People v. Temich

Siggins

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(City and County of San Francisco Super. Ct. No. 213031)

Fermin Temich appeals from a judgment and sentence following his guilty plea. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396; 18 L.Ed.2d 493] to determine whether there are any arguable issues on appeal. We find no such issues and affirm.

BACKGROUND

The following facts are taken from the probation report. On December 16, 2008, defendant was babysitting the victim and her younger brother and sister. Defendant physically accosted the victim in the bathroom. He pushed her against a wall and began to touch her in a sexual manner. He then removed their clothing and had sexual intercourse with the victim for approximately ten minutes. The victim's brother found her crying on the bathroom floor. Defendant left after the brother started pushing him and told him to get out.

The victim called her parents, who returned home and called the police. When the police arrived the victim told them about an incident two weeks earlier in which defendant touched her beneath her clothing and touched her "front privates." According to the victim, defendant also used a knife to force her to kiss him. Defendant told her they would both be in trouble if she told her mother.

Pursuant to a negotiated disposition, defendant pleaded guilty to two counts of committing a lewd act on a child younger than fourteen by means of force or fear of injury. Six remaining counts were dismissed. Defendant was advised of the rights he would waive by entry of his plea and of its potential consequences. The parties stipulated to an adequate factual basis for the plea.

On the date initially set for sentencing, defendant indicated he wished to withdraw his plea because he felt he had not been effectively represented. The court appointed conflicts counsel to ascertain whether sufficient grounds existed to file a motion to withdraw the guilty plea. Counsel investigated defendant's claim and informed the court that no such grounds existed. On the second court date for sentencing, defendant told the court that his attorney never advised him of the "strikes" consequences of his plea. He asked that his attorney be removed and that he be allowed to defend himself against the charges. However, the transcript of the plea hearing shows that defendant discussed the "strike" consequences of his plea with his counsel off the record, and the court verified with defendant that he understood them. The court refused to remove counsel and denied defendant's request to withdraw his plea.

Defendant was sentenced to 16 years in state prison with 540 days of credit. He was ordered to pay various fines and fees, submit to AIDS testing, and register as a sex offender.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant's counsel has represented that he advised defendant of his intention to file a Wende brief in this case and of defendant's right to submit supplemental written argument on his own behalf. Defendant has not done so. Defendant has also been advised of his right to request that counsel be relieved. This court has reviewed the entire record on appeal. No issue requires further briefing.

DISPOSITION

The judgment is affirmed.

Siggins, J. We concur: Pollak, Acting P.J. Jenkins, J.