People v. Ramos CA6 ( 2014 )

Filed 8/28/14 P. v. Ramos CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040452
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1122531)
v.
MOISES RAMOS,
Defendant and Appellant.
Pursuant to a negotiated disposition, Moises Ramos (defendant) pleaded no
contest to two counts of committing a lewd or lascivious act on a child under the age of
14 by force, violence, duress, menace or fear (Pen. Code, § 288, subd. (b)(1), counts one
and five); and two counts of committing a lewd or lascivious act on a child under the age
of 14. (Id., § 288, subd. (a), counts eight and nine.) In exchange for his no contest pleas,
defendant was promised a prison term of 26 years, the dismissal of six more counts, and
that the court would strike a multiple victim allegation at the time of sentencing.
Subsequently, on November 22, 2013, the court sentenced defendant pursuant to
the terms of the negotiated disposition. The court imposed the upper term of eight years
on count eight, a consecutive two-year term on count nine (one third the midterm), a
consecutive eight-year term on count one and a consecutive eight-year term on count
five. The court imposed various fines and fees, and awarded defendant 691 days of
custody credits and 103 days of conduct credits calculated pursuant to Penal Code section
2933.1. The court dismissed the remaining charges and struck the multiple victim
allegations.
Defendant filed