People v. Vargascortes CA5

Filed 7/25/16 P. v. Vargascortes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F071063 Plaintiff and Respondent, (Super. Ct. No. MF011378A) v.

SILVANO VARGASCORTES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Detjen, J.

Appellant Silvano Vargascortes appeals the denial of his motion to withdraw his nolo contendere plea to one count of assault with the intent to commit rape (Pen. Code, §§ 220, 261, subd. (a)(2))1 and one count of kidnapping (§ 207, subd. (a)). Appellant contends evidence developed following his plea, from two witnesses known prior to when the plea was entered, was sufficient to justify his requested withdrawal. Appellant further argues he received ineffective assistance of counsel because his counsel failed to fully investigate a potential defense before appellant’s plea was entered. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND2 On September 1, 2014, Kern County Sheriff’s Deputy Giovanni Rodriquez responded to a call regarding a sexual assault. The victim of the assault, an acquaintance of appellant, explained she had borrowed appellant’s truck to go to the store. When she attempted to return the keys to appellant in front of his house, appellant grabbed her arm and dragged her into the residence. The victim protested and tried to resist, but was overpowered by appellant who told her not to resist or it would be worse. Once inside the home, appellant took the victim to his bedroom and threw her on the bed. He disrobed and attempted to take off the victim’s shorts and underwear, saying he liked her but knew she would not allow him to do this voluntarily. She screamed and fought, but appellant covered her mouth and struck her near the eye. Knowing the victim had recently had surgery on that eye, appellant stopped his attack and allowed appellant to go to the bathroom while he got her some water. The victim used this opportunity to try to flee, but was caught by appellant and dragged back to the bedroom.