People v. Gaines CA3 ( 2021 )

Filed 4/21/21 P. v. Gaines 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
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THE PEOPLE, C091438
Plaintiff and Respondent, (Super. Ct. No.
STKCRFECOD20180010502)
v.
DARRELL GAINES,
Defendant and Appellant.
Appointed counsel for defendant Darrell Gaines filed an opening brief setting
forth the facts of the case and asking this court to review the record to determine whether
there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436(Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
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FACTUAL AND PROCEDURAL BACKGROUND
The child victims, L. and M., reported that defendant repeatedly molested them in
multiple acts over the course of years. Defendant was charged with committing lewd and
lascivious acts against L., a child under the age of 14 (Pen. Code, § 288, subd. (a)),1
between February 2, 2014 and February 2, 2018 (counts 1 & 2); committing a forcible
lewd and lascivious act against L. (§ 288, subd. (b)(1)) between February 2, 2014 and
February 2, 2018 (count 3); committing a lewd and lascivious act against L., a child of 14
or 15 (§ 288, subd. (c)(1)) between February 2 and July 29, 2018 (count 4); dissuading a
witness (L.) by threat (§ 136.1, subd. (c)(1)) between February 2, 2014 and July 29, 2018
(count 5); and committing lewd and lascivious acts against M. between October 6, 2017
and July 13, 2018 (counts 6 & 7). It was alleged as to all sex-related counts that
defendant committed the offenses against more than one victim. (§ 667.61, subd. (e)(4).)
Following defendant’s first trial by jury, the trial court declared a mistrial as to all
seven counts after the jury declared itself at an impasse. After retrial began, the court
granted the People’s motion to amend count 3 to charge a violation of section 288,
subdivision (a) and granted the People’s motions to dismiss count 5 and the multiple
victim allegation as to count 4. The jury returned guilty verdicts on counts 1 through 4
(involving L.) but declared itself deadlocked on counts 6 and 7 (involving M.) and
consequently did not return findings on the multiple victim allegations. The court
declared a mistrial as to counts 6 and 7.
The trial court sentenced defendant to an aggregate term of 12 years eight months
in state prison, as follows: the upper term of eight years on count 1, two consecutive
two-year terms (one-third the middle term) on counts 2 and 3, and a consecutive eight-
month term (one-third the middle term) on count 4. The court awarded custody credits in
the amount of 588 days (512 actual and 76 conduct). The court ordered defendant to pay
1 Undesignated statutory references are to the Penal Code.
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a restitution fine of $10,000 (§ 1202.4, subd. (b)), with an additional $10,000 parole
revocation fine, which was stayed pending successful completion of parole (§ 1202.45).
The court imposed but suspended a conviction assessment of $30 per count (Gov. Code,
§ 70373), and a court operations assessment of $40 per count (§ 1465.8).
Defendant filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests 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 his right to file a
supplemental brief within 30 days from the date the opening brief was filed. More than
30 days have elapsed, and defendant has not filed a supplemental brief. Having
undertaken an examination of the entire record pursuant to Wende, we find no arguable
error that would result in a disposition more favorable to defendant. Accordingly, we
affirm the judgment.
DISPOSITION
The judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
DUARTE, J.
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