People v. Garcia CA6

Filed 8/1/16 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042695 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS142125A)

v.

MARGARITO GONZALEZ GARCIA,

Defendant and Appellant.

By plea agreement, defendant Margarito Gonzalez Garcia was sentenced to 26 years in state prison for one count of forcible lewd and lascivious conduct upon John Doe (Pen. Code, § 288, subd. (b)(1))1; two counts of lewd and lascivious conduct upon John Doe (§ 288, subd. (a)); one count of forcible lewd and lascivious conduct upon Jane Doe (§ 288, subd. (b)(1)); and one count of lewd and lascivious conduct upon Jane Doe (§ 288, subd. (a)). Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf and received no response. We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440–441.) We include here a

1 Unspecified statutory references are to the Penal Code. Victims are referred to in the record as John Doe and Jane Doe. We do the same.

brief description of the facts and procedural history of the case, and the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123–124.) I. TRIAL COURT PROCEEDINGS According to the probation report, in 2014 John Doe’s mother reported to local law enforcement that she suspected defendant had sexually abused John Doe in 2012, based on a recent disclosure by John Doe. Defendant was known to John Doe’s mother. An officer interviewed John Doe, who told the officer that on five or six occasions defendant had put his penis inside John Doe’s anus. On at least one of those occasions, defendant had forcefully removed John Doe’s pants and underwear and pushed him down on his back to prevent him from moving. John Doe was 10 years old when he reported the abuse, meaning that he was around eight years old when the abuse occurred. Also in 2014, Jane Doe’s parents reported to a different police agency that they suspected defendant had sexually abused Jane Doe one month earlier, based on a recent disclosure by Jane Doe. Defendant was related to Jane Doe. An officer interviewed Jane Doe, who told the officer that on five or six occasions, defendant took off her clothing, kissed her on the mouth, touched her bare breasts, and penetrated her vagina and anus with his fingers and his penis. Jane Doe told defendant to stop but he would not. Jane Doe was seven years old at the time of the abuse. Defendant was held to answer and charged by information with: (count 1) sex or sodomy of John Doe (a child under 10 years old) (§ 288.7, subd. (a)); (count 2) sex or sodomy of Jane Doe (a child under 10 years old) (§ 288.7, subd. (a)); (count 3) forcible lewd acts with John Doe (§ 288, subd. (b)(1)); (counts 4 and 5) lewd acts with John Doe (§ 288, subd. (a)); and (counts 6 and 7) lewd acts with Jane Doe (§ 288, subd. (a)). The parties reached a stipulated disposition in May 2015. The People amended the information to add count eight (forcible lewd acts with Jane Doe (§ 288, subd. (b)(1))); defendant pleaded no contest to counts three, four, five, six, and eight; the