People v. Patzan CA6

Filed 11/8/23 P. v. Patzan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H050740 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2001668)

v.

HERMELINDO PIRIR PATZAN,

Defendant and Appellant.

I. INTRODUCTION Defendant Hermelindo Pirir Patzan pleaded no contest to four counts of lewd or lascivious acts upon a child under the age of 14 years by force, violence, duress, menace, or fear (Pen. Code, § 288, subd. (b)(1)).1 Defendant also stipulated to a list of aggravating circumstances stated in the complaint concerning each of these four counts (§ 1170, subd. (b)). Pursuant to a plea agreement, several remaining counts alleging various sexual misconduct against a child were dismissed. The trial court sentenced defendant to an aggregate term of 35 years in prison: 10 years for each of the first three counts and five years for the final count, with the sentences running consecutively. Defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue. We notified

1 All further statutory references are to the Penal Code.

defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and we have received no response from defendant. Pursuant to Wende, supra, 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record and determined that there are no arguable issues on appeal. Following the California Supreme Court’s direction in Kelly, we provide a brief description of the facts and the procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed. (Kelly, supra, at p. 110.) II. BACKGROUND Defendant’s stepdaughter testified at a preliminary hearing that beginning when she was 10 years old, defendant repeatedly touched her inappropriately and committed other sexual acts upon her or in her presence. She testified that she considered this behavior “normal” at first, and that defendant told her he would go to jail if she told anyone about his actions. She also testified that defendant’s brother committed similar sexual acts upon her. Defendant’s brother, Hector Pirir Patzan, was a co-defendant in this matter. The trial court recessed during the preliminary hearing testimony by defendant’s stepdaughter. Following the recess, counsel informed the trial court that the prosecution and the defendants reached a plea agreement. Accordingly, defendant pleaded no contest to four counts of lewd or lascivious acts upon his stepdaughter, and he stipulated to the aggravating circumstances for these counts alleged in the complaint. Defendant agreed to serve 35 years in prison and to waive certain rights, including his right to a preliminary hearing. Before sentencing, defendant wrote to the trial court, seeking to withdraw his no contest plea and to have new counsel appointed to represent him. Following a hearing on the matter, the trial court denied defendant’s requests. The trial court sentenced defendant to an aggregate term of 35 years in prison, consisting of the following: the upper term of 10 years for each of the first three counts of lewd or lascivious acts upon a child, and the lower term of five years for the final count of lewd or lascivious acts upon a child, with the terms running consecutively. The trial court awarded