Filed 10/9/13 P. v. Ruiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E058318
v. (Super.Ct.No. RIF1203302)
MANUEL ANTHONY RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea bargain, defendant and appellant Manuel Anthony Ruiz pleaded
guilty to two counts of violating Penal Code section 288, subdivision (b)(1) (lewd and
lascivious act on a child under age 14, by force, violence, duress, menace or fear), and
1 two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious act
on a child under age 14). He received an agreed sentence of 19 years.
Defendant obtained a certificate of probable cause and filed a notice of appeal.
We affirm.
FACTS AND PROCEDURAL HISTORY
At the change-of-plea hearing, the parties stipulated that the police report would
provide a factual basis for the pleas. Local sheriffs received a report of possible child
molestation from the victim’s mother. The mother related that her daughter, nine-year-
old Jane Doe, had attended a sleepover weekend at a friend’s home. Defendant and his
wife were the responsible adults at the home where Jane Doe was staying. While Jane
Doe was asleep, defendant came into the room and awakened her. Defendant took Jane
Doe onto his lap and began rubbing her between her legs. He asked her, “[d]oes it feel
good?” Jane Doe attempted to close her legs, but defendant continued to push them
apart. Defendant also put his hand inside Jane Doe’s underwear and touched her vaginal
area underneath her clothes.
Jane Doe also reported to her mother that defendant had taken his two children and
Jane Doe to the movies the same weekend. During the show, Jane Doe accidentally
spilled some candies on her lap; some fell onto the seat between her legs. Defendant
helped retrieve the candies, using the opportunity to touch Jane Doe’s vagina. When Jane
Doe told defendant there were no more candies to clean up, he continued to touch her
near her vagina, with what Jane Doe described as a “scratching” motion.
2 In the course of the investigation, officers arranged for the victim’s mother to
make some monitored “pretext” telephone calls to defendant. During the conversations,
defendant admitted touching the victim inside her underwear. He agreed to meet with the
victim’s mother at her house.
When defendant arrived at the house, he was met by law enforcement officers; the
officers told defendant that he was not under arrest, but they wished to talk to him about
the incidents with Jane Doe. Defendant accompanied officers in an unmarked squad car.
Defendant was not handcuffed. At the station, defendant was again advised that he was
not under arrest, that he did not have to answer any questions, and that he was free to
leave at any time. Defendant indicated that he understood, and thereafter he participated
in the interview.
During the interview, defendant admitted molesting Jane Doe when she stayed
overnight at his house. He recalled placing his hand inside her underwear and rubbing
her vagina, though he denied penetrating her. He also described taking the children to the
movie theater, when Jane Doe spilled candy on her lap. He helped pick up the spilled
candy, but denied touching Jane Doe’s vagina while cleaning up the candy. At the end of
the interview, defendant wrote Jane Doe a letter of apology.1 After this, when the
investigating officer returned to the interview room, he informed defendant that he was
1The letter made no specific admissions as to any particular conduct. Defendant wrote that the victim was “a very special girl,” and that she had done nothing wrong. “Sometimes grown[-]ups make mistakes and I made the biggest one that hurt you . . . .” Defendant stated, “I don’t know what I was thinking to do something so stupid.” He asked the victim to “forgive me for my actions.”
3 under arrest, and read the Miranda warnings. In a further interview, defendant admitted
touching Jane Doe both over and under her underwear.
As a result of these events, on June 28, 2012, defendant was initially charged with
one count of violation of Penal Code section 288, subdivision (a) (lewd and lascivious act
on a child under age 14), and one count of violation of Penal Code section 288.7,
subdivision (b) (sexual penetration by a person over age 18, of a child age 10 or
younger). The charge in count 2 carried a term of 15 years to life if defendant were
convicted. (Pen. Code, § 288.7, subd. (b).)
