The People v. McDonald CA5 ( 2013 )

Filed 9/9/13 P. v. McDonald CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F065081
Plaintiff and Respondent,
(Kings Super. Ct. No. 12CM0058)
v.
DONTE DARNELL MCDONALD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Donte Darnell McDonald pleaded guilty to failing to provide
true registration information (Pen. Code,1 § 290.015, subd. (a)), and admitted one prior
* Before Wiseman, Acting P.J., Gomes, J. and Peña, J.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
strike conviction (§ 667, subds. (b)-(i)). He was sentenced to a second strike term of 32
months. On appeal, his appellate counsel has filed a brief which summarizes the facts,
with citations to the record, raises no issues, and asks this court to independently review
the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS2
In 2000, defendant was convicted of assault with the intent to commit rape
(§ 220); and false imprisonment (§ 236). He was sentenced to four years in prison, and
ordered to register as a sex offender pursuant to section 290.
In 2002, defendant was convicted of unlawful sexual intercourse with a minor,
who was more than three years younger than defendant, and sentenced to 32 months in
prison (§ 261.5, subd. (c)).
On February 9, 2011, defendant provided two addresses to the Merced County
Probation Department: one in Hanford, and one in Dos Palos. On February 24, 2011, he
reported to the probation department that he had been at the Dos Palos address since
February 21, 2011. “According to the documents, the defendant failed to register as a sex
offender with the Hanford Police Department between February 9, 2011 and February 21,
2011 while residing” at the Hanford address.
The charges
On February 6, 2012, an information was filed in the Superior Court of Kings
County charging defendant with counts I, II, and IV, failure to timely update his
registration (§ 290.013, subd. (a)); and count III, failure to provide true registration
information (§ 290.015, subd. (a)), with one prior strike conviction (§ 667, subds. (b)-(i)),
and two prior prison term enhancements (§ 667.5, subd. (b)).
2 Given defendant’s no contest pleas, the facts are taken from the probation report.
2.
Defendant’s plea
On March 16, 2012, defendant pleaded guilty to count III and admitted the prior
strike conviction. He entered the plea with the understanding that the remaining charges
and allegations would be dismissed, and he would be allowed to argue for dismissal of
the prior strike conviction.
Sentencing
On May 1, 2012, the court denied defendant’s request to dismiss the prior strike
conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The
court also denied defendant’s request to reduce the offense to a misdemeanor (§ 17, subd.
(b)). The court imposed the lower term of 16 months, doubled to 32 months (two years
eight months) as the second strike term. Defendant received 591 days of presentence
credit. He was ordered to pay a $720 restitution fine (§ 1202.4, subd. (b)); a $40 court
security fee; and a $30 criminal conviction assessment.
On June 7, 2012, defendant filed a timely notice of appeal. He did not request or
receive a certificate of probable cause.
DISCUSSION
As noted ante, defendant’s appellate counsel has filed a Wende brief with this
court. The brief also includes the declaration of appellate counsel indicating that
defendant was advised he could file his own brief with this court. By letter on September
17, 2012, we invited defendant to submit additional briefing. To date, he has not done so.
Defendant has failed to obtain a certificate of probable cause and therefore cannot
challenge the underlying validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68,
77-79.)
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
3.