Filed 11/29/23 P. v. Diaz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081923
v. (Super.Ct.No. FWV21004393)
ANTONIO DIAZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I.
INTRODUCTION
Pursuant to a negotiated disposition, defendant and appellant Antonio Diaz pled
guilty to one count of committing a lewd act on a child under the age of 14 years (Pen.
Code,1 § 288, subd. (a)) and one count of continuous sexual abuse of a child (§ 288.5).
In exchange, the remaining charges and enhancement allegations were dismissed. After
the trial court denied defendant’s motion to withdraw his guilty plea, defendant was
sentenced to a total stipulated term of 20 years in state prison.
Defendant appeals from an order after judgment. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has not done so. Based on our independent review of the record, we
find no error and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
Defendant raped and sexually molested his granddaughter when she was between
the ages of six and 14 years old. The victim eventually reported the abuse when she was
21 years old after her cousin made similar allegations and her cousin was being
1 Unless otherwise stated, all future statutory references are to the Penal Code.
2 A summary of the factual background is taken from the probation report.
2 threatened by family members not to speak with the police. During pretext phone calls
between the victim and defendant, defendant made statements indicating that the victim
wanted the sexual abuse to occur.
On November 24, 2021, a felony complaint was filed charging defendant with two
counts of sexual intercourse with a child 10 years or younger (§ 288.7, subd. (a); counts 1
& 2), and four counts of committing lewd acts upon a child under the age of 14 years
(§ 288, subd. (a); counts 3-6). As to counts 3 through 6, the complaint also alleged that
there were multiple victims within the meaning of section 667.61, subdivisions (j)(1) and
(d).
Following numerous continuances by the prosecutor and defendant’s retained
counsel, on February 9, 2023, the People amended the felony complaint by adding
count 7, continuous sexual abuse of a child (§ 288.5). On that same date, pursuant to a
negotiated plea agreement, defendant pled guilty to counts 3 and 7. In return, defendant
was promised a stipulated term of 20 years in state prison and dismissal of the remaining
charges and enhancement allegations.
Prior to pleading guilty, defendant executed a felony plea form under section 859a
with the assistance of a Spanish interpreter. The trial court went over the plea form with
defendant at the February 9, 2023 hearing with the assistance of an interpreter. In
response to the trial court’s query, defendant indicated he had gone over the plea form
with his attorney with the assistance of the interpreter, he had initialed and signed the
plea form, and he understood all of his legal rights and consequences of his plea.
3 Defendant indicated that he had enough time to speak with his attorney about the terms of
his plea agreement, and his counsel concurred. Because defendant indicated he had
memory issues, the trial court explicitly explained the terms of defendant’s plea
agreement, including lifetime registration as a sex offender. In response to the court’s
question of whether defendant wanted to proceed with the plea bargain agreement,
defendant stated, “Yes. That’s fine, yes.” The trial court thereafter informed defendant
of his constitutional rights and the consequences of pleading guilty or no contest.
Defendant indicated to the court that he understood his rights, consequences of the plea,
and the plea agreement. Defendant stated he had no questions for the court and that he
was entering into the plea agreement on his own free will. Defendant’s counsel joined
with defendant in the plea agreement and the People accepted defendant’s plea. The
parties stipulated the court could consider the police reports for the factual basis for the
plea. After directly examining defendant, the court found defendant understood his plea
form, the nature of the charges, the consequences of pleading guilty, and his
constitutional rights. The court also found defendant had knowingly, intelligently, freely,
and voluntarily waived his constitutional rights, and that there was a factual basis for his
plea. The court thereafter referred the case to the probation department for the
preparation of a sentencing report.
On June 28, 2023, the date scheduled for sentencing, defendant’s retained counsel
indicated defendant did not want his services and requested counsel be appointed for
defendant. Counsel also stated that defendant wanted a better plea deal to which counsel
4 explained to him was not possible. The court agreed, noting “[t]he deal [was] done,” and
unless there was good cause to withdraw the plea, the court was ready to sentence
defendant. Defendant stated that he did not want his retained counsel representing him
anymore, and wanted the court-appointed counsel to represent him. After speaking with
defendant, appointed counsel noted defendant wanted to file a motion to withdraw his
plea, claiming his retained counsel was not forthcoming as to the plea form and the
collateral consequences of the plea.
On July 10, 2023, defendant’s appointed counsel filed a motion to withdraw
defendant’s guilty pleas. He argued that on the day of his guilty pleas, he was not eager
to enter the pleas, was experiencing mental health issues, did not want the deal, and did
not understand what was occurring. He also claimed that his retained counsel stated the
20-year sentence would be negotiable, that he was under great pressure at the time of his
pleas, and he was confused as to the nature and consequences of his pleas.
The trial court heard defendant’s motion on July 28, 2023. Following argument
by the parties and review of the plea hearing transcript, the trial court denied defendant’s
motion to withdraw his guilty pleas. The court thereafter sentenced defendant in
accordance with his plea agreement to 20 years in state prison, the upper term of eight
years on count 3 in violation of section 288, subdivision (a), and the middle term of 12
years on count 7 in violation of section 288.5 with 670 days’ credit for time served.
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Filed 11/29/23 P. v. Diaz CA4/2
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081923
v. (Super.Ct.No. FWV21004393)
ANTONIO DIAZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I.
INTRODUCTION
Pursuant to a negotiated disposition, defendant and appellant Antonio Diaz pled
guilty to one count of committing a lewd act on a child under the age of 14 years (Pen.
