Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS092468.
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant pleaded no contest to forcible sodomy (Pen. Code, § 286, subd. (c)(2)) and assault with intent to commit rape and/or sodomy (§ 220, subd. (a).) Jane Doe was named as the victim of both offenses. The trial court imposed a total term of ten years in the state prison.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant timely submitted a letter that we have considered.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, 40 Cal.4th at page 110, 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.”
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our summary of the facts is taken from the probation report filed on July 27, 2010.
Jane Doe, age 19, attended a Halloween party in the early morning hours of November 1, 2009, with her sister and brother-in-law. When they told Jane that they were leaving the party, she refused to go because she was having fun. Since Jane was highly intoxicated, her brother-in-law forced her to leave by carrying her to his vehicle. Jane managed to escape his hold and run away. Her plan was to run around the block and return to the party.
During her attempt to return to the party, Jane climbed over fences. As she was going over a wooden fence, Jane felt defendant touch her from behind. She told him to go away, and he did. Minutes later, Jane encountered defendant again. He threw Jane to the ground and hit her when she fought back. After a pause in which Jane attempted to dissuade defendant from further hurting her, defendant grabbed her, pulled her pants down, and penetrated her anus with his penis. After defendant left, Jane returned to the party and contacted the doorman.
B. Procedural Background
The complaint filed on November 3, 2009, charged defendant with two felony offenses, forcible sodomy (§ 286, subd. (c)(2); count 1) and assault with attempt to commit rape and/or sodomy (§ 220, subd. (a); count 2). The complaint further alleged that each count was a serious felony within the meaning of section 1192.7, subdivision (c)(10). On April 13, 2010, defendant waived the preliminary examination and was held to answer on both counts. The information filed on April 15, 2010, included the same counts and special allegations as the complaint.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant entered into a plea agreement on June 15, 2010. In exchange for a sentence of a minimum of three years to a maximum of ten years, defendant pleaded no contest to both counts charged in the information. At the time defendant entered into the plea agreement, the trial court advised defendant that “[t]he maximum penalty for these offenses is up to 14 years in state prison, followed by a minimum of five years on parole.”
During the sentencing hearing held on September 14, 2010, the trial court imposed a total term of 10 years, consisting of the middle term of six years on count 1 (forcible sodomy; § 286, subd. (c)(2)) and the middle term of four years, consecutive, on count 2 (assault with attempt to commit rape and/or sodomy; § 220, subd. (a)).
The trial court also ordered defendant to pay various fines and fees, including a $200 restitution fine (§ 1202.4, subd. (b)); a $200 parole revocation restitution fine, suspended (§ 1202.45); a court security fee of $60 (§ 1465.8, subd. (a)(1)); and a criminal conviction assessment of $60 (Gov. Code, § 70373). Defendant was also ordered to register as a sex offender. (§ 290.)
After reciting the sentence and finding that defendant had a total of 365 days of credit for time served, the court stated, “This would be followed by a minimum 15 years parole.” The minute order of September 14, 2010, states that the 10-year sentence is “[f]ollowed by a minimum of 15 years on parole.” Additionally, the minute order of June 15, 2010, as amended by order of the court on September 17, 2010, states, “The maximum penalty for this offense is 14 year(s) 0 month(s) state prison and 15 year(s) 0 month(s) parole.”
Defendant filed a notice of appeal on September 17, 2010, indicating that the appeal was based on the sentence or other matters occurring after the plea.
III. DISCUSSION
After reviewing the entire record on appeal, we asked the parties to submit supplemental briefing on the issue of whether the trial court was authorized to impose a parole period of 15 years, as indicated in two minute orders and the reporter’s transcript for the sentencing hearing. In their supplemental briefing, both parties contend that the trial court is not authorized either to impose a parole term or to prescribe its duration. We agree. “ ‘[T]he court is authorized neither to determine whether a parole period shall be served nor to prescribe its duration; that is the province of the Board of Prison Terms.’ [Citation.]” (Berman v. Cate (2010) 187 Cal.App.4th 885, 894, quoting People v. McMillion (1992) 2 Cal.App.4th 1363, 1369; § 3000.) However, as the People note, there is no prejudice to defendant in this case since the abstract of judgment does not reflect the imposition of a parole term or prescribe its duration.
As of July 1, 2005, the Board of Prison Terms was abolished, the Board of Parole Hearings was created, and any reference to the former in the California codes was deemed a reference to the latter. (§ 5075, subd. (a).)
This court also received a handwritten letter from defendant on March 29, 2011. Defendant asserts that defense counsel did not properly represent him, since defendant believed that he would be sentenced to a six-year term with one strike conviction, and asks that his sentence be reduced.
Having carefully reviewed the entire record, defendant’s letter, and the parties’ supplemental briefing, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.