Colin said that after discussing the evidence and appellant's options with him, appellant had "wanted to take a deal in the case." Colin talked to the prosecutor about a possible disposition and received an offer. Colin advised appellant of the offer and his rights and the consequences of the plea and appellant agreed to plead no contest. Colin said that he appeared with appellant on March 5 for the plea.
The reporter's transcript reflects that appellant appeared for plea with Kenny Liu of the Public Defender's Office. The clerk's transcript states that Colin appeared with appellant.
Appellant told the court that he believed that Jane should have had a medical exam "to see if she is still a virgin." Colin said that he and appellant had discussed what "penetration" means in sexual assault cases. Appellant told the court, "I don't care about losing the trial, I just want to show to my daughter and my wife that I never did that, and I don't care if by going to trial to prove that I didn't do that even if I lose."
The trial court denied appellant's Marsden motion. The court also denied appellant's motion to withdraw his plea "since it was based on what occurred in the Marsden." The trial court sentenced appellant to the midterm of six years for the forcible child molest count plus two consecutive terms of 15-years-to-life for the counts of aggravated sexual assault on a minor. When the court finished the sentencing, appellant asked "So, there's not going to be a trial?"
Appellant filed a notice of appeal. He also applied for a certificate of probable cause alleging that he was "bullied" into entering his plea which would be a "grave deficiency" in the plea procedure and thus "the court likely should have permitted him to withdraw his plea." This application was denied.
Discussion
Appellate counsel has not identified any possible or arguable issues for appeal. In his translated supplemental argument, appellant explains that he was under the influence of a very strong solvent when he was interrogated by the police and did not understand what was happening. He states that when he told the lawyer who represented him at the beginning of his case that he was innocent and did not understand the charges against him, "she told me to shut up that I had no right to speak [and] that I had already plead guilty that I couldn't do . . . anymore." He said that when Colin took over his case, appellant told Colin that he was not guilty of the charges and that he did not recall speaking to the detectives. Appellant states that he discussed the case with Colin, the absence of an independent medical exam for the victim, and the possibility of more charges should the case proceed to preliminary examination. Appellant explains that he pleaded no contest because "it was either accept the offer and that I had chances to get out of prison some day as opposed to going to trial I would lose and I would never be able to get out of prison." Appellant denies raping the victim or "touch[ing] her intimate areas." He says that his wife knows that he did not rape their daughter but that she has been intimidated into believing she will lose their daughter.
Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335 [83 S.Ct. 792].) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [104 S.Ct. 2052].) The record before us is insufficient to support appellant's claims. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, and the issues raised by Rosas, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Rosas in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.