Code,1 § 288, subd. (a)) and one count of continuous sexual abuse of a child (§ 288.5).
In exchange, the remaining charges and enhancement allegations were dismissed. After
the trial court denied defendant’s motion to withdraw his guilty plea, defendant was
sentenced to a total stipulated term of 20 years in state prison.
Defendant appeals from an order after judgment. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has not done so. Based on our independent review of the record, we
find no error and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
Defendant raped and sexually molested his granddaughter when she was between
the ages of six and 14 years old. The victim eventually reported the abuse when she was
21 years old after her cousin made similar allegations and her cousin was being
1 Unless otherwise stated, all future statutory references are to the Penal Code.
2 A summary of the factual background is taken from the probation report.
2 threatened by family members not to speak with the police. During pretext phone calls
between the victim and defendant, defendant made statements indicating that the victim
wanted the sexual abuse to occur.
On November 24, 2021, a felony complaint was filed charging defendant with two
counts of sexual intercourse with a child 10 years or younger (§ 288.7, subd. (a); counts 1
& 2), and four counts of committing lewd acts upon a child under the age of 14 years
(§ 288, subd. (a); counts 3-6). As to counts 3 through 6, the complaint also alleged that
there were multiple victims within the meaning of section 667.61, subdivisions (j)(1) and
(d).
Following numerous continuances by the prosecutor and defendant’s retained
counsel, on February 9, 2023, the People amended the felony complaint by adding
count 7, continuous sexual abuse of a child (§ 288.5). On that same date, pursuant to a
negotiated plea agreement, defendant pled guilty to counts 3 and 7. In return, defendant
was promised a stipulated term of 20 years in state prison and dismissal of the remaining
charges and enhancement allegations.
Prior to pleading guilty, defendant executed a felony plea form under section 859a
with the assistance of a Spanish interpreter. The trial court went over the plea form with
defendant at the February 9, 2023 hearing with the assistance of an interpreter. In
response to the trial court’s query, defendant indicated he had gone over the plea form
with his attorney with the assistance of the interpreter, he had initialed and signed the
plea form, and he understood all of his legal rights and consequences of his plea.
3 Defendant indicated that he had enough time to speak with his attorney about the terms of
his plea agreement, and his counsel concurred. Because defendant indicated he had
memory issues, the trial court explicitly explained the terms of defendant’s plea
agreement, including lifetime registration as a sex offender. In response to the court’s
question of whether defendant wanted to proceed with the plea bargain agreement,
defendant stated, “Yes. That’s fine, yes.” The trial court thereafter informed defendant
of his constitutional rights and the consequences of pleading guilty or no contest.
Defendant indicated to the court that he understood his rights, consequences of the plea,
and the plea agreement. Defendant stated he had no questions for the court and that he
was entering into the plea agreement on his own free will. Defendant’s counsel joined
with defendant in the plea agreement and the People accepted defendant’s plea. The
parties stipulated the court could consider the police reports for the factual basis for the
plea. After directly examining defendant, the court found defendant understood his plea
form, the nature of the charges, the consequences of pleading guilty, and his
constitutional rights. The court also found defendant had knowingly, intelligently, freely,
and voluntarily waived his constitutional rights, and that there was a factual basis for his
plea. The court thereafter referred the case to the probation department for the
preparation of a sentencing report.
On June 28, 2023, the date scheduled for sentencing, defendant’s retained counsel
indicated defendant did not want his services and requested counsel be appointed for
defendant. Counsel also stated that defendant wanted a better plea deal to which counsel
4 explained to him was not possible. The court agreed, noting “[t]he deal [was] done,” and
unless there was good cause to withdraw the plea, the court was ready to sentence
defendant. Defendant stated that he did not want his retained counsel representing him
anymore, and wanted the court-appointed counsel to represent him. After speaking with
defendant, appointed counsel noted defendant wanted to file a motion to withdraw his
plea, claiming his retained counsel was not forthcoming as to the plea form and the
collateral consequences of the plea.
On July 10, 2023, defendant’s appointed counsel filed a motion to withdraw
defendant’s guilty pleas. He argued that on the day of his guilty pleas, he was not eager
to enter the pleas, was experiencing mental health issues, did not want the deal, and did
not understand what was occurring. He also claimed that his retained counsel stated the
20-year sentence would be negotiable, that he was under great pressure at the time of his
pleas, and he was confused as to the nature and consequences of his pleas.
The trial court heard defendant’s motion on July 28, 2023. Following argument
by the parties and review of the plea hearing transcript, the trial court denied defendant’s
motion to withdraw his guilty pleas. The court thereafter sentenced defendant in
accordance with his plea agreement to 20 years in state prison, the upper term of eight
years on count 3 in violation of section 288, subdivision (a), and the middle term of 12
years on count 7 in violation of section 288.5 with 670 days’ credit for time served.
Defendant was ordered to pay a $300 restitution fine, an $80 court operation assessment,
5 a $60 conviction assessment, and a stayed $300 parole revocation fine. He was also
ordered to register for life as a sex offender.
On August 11, 2023, defendant timely filed a notice of appeal and request for a
certificate of probable cause. The trial court granted defendant’s request for a certificate
of probable cause as to the motion to withdraw his guilty pleas.
III.
DISCUSSION
After defendant appealed, this court appointed counsel to represent him. Upon
examination of the record, counsel has filed a brief under the authority of Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issue of whether the trial court erred by
denying defendant’s motion to withdraw his guilty pleas, and requesting this court to
conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;
People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see
People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
6 Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J. We concur:
FIELDS J.
RAPHAEL J.