People v. Tate CA3

Filed 4/19/23 P. v. Tate CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Trinity) ----

THE PEOPLE,

Plaintiff and Respondent, C096307

v. (Super. Ct. Nos. 21F162, 19F153) RANDALL JOSEPH TATE,

Defendant and Appellant.

Appointed counsel for defendant Randall Joseph Tate asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will direct the trial court to correct the abstract of judgment. Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. I Defendant was charged with sexual intercourse and sodomy of a child 10 years old or younger by a person older than 18 years old (Pen. Code, § 288.7, subd. (a) - count I)1

1 Undesignated statutory references are to the Penal Code.

1

and committing a lewd and lascivious act on a child under 14 years old (§ 288, subd. (a) - count II). On February 26, 2020, the trial court found defendant incompetent to stand trial. On March 23, 2021, the trial court reinstated criminal proceedings. Two witnesses testified at defendant’s jury trial. P.L., who was 13 years old during trial, testified that once during the 2014-2015 school year when he was six years old, defendant pinned him with one arm behind his back, “stuck his penis inside of [P.L.’s] butt and thrusted several times.” B.L., P.L.’s mother, testified that defendant was her brother, who was born in March 1980, and would sometimes stay with her and her family in 2015. B.L. said around the time alleged in the complaint she would sometimes leave the kids at home for about 15 minutes to run to the store. B.L. also had surgery around that time and so she slept a lot due to the effects of pain medication. Defendant did not testify or present any evidence. On February 9, 2022, the jury acquitted defendant of sodomy of a child under 10 years old (count I) but found him guilty of committing a lewd and lascivious act on a child under 14 years old (count II). On May 5, 2022, the trial court sentenced defendant to the midterm of six years and imposed a $1,800 restitution fine (§ 1202.4), a $1,800 parole revocation fine (§ 1202.45), a $30 conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.