Opinion
F074312
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDRES MORENO VIZCARRA, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF276087)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J., and Meehan, J.
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Appellant Andres Moreno Vizcarra pled no contest to lewd and lascivious conduct with a child under the age of 14 by force (Pen. Code, § 288, subd. (b)(1)/count 2), lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)/count 6) and the continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)/count 10). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2012, 16-year-old M.C. reported to a police officer that her ex-stepfather had molested her on three occasions when she was ten years old. On one occasion, when Vizcarra told her mother he was taking M.C. to look at a house that was for sale, Vizcarra instead took her to a rural area. Vizcarra then had M.C. pull his pants down and rub his penis for 10 to 15 minutes (count 2). On two other separate occasions, Vizcarra inserted his finger into M.C.'s vagina.
On August 8, 2012, 21-year-old J.G., Vizcarra's sister-in-law, told a police officer that Vizcarra had molested her on multiple occasions, but she was not able to speak with the officer that day. The officer subsequently contacted J.G. and she reported that once when she was 12 or 13 years old, she was wearing shorts and sitting on a couch when Vizcarra told her that when she bent her leg a certain way, the folds on her skin resembled a vagina. Vizcarra also rubbed her leg and kissed her during that incident.
On another occasion before J.G. was 14 years old, Vizcarra told J.G. to go to the bathroom. After she complied, Vizcarra walked in the bathroom and placed her hand on his exposed penis (count 6).
Once, when J.G. was 14 years old, she was sleeping on the floor of a bedroom when Vizcarra began rubbing her breasts and vaginal area. Eventually, he removed J.G.'s clothes and had intercourse with her. J.G. indicated there were other incidents when Vizcarra sexually molested her but she did not report them that day because she had to get to work.
On September 27, 2012, 17-year-old M.V., Vizcarra's second cousin, told a detective about two occasions that Vizcarra sexually assaulted her when she was nine. On one occasion, while she and Vizcarra were in a pool, Vizcarra pulled her on top of him and inserted his penis into her vagina. M.V. struggled with Vizcarra and was able to get away from him and out of the pool. On another occasion, M.V. and M.C. were lying on the floor when Vizcarra lay down between them. Vizcarra then slid his hand down the front of M.V.'s shorts, inserted his fingers in her vagina, and moved them around for approximately 20 minutes. After M.C. left the room, Vizcarra put on a pornographic movie and had M.V. orally copulate him.
When M.V. was 10 or 11 years old, while at Vizcarra's residence, he called her into his bedroom after he showered. Vizcarra then got on top of M.V. and began kissing her and rubbing her breasts over her clothing. Eventually, he undressed M.V. and had intercourse with her. Vizcarra also twice attempted unsuccessfully to sodomize M.V.
On another occasion, when M.V. was 10 years old, she was sleeping in a bedroom when Vizcarra removed her clothing and touched his penis to her vagina, but he was unable to penetrate her because she resisted (count 10).
The incidents involving M.V. were the basis for Vizcarra's conviction for the continuous sexual abuse of a child (§ 288.5, subd. (a)). --------
On June 11, 2014, the Tulare County District Attorney filed an information charging Vizcarra with 15 counts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)/counts 1-6 & 12-20), three counts of lewd and lascivious conduct with a child 14 to 15 years of age (§ 288, subd. (c)(1)/counts 7-9) and two counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)/counts 10-11). Most of the counts alleged that they involved substantial sexual contact with the victim (§ 1203.066, subd. (a)(8)) and an aggravating circumstance that Vizcarra's offenses involved multiple victims, which required that he be sentenced to prison for 15 years to life. (§ 667.61, subd. (b).)
On May 12, 2016, the district attorney amended count 2 to charge Vizcarra with lewd and lascivious conduct by force with a child under the age of 14 (§ 288, subd. (b)(1)) and count 10 to charge him with the continuous sexual abuse of a child 14 years of age or younger (§ 288.5, subd. (a)). Vizcarra then pled no contest to count 6 and counts 2 and 10 as amended, admitted one of the allegations of substantial sexual contact, and waived his appeal rights in exchange for the dismissal of the remaining counts and allegations and a stipulated prison term of 24 years. Pursuant to the agreement, the court would impose the aggravated term of 16 years on count 10 (§ 288.5, subd. (a)), a full, consecutive midterm of six years on count 2 (§ 288 subd. (b)(1)), and a consecutive two-year term on count 6, one-third the midterm of 6 years (§ 288, subd. (a)).
On July 25, 2016, the court sentenced Vizcarra to the stipulated 24-year term as follows: the middle term of six years on count 6, a full consecutive middle term of 12 years on count 10, and a full consecutive middle term of six years on count 2.
On August 29, 2016, Vizcarra filed a timely appeal but he did not obtain a certificate of probable cause from the court.
Vizcarra's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on June 6, 2017, Vizcarra contends the court erred when it sentenced him to a six-year term on count 6 because, pursuant to his plea bargain, he "accepted a sentence of two years" on that count. In essence, Vizcarra contends the court violated his plea bargain by imposing a greater term on count 6 than his plea provided for on that count. Assuming, without deciding, that this contention is properly before us, we reject it.
Vizcarra's plea bargain provided that he would receive a stipulated 24-year prison term, which included a two-year term on count 6. Although the court increased the term it imposed on count 2 by four years, it still imposed an aggregate term of 24 years by reducing the term it imposed on count 10 by four years. Since the court did not increase the punishment Vizcarra agreed to, the court did not violate his plea bargain by changing the manner in which it arrived at the stipulated 24-year term. (People v. Somnang Kim (2011) 193 Cal.App.4th 1355, 1359, citing People v. Brown (2007) 147 Cal.App.4th 1213, 1221 ["For a sentence to violate a plea bargain, it must impose a 'punishment more severe' than whatever the defendant agreed to."].)
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.