P. v. Miranda-Retana CA1/5

Filed 7/22/13 P. v. Miranda-Retana CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A137202 v. VICTORINO MIRANDA-RETANA, (Sonoma County Super. Ct. No. SCR-611499) Defendant and Appellant.

By plea of no contest, appellant Victorino Miranda-Retana was convicted of assault with intent to commit oral copulation on a minor (Pen. Code, § 220, subd. (a)(2))1 and of a misdemeanor charge of annoying or molesting a second minor (§ 647.6, subd. (a)(1)). A condition of his plea was that he would receive a maximum determinate term of seven years in state prison. The court ultimately sentenced him to the maximum agreed upon sentence of the midterm of seven years for the felony count and a concurrent one-year sentence on the misdemeanor charge. Assigned counsel has submitted a Wende2 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Miranda-Retana has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court‟s

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 People v. Wende (1979) 25 Cal.3d 436.

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attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no error and affirm. I. BACKGROUND3 John Doe I Fifteen-year-old John Doe I was interviewed by Santa Rosa police on December 21, 2011, at 8:30 p.m. at Kaiser Hospital. Doe I said that earlier that day, while waiting for a bus at the downtown Santa Rosa transit mall between A Street and Santa Rosa Avenue, he saw Miranda-Retana, dressed as a woman, exit a bus and then disappear. A short time later, Doe I saw Miranda-Retana standing near a construction area. Doe I said Miranda-Retana motioned toward him, directing him to walk towards Miranda-Retana. Once close to Miranda-Retana, Doe I was immediately grabbed by the arm and forcibly pushed against a chain link fence, with his face hitting the fence. Doe I could see Miranda-Retana‟s pants down around his ankles. Miranda-Retana grabbed Doe I‟s arms, pinning them to his side. Miranda-Retana pulled Doe I‟s pants down to his knees and grabbed him by his hips, pushing Doe I‟s penis into Miranda-Retana‟s groin area as he began making thrusting movements. Doe I attempted to free himself, but was unable to do so. Doe I was uncertain if he actually penetrated Miranda-Retana. Doe I said that Miranda-Retana also orally copulated him and the incident lasted several seconds. When Doe I attempted to leave, Miranda-Retana grabbed his sweater and Doe I struck Miranda- Retana in the face, causing him to stumble back. Doe I pulled up his pants, grabbed his backpack and fled.