At a hearing on February 8, 2013, the parties advised the court that they had
reached a negotiated disposition. Because the offense in count 2 carried a life term, the
parties had agreed to a disposition that would result in a determinate term. Accordingly,
the complaint was amended orally to add four additional counts: counts 3 and 4 alleged
violation of Penal Code section 288, subdivision (b)(1). Counts 5 and 6 alleged violation
of Penal Code section 288, subdivision (a). Defendant’s maximum exposure in pleading
guilty to the new charges was 24 years, but the parties negotiated a sentence of 19 years.
At first, defendant said that he did not realize that all four counts would be treated as
strikes. However, he ultimately understood that, if he committed a new strike offense, he
would be treated as a third striker, and that understanding did not change his position on
the guilty plea.
Defendant had initialed and signed a plea agreement form memorializing the terms
of the bargain. Defendant initialed the rights advisements, as well as advisements of the
consequences of his plea. Defendant also initialed provisions to the effect that all
4 promises made to him were written on the form, or stated orally in open court, and that he
had not been threatened or pressured to plead guilty. Defendant also expressly waived
his right to appeal. The plea form expressly recited that defendant had been advised he
was pleading to four strike offenses.
Defendant was sentenced in accordance with the plea agreement to a determinate
term of 19 years on counts 3 through 6. Counts 1 and 2 were dismissed in the interest of
justice.
About a month after the plea and sentencing, and notwithstanding his waiver of
appeal, defendant filed a notice of appeal in the trial court. He averred that he had
pleaded guilty “under extreme duress, with my attorney insisting that I would otherwise
receive a ‘[l]ife’ term of imprisonment.” Defendant also stated that, “[m]y attorney was
rude to me to the point of obvious bias and partiality. My attorney originally informed
me that she was seeking a 1 year [sic] county jail commitment w/ 3 yr. [sic] probation.
(Obvious incompetence as I ended up with 19 years in extreme contrast.) Evidence in the
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Filed 10/9/13 P. v. Ruiz 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, E058318
v. (Super.Ct.No. RIF1203302)
MANUEL ANTHONY RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea bargain, defendant and appellant Manuel Anthony Ruiz pleaded
guilty to two counts of violating Penal Code section 288, subdivision (b)(1) (lewd and
lascivious act on a child under age 14, by force, violence, duress, menace or fear), and
1 two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious act
on a child under age 14). He received an agreed sentence of 19 years.
Defendant obtained a certificate of probable cause and filed a notice of appeal.
We affirm.
FACTS AND PROCEDURAL HISTORY
At the change-of-plea hearing, the parties stipulated that the police report would
provide a factual basis for the pleas. Local sheriffs received a report of possible child
molestation from the victim’s mother. The mother related that her daughter, nine-year-
old Jane Doe, had attended a sleepover weekend at a friend’s home. Defendant and his
wife were the responsible adults at the home where Jane Doe was staying. While Jane
Doe was asleep, defendant came into the room and awakened her. Defendant took Jane
Doe onto his lap and began rubbing her between her legs. He asked her, “[d]oes it feel
good?” Jane Doe attempted to close her legs, but defendant continued to push them
apart. Defendant also put his hand inside Jane Doe’s underwear and touched her vaginal
area underneath her clothes.
Jane Doe also reported to her mother that defendant had taken his two children and
Jane Doe to the movies the same weekend. During the show, Jane Doe accidentally
spilled some candies on her lap; some fell onto the seat between her legs. Defendant
helped retrieve the candies, using the opportunity to touch Jane Doe’s vagina. When Jane
Doe told defendant there were no more candies to clean up, he continued to touch her
near her vagina, with what Jane Doe described as a “scratching” motion.
2 In the course of the investigation, officers arranged for the victim’s mother to
make some monitored “pretext” telephone calls to defendant. During the conversations,
defendant admitted touching the victim inside her underwear. He agreed to meet with the
victim’s mother at her house.
When defendant arrived at the house, he was met by law enforcement officers; the
officers told defendant that he was not under arrest, but they wished to talk to him about
the incidents with Jane Doe. Defendant accompanied officers in an unmarked squad car.
