People v. Reynard CA6

Filed 4/2/14 P. v. Reynard CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039652 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. BB834607)

v. DUNCAN DAVID REYNARD,

Defendant and Appellant.

Pursuant to a negotiated disposition, Duncan Reynard (defendant) pleaded no contest to one count of committing a lewd or lascivious act on a child who was under the age of 14 years. (Pen. Code, § 288, subd. (a).)1 In addition, defendant admitted that he had suffered a prior conviction within the meaning of Penal Code section 667.61, subdivision (a). In exchange for his plea and admission, defendant was promised that the People would dismiss a second count of committing a lewd or lascivious act on a child who was under the age of 14 years and an associated strike allegation (Pen. Code, §§ 667, subds. (b)-(i) and 1170.12), and his sentence would be 25 years to life in prison. On October 7, 2010, the court sentenced defendant pursuant to the terms of the negotiated disposition. Over two years later, defense counsel attempted to file a notice of

1 Defendant had a prior conviction for violating Penal Code section 288, subdivision (a).

appeal, which was received by the Superior Court, but not filed.2 On July 8, 2013, this court granted counsel's motion for relief from default; counsel filed a new notice of appeal on July 16, 2013, in which he appealed from the judgment on the ground that the court committed sentencing error. Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested. On November 22, 2013, by letter, we notified defendant of his right to submit written argument on his own behalf within 30 days. That time has passed and we have not received a response from defendant. Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) Facts and Proceedings Below No charging document appears in the record and the facts underlying the counts are taken from the probation officer's report. "[T]he defendant, a dog walker for the victim's family, masturbated in front of a five year old victim, in her bedroom. He touched her vagina and forcefully pulled her