People v. Ruiz CA1/3

Filed 1/23/14 P. v. Ruiz CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A138242 v. CARLOS RENE CAMAAL RUIZ, (Marin County Super. Ct. No. SC181293A) Defendant and Appellant.

Carlos Rene Camaal Ruiz (appellant) appeals from a judgment entered after he pleaded guilty to continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a), count 1) 1 and three counts of engaging in a lewd act on a person under the age of 14 (§ 288, subd. (a), counts 5, 9, and 10), and the trial court sentenced him to a total of 22 years in state prison. He contends the trial court erred in the way it calculated the sentence on counts five, nine and ten. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On October 10, 2012, a first amended complaint was filed charging appellant with: (1) continuous sexual abuse of a child (§ 288.5, subd. (a), count 1); (2) aggravated sexual assault of a child (§ 269, subd. (a)(1), count 2); (3) rape (§ 261, subd. (a)(2), count 3); (4) oral copulation on a person under age 14 and more than 10 years younger than the defendant (§ 288a, subd. (c), count 4); (5) lewd act on a person under age 14 (§ 288, subd. (a), counts 5, 9, and 10); (6) penetration with a foreign object (§ 289, subd. (j),

1 All further statutory references are to the Penal Code unless otherwise stated.

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count 6); (7) attempted sodomy of a person under age 14 and more than 10 years younger than the defendant (§§ 664, 289, subd. (c)(1), count 7); and (8) distribution of lewd material to a minor (§ 288.2, subd. (a), count 8). On October 10, 2012, appellant pleaded guilty to counts 1, 5, 9, and 10, for a stipulated sentence of 22 years in state prison. On November 21, 2012, the trial court denied appellant’s Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). On January 24, 2013, the trial court granted appellant’s motion to proceed in pro per. On March 19, 2013, the trial court denied appellant’s motion to withdraw his plea. After reviewing the probation officer’s report, the court denied probation and sentenced appellant on count 1 to the upper term of 16 years. On counts 5, 9, and 10, the court imposed subordinate consecutive upper terms of eight years and stayed all but two years on each of the subordinate counts. On March 22, 2013, appellant filed a timely notice of appeal. The court denied his request for a certificate of probable cause. Because the facts of the crimes are not relevant to the issue presented on appeal, they are briefly stated.2 Appellant lived with the victim and her mother. On July 12, 2012, the victim, 12 years old, told her mother appellant had been sexually abusing her at least once per week since she was in the fifth grade. She said the abuse occurred in her bedroom when her mother was not home, and that appellant threatened to beat her if she told her mother what he had been doing. In a pretext telephone call, appellant did not deny the allegations. When subjected to a sexual assault forensic examination, the victim told the doctor that appellant had assaulted her by having vaginal and anal intercourse, digitally penetrating her vagina, orally copulating her, and forcing her to orally copulate him. DISCUSSION As noted, the trial court sentenced appellant to a stipulated 22-year term by imposing the upper term of 16 years on count 1, and by imposing the upper term of eight years on subordinate counts 5, 9, and 10, and staying all but two of the eight years on