Defendant was not handcuffed. At the station, defendant was again advised that he was
not under arrest, that he did not have to answer any questions, and that he was free to
leave at any time. Defendant indicated that he understood, and thereafter he participated
in the interview.
During the interview, defendant admitted molesting Jane Doe when she stayed
overnight at his house. He recalled placing his hand inside her underwear and rubbing
her vagina, though he denied penetrating her. He also described taking the children to the
movie theater, when Jane Doe spilled candy on her lap. He helped pick up the spilled
candy, but denied touching Jane Doe’s vagina while cleaning up the candy. At the end of
the interview, defendant wrote Jane Doe a letter of apology.1 After this, when the
investigating officer returned to the interview room, he informed defendant that he was
1The letter made no specific admissions as to any particular conduct. Defendant wrote that the victim was “a very special girl,” and that she had done nothing wrong. “Sometimes grown[-]ups make mistakes and I made the biggest one that hurt you . . . .” Defendant stated, “I don’t know what I was thinking to do something so stupid.” He asked the victim to “forgive me for my actions.”
3 under arrest, and read the Miranda warnings. In a further interview, defendant admitted
touching Jane Doe both over and under her underwear.
As a result of these events, on June 28, 2012, defendant was initially charged with
one count of violation of Penal Code section 288, subdivision (a) (lewd and lascivious act
on a child under age 14), and one count of violation of Penal Code section 288.7,
subdivision (b) (sexual penetration by a person over age 18, of a child age 10 or
younger). The charge in count 2 carried a term of 15 years to life if defendant were
convicted. (Pen. Code, § 288.7, subd. (b).)
At a hearing on February 8, 2013, the parties advised the court that they had
reached a negotiated disposition. Because the offense in count 2 carried a life term, the
parties had agreed to a disposition that would result in a determinate term. Accordingly,
the complaint was amended orally to add four additional counts: counts 3 and 4 alleged
violation of Penal Code section 288, subdivision (b)(1). Counts 5 and 6 alleged violation
of Penal Code section 288, subdivision (a). Defendant’s maximum exposure in pleading
guilty to the new charges was 24 years, but the parties negotiated a sentence of 19 years.
At first, defendant said that he did not realize that all four counts would be treated as
strikes. However, he ultimately understood that, if he committed a new strike offense, he
would be treated as a third striker, and that understanding did not change his position on
the guilty plea.
Defendant had initialed and signed a plea agreement form memorializing the terms
of the bargain. Defendant initialed the rights advisements, as well as advisements of the
consequences of his plea. Defendant also initialed provisions to the effect that all
4 promises made to him were written on the form, or stated orally in open court, and that he
had not been threatened or pressured to plead guilty. Defendant also expressly waived
his right to appeal. The plea form expressly recited that defendant had been advised he
was pleading to four strike offenses.
Defendant was sentenced in accordance with the plea agreement to a determinate
term of 19 years on counts 3 through 6. Counts 1 and 2 were dismissed in the interest of
justice.
About a month after the plea and sentencing, and notwithstanding his waiver of
appeal, defendant filed a notice of appeal in the trial court. He averred that he had
pleaded guilty “under extreme duress, with my attorney insisting that I would otherwise
receive a ‘[l]ife’ term of imprisonment.” Defendant also stated that, “[m]y attorney was
rude to me to the point of obvious bias and partiality. My attorney originally informed
me that she was seeking a 1 year [sic] county jail commitment w/ 3 yr. [sic] probation.
(Obvious incompetence as I ended up with 19 years in extreme contrast.) Evidence in the
form of a [p]sychiatric [e]valuation, very ‘favorable’ to me which could have mitigated
my sentence was not presented.” Defendant acknowledged that the appeal was an attack
on the validity of the plea and requested a certificate of probable cause, which the trial
court granted. Defendant described the possible issues on appeal as:
“1) Ineffective assistance of [c]ounsel/[u]nethical behavior.
“2) Mitigating factors, i.e., ‘favorable’ psychiatric evaluation was not introduced
at sentencing.
“3) Cruel and unusual punishment [r]e: [l]ength of [s]entence.”
5 ANALYSIS
Pursuant to request, this court appointed counsel to represent defendant on appeal.
Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and
Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a
statement of the case and a summary of the facts, but making no substantive arguments.
Counsel has identified some potential issues for appeal (i.e., whether the factual basis
stipulated in the police report supports conviction of forcible molestation, whether the
facts support the charging and conviction of four separate counts—and, if not, whether
counsel was incompetent in agreeing to this settlement—and whether the issuance of a
certificate of probable cause negates defendant’s waiver of his appeal rights), and
requested this court to undertake a review of the entire record.
Defendant has been offered the opportunity to file a personal supplemental brief,
which he has not done. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have
reviewed the record in its entirety and find no arguable issues. As to the suggestion that
the stipulated facts in the police report were insufficient to support the charges, we
disagree. The victim, Jane Doe, described incidents that had taken place on two different
dates, once during an overnight “sleepover,” and once at a movie theater. On both dates,
defendant touched the victim both over and under her underwear. On one occasion,
defendant persisted in pushing the victim’s legs apart when she tried to resist him by
closing her legs. On the other, defendant continued pushing his hand into the victim’s
vaginal area, using both “scratching” and in-and-out motions, after she told him there was
no more candy to clean up. The evidence was sufficient to support four separate counts,
6 and two counts of forcible lewd and lascivious acts. There was consequently no
ineffective assistance of counsel in negotiating the agreed settlement.
Notwithstanding defendant’s waiver of his appeal rights, his claim on appeal is
that he accepted the plea bargain under duress; the acceptance of the bargain under duress
naturally calls into question the basis of the bargain itself, and all of its terms, including
the waiver of defendant’s appeal rights. (See People v. Mitchell (2011) 197 Cal.App.4th
1009, 1015 [To be enforceable, a defendant’s waiver of the right to appeal must be
knowing, intelligent, and voluntary.]; see also People v. Panizzon (1996) 13 Cal.4th 68,
80 [The voluntariness of a waiver is a question of law which appellate courts review de
novo.].)
Defendant’s notice of appeal, as we have already noted, set forth several possible
grounds. Defendant’s claim of duress is without merit. The charges defendant faced
included an offense carrying an indeterminate term of 15 years to life—the “life” count to
which defendant referred. That his attorney told him of the risk of exposure to an
indeterminate life sentence, if he went to trial, as opposed to the negotiated determinate
term of 19 years (out of a maximum 24), did not constitute undue “duress.” That a
defendant enters a plea “reluctantly” or “unwillingly,” subject to the “persuasions” of
counsel, while being correctly advised of the consequences of not entering a plea, does
not mean that the plea was involuntary or unknowing. (See People v. Urfer (1979) 94
Cal.App.3d 887, 892.) Defendant’s present claim also contradicts his plea form, on
which he had initialed the statement that he had not been coerced or pressured into
entering the plea.
7 The claims of ineffective assistance of counsel are also without merit. Defendant
was referred for a psychological evaluation pursuant to Penal Code section 288.1, to
determine his eligibility to have his sentence suspended.2 As defendant notes, the report
was favorable, in the sense that the evaluator opined that defendant was not a pedophile,
he was not a danger to the community or to the victim, and he should be considered
eligible for probation under the statute. However, counsel’s inability to negotiate a
minimal or probationary term does not demonstrate either that counsel’s performance
was deficient, or that defendant was prejudiced thereby. (Strickland v. Washington
(1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674].) The filed
charges were extremely serious, and counsel was able to bargain for a determinate term
on new charges of reduced severity. The failure to present the psychological evaluation
at sentencing was of no moment, as the sentence itself was imposed in strict accordance
with the negotiated bargain. The court was, presumably, fully aware at all times of the
evaluator’s confidential report, which had been filed pursuant to the court’s order.
Defendant’s sentence of 19 years was not cruel and unusual for four strike sex offenses.
None of potential issues has arguable merit.
2 Penal Code section 288.1 provides: “Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.”
8 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
HOLLENHORST Acting P. J.
MILLER J.