People v. Rios CA6

Filed 7/17/14 P. v. Rios CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040478 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1243147)

v.

ULYSSES ALEXANDER RIOS,

Defendant and Appellant.

Defendant Ulysses Alexander Rios pleaded no contest to forcible rape (Pen. Code, § 261, subd. (a)(2)),1 simple kidnapping (§ 207), and assault with intent to commit rape (§ 220). Prior to sentencing, Rios sought to withdraw his plea and to replace his appointed counsel. Following a Marsden2 hearing, the court denied the motion and sentenced Rios to a term of 15 years. Rios’s 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. We notified Rios of his right to submit a written argument on his own behalf. Rios submitted a letter brief, which we accepted for filing and have considered, despite the fact that it was submitted two months late. Pursuant to Wende, we reviewed the entire record and have concluded that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106,

1 Further unspecified statutory references are to the Penal Code. 2 People v. Marsden (1970) 2 Cal.3d 118.

110, we will 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.” We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) I. FACTUAL BACKGROUND3 Late one evening in August 2012, victim 1, a 59-year-old woman, was walking home because she missed the last bus. A man, who she identified at the preliminary hearing as Rios, approached her and offered her a ride home. She accepted. Rios drove victim 1 in the wrong direction and ignored her pleas to pull over and let her out. Eventually, Rios stopped outside a house and told victim 1, “I’m just going to have quick sex with you and then I’ll take you home.” Victim 1 ran away. Rios followed her in his vehicle until she flagged down another car. Victim 1 acknowledged that Rios never displayed any weapons or touched her during the incident. She did not report the incident to police, believing no crime had been committed. Two months later, on October 4, 2012, Rios approached victim 1 again while she was waiting at a bus stop. Recognizing Rios, victim 1 walked towards a nearby Burger King. On her way, she saw the vehicle from the August incident parked near the Burger King and took a picture of its license plate with her cell phone. Rios, who had followed her, grabbed her arm and tried to take her phone. Following a brief struggle, victim 1 got away and ran to the Burger King where a customer called the police. The probation report’s summary of the police report is consistent with victim 1’s testimony at the preliminary hearing. On October 11, 2012, victim 2, a 20-year-old woman, was waiting at a bus stop when a man she did not know pulled up in his car and started a conversation with her. At