People v. Hughley CA5

Filed 10/31/13 P. v. Hughley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F066297

v. (Super. Ct. No. 12CM0108)

ANDRE JAMES HUGHLEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes and Donna Tarter, Judges.† Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Peña, J. † Judge Barnes presided over appellant’s change of plea hearing. Judge Tarter sentenced appellant.

INTRODUCTION On September 7, 2012, a first amended information was filed alleging appellant, Andre James Hughley, committed an assault with intent to commit rape (Pen. Code, § 220, subd. (b), count 1),1 rape (§ 261, subd. (a)(2), count 2), first degree burglary (§ 459, count 3), sexual penetration (§ 289, subd. (a)(1)(A), count 4), felony dissuasion of a witness (§ 136.1, subd. (a)(1), count 5), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 6). On September 7, 2012, appellant entered into a plea agreement and waived his constitutional rights in court pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The court explained the consequences of the change of plea to appellant and appellant waived a preliminary hearing on the newly added counts he was admitting. The parties acknowledged that there was a factual basis for the plea based on the sexual examination of the victim in the hospital and the police reports.2 Appellant pled no contest as charged in the first amended information to counts 5 and 6. On October 5, 2012, the trial court sentenced appellant to the midterm of three years on count 6 and to a consecutive term of eight months on count 5 for a total prison term of three years eight months. The court imposed a restitution fine of $720, granted