People v. Bowers CA3 ( 2015 )

Filed 12/17/15 P. v. Bowers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Siskiyou)
----
THE PEOPLE, C078279
Plaintiff and Respondent, (Super. Ct. Nos. MC YK CR F
14-006, MC YK CR F 14-
v. 1148)
DAVID O'DELL BOWERS,
Defendant and Appellant.
Appointed counsel for defendant David O’Dell Bowers has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal. 3d 436.) We find no errors that would result in a more
favorable outcome to defendant and shall affirm the judgment.
BACKGROUND
Case No. 14-006: In January 2014, defendant pleaded guilty to possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted he had served
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three prior prison terms (Pen. Code, § 667.5, subd. (b)).1 In accordance with the plea, the
trial court sentenced defendant to a term of six years in prison, execution suspended, and
placed defendant on three years of probation.
Case No. 14-1148: The 14-year-old victim was volunteering at the race track
collecting tickets at the front gate. She was chewing gum and another person asked her
to blow a bubble. Defendant then grabbed her by the neck and pulled her head down
toward his genital area and said something like, “[O]h yea you can blow a bubble.” A
felony complaint charged defendant with committing a lewd act on a child of 14 who was
at least 10 years younger than himself. (§ 288, subd. (c)(1).) The complaint also alleged
he had served the same three prior prison terms as he had admitted in the previous case.
(§ 667.5, subd. (b).) Defendant pleaded no contest to committing a lewd act; although he
agreed to also admit one prior prison term as part of his plea, he did not actually admit
the prior as part of his plea, because he was never asked to do so by the trial court. Based
on the plea to committing the lewd act, the trial court found defendant had violated his
probation in case No. 14-006.
Prior to sentencing, defendant moved to withdraw his plea in case No. 14-1148
and to recall his sentence in case No. 14-006 and be resentenced as a misdemeanant
under Proposition 47. The trial court denied the motion to withdraw the plea.
Defendant’s prior conviction of a sex offense subject to registration barred him from
relief under Proposition 47; accordingly, the trial court also denied the motion to recall
and reduce defendant’s sentence in case No. 14-006.
The trial court lifted the stay on the previously suspended sentence of six years in
case No. 14-006, and imposed a consecutive eight-month term in case No. 14-1148, for a
total term of six years eight months. (The court did not impose sentence on the prison
1 Further undesignated statutory references are to the Penal Code.
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prior which defendant agreed to admit but was not asked to admit in case No. 14-1148,
because it had already been admitted and sentenced in case No. 14-006.) The court
awarded defendant 296 days of presentence custody credit and imposed various fees and
fines, in addition to ordering restitution to the multiple victims. Defendant did not obtain
a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. 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 of the opening brief. More than 30 days have
elapsed, and we have received no communication from defendant. We have undertaken
an examination of the entire record and find no arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Hoch, J.
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