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People v. Spinner

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
E054045 (Cal. Ct. App. Jan. 26, 2012)

Opinion

E054045

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. JESSE J. SPINNER, JR., Defendant and Appellant.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF10002011)


OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Jesse J. Spinner, Jr., appeals from a guilty plea to one count of forcible rape against Jane Doe 2 (Pen. Code, § 261, subd. (a)(2), count 1); one count of aggravated assault of Jane Doe 1 (§ 245, subd. (a)(1), count 10); and one count of false imprisonment of Jane Doe 3 (§ 236, count 11). We find no error and will affirm the judgment.

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

I


FACTUAL AND PROCEDURAL BACKGROUND

The factual background is taken from the preliminary hearing transcript and/or police reports.

Jane Doe 3 and defendant met in January 2004, and were in a relationship for about 18 months. During that time period, they had a child together, and would have consensual sex. However, about five to 10 times, between March 2004 and October 2005, defendant assaulted and forcibly raped and sodomized Jane Doe 3.

On October 13, 2006, defendant picked up Jane Doe 2 from her residence in Los Angeles. Upon defendant's request, Jane Doe 2 agreed to spend the night at defendant's house. Defendant requested that Jane Doe 2 stay in his bedroom to watch television together and talk for a while before she slept in the guest bedroom. Jane Doe 2 agreed, and lay on the bed next to defendant. Defendant thereafter repeatedly raped, assaulted, and sodomized Jane Doe 2. He also repeatedly forced her to orally copulate him, and prevented her from leaving his residence. Jane Doe 2 eventually text messaged her friend that she had been raped. When police arrived at defendant's residence, on October 14, 2006, Jane Doe 2 opened the front door and ran out of the residence completely naked.

Defendant attacked Jane Doe 1 on May 28, 2009. In that instance, defendant raped and prevented Jane Doe 1 from leaving his residence. He also attempted to have Jane Doe 1 orally copulate him.

Following a preliminary hearing on February 16, 2011, defendant was charged with four counts of forcible rape (§ 261, subd. (a)(2), counts 1, 5, 7, 9); one count of attempted forcible sodomy (§§ 664, 286, subd. (c)(2), count 2); one count of false imprisonment (§ 236, count 3); one count of forcible oral copulation (§ 288a, subd. (c)(2), count 4); and two counts of forcible sodomy (§ 286, subd. (c)(2), counts 6, 8). The information also alleged that defendant had been convicted of committing forcible rape against more than one victim. (§ 667.61, subd. (e)(5).)

On June 6, 2011, the information was orally amended to add counts 10 and 11, charging defendant with aggravated assault on Jane Doe 1 (§ 245, subd. (a)(1)) and false imprisonment of Jane Doe 3 (§ 236), respectively, and to allege that the victim in count 1 was Jane Doe 2 rather than Jane Doe 1. Pursuant to a negotiated written plea agreement, defendant then pled guilty to counts 1, 10, and 11; in return, defendant was promised a stipulated term of four years in state prison. The trial court accepted the police reports as a factual basis for the plea.

Immediately thereafter, the court followed the plea agreement by sentencing defendant to the agreed term of four years in state prison with credit of 440 days for time served. To reach the total term, the trial court imposed the low term of three years on count 1, a consecutive term of one year or one-third the midterm of three years on count 10, and a concurrent term of two years on count 11. All other counts and allegations were dismissed and stricken pursuant to the plea agreement.

On July 13, 2011, defendant filed a notice of appeal "based on the sentence or other matters occurring after the plea."

On July 27, 2011, defendant filed a notice of appeal, challenging the validity of the plea. He also requested a certificate of probable cause under section 1237.5. That request was denied on July 28, 2011.

II


DISCUSSION

We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court undertake an independent review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief. On January 4, 2012, defendant filed a supplemental brief with supporting exhibits.Defendant's supplemental brief generally contains the following claims and allegations: (1) the victims were incredible; (2) his retained counsel was ineffective for failing to investigate the case to uncover exculpatory evidence and file a section 995 motion; (3) he was unaware of his constitutional rights and did not have an opportunity to review the amended charges; (4) the trial court allowed excessive continuances and failed to reduce his $1 million bail; and (5) he was coerced into pleading guilty. Defendant does not support his contentions with any argument or citations. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

With the exception of the preliminary hearing transcript, the police reports, and the sentencing hearing transcript, the rest of the six exhibits were not part of the trial court record.

"When a defendant pleads not guilty and is convicted as the result of a trial, in general any issue bearing on the determination of guilt and apparent from the record is cognizable on appeal. (See § 1237.) By contrast, when a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the 'jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.' [Citations.]" (In re Chavez (2003) 30 Cal.4th 643, 649.) In addition, "section 1237.5 authorizes an appeal [following a guilty plea] only as to a particular category of issues," and to have these issues considered on appeal, a defendant must first take the additional procedural step of obtaining a certificate of probable cause. (Id. at p. 650.)

All of the issues raised in defendant's notice of appeal and supplemental brief concern the determination of guilt or innocence or are not reviewable under section 1237.5. As set forth above, defendant requested a certificate of probable cause to appeal, but his request was denied by the trial court. Our review of the record indicates there was no basis for such a certificate. In the absence of a certificate of probable cause, we may not consider the validity of the plea; whether the change of plea was knowingly, intelligently, or voluntarily made; or whether defendant was deprived of effective assistance of counsel. (§ 1237.5; see also People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)

We note defendant had challenged the denial of the certificate of probable cause by way of writ of mandate; however, this court denied his writ petition. (See case No. E054872.)
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We have now concluded our independent review of the record and find no arguable issues.

III


DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.
We concur:
MILLER

J.
CODRINGTON

J.


Summaries of

People v. Spinner

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
E054045 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Spinner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESSE J. SPINNER, JR., Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 26, 2012

Citations

E054045 (Cal. Ct. App. Jan. 26, 2012)