People v. Smith

Opinion

THE COURT* Statement of the Case

On June 2, 1987, appellant pled nolo contendere before a magistrate to two felony charges alleging a violation of Penal Code1 section 288, subdivision (a) (lewd or lascivious conduct with a child under 14 years of age) and a violation of section 288a, subdivision (c) (oral copulation with another person who is under 14 years of age and more than 10 years younger than the defendant). The matter was certified to the superior court pursuant to section 859a.

[1498]Thereafter, the superior court granted appellant’s motion to remand his case to the municipal court because of the magistrate’s failure to advise appellant of the mental condition report proceedings authorized by section 288.1.2

The magistrate denied appellant’s motion to withdraw his plea and recertified the case to the superior court for sentencing.

The superior court denied probation and imposed the upper prison term of eight years for violation of section 288, subdivision (a) and a consecutive two-year midterm for violation of section 288a, subdivision (c).

Appellant makes two contentions on appeal: First, the magistrate erred in denying the motion to withdraw the nolo contendere plea. Second, when sentencing appellant, the superior court erroneously failed to consider factors in mitigation and considered improper factors in aggravation. We reject both contentions and affirm the judgment.

Statement of Facts

Between January 28, 1987, and February 4, 1987, appellant forced his 10-year-old daughter to orally copulate him. Afterward, he touched her vaginal area with his tongue and then placed his erect penis either on or inside her vagina. The daughter had not reported these incidents because appellant had threatened to beat her “half to death.” She believed the threat because appellant “had hit her before when ‘he was doing it.’”

Discussion

I. The magistrate properly denied appellant’s motion to withdraw his plea.

The record shows appellant was fully advised of his Boykin-Tahl rights before entering his plea. (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) He also was advised of the primary and direct consequences of his plea including the permissible range of sentences. (In re Birch (1973) 10 Cal.3d 314, 319-320 [110 Cal.Rptr. 212, 515 P.2d 12]; Bunnell v.