P. v. Gallardo CA3

Filed 8/1/13 P. v. Gallardo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C072817

Plaintiff and Respondent, (Super. Ct. No. MF033842A)

v.

RICHARD ANTHONY GALLARDO,

Defendant and Appellant.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Between September 2008 and December 2010, defendant Richard Anthony Gallardo molested the female victim born in September 2003, by rubbing her breasts (count 2), by forcibly rubbing her breasts on two other occasions (counts 3 & 6), and by forcing her to orally copulate him on another occasion (count 7). Defendant entered a plea of guilty to lewd act upon a child (Pen. Code, § 288, subd. (a); count 2) and three counts of forcible lewd act upon a child (Pen. Code, § 288, former subd. (b); Stats. 2004, ch. 823, § 7, pp. 6294-6295; counts 3, 6, & 7) in exchange for a stipulated sentence of 27 years in state prison (low term of three years on count 2

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and a consecutive upper term of eight years on counts 3, 6, & 7, each) and the dismissal of the remaining counts. The court sentenced defendant accordingly. The court awarded 394 actual days and 59 conduct days for a total of 453 days of presentence custody credit. Defendant appeals. The trial court granted defendant’s request for a certificate of probable cause (Pen. Code, § 1237.5). We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief. He contends his confession was coerced, requesting that this court review tapes of his confession. He also requests a lesser sentence and notes that the trial court did not provide a statement of reasons for the lower and upper terms. “ ‘[T]he fact that defendant obtained . . . a certificate of probable cause does not erase [a] waiver and somehow resuscitate a dead issue. . . . Consequently, “[obtaining] a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.” ’ ” (People v. Turner (1985) 171 Cal.App.3d 116, 125 (Turner).) “[A] guilty [or no contest] plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. [Citation.] It waives a trial and obviates the need for the prosecution to come forward with any evidence. [Citations.] A guilty plea thus concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations. . . . [¶] A guilty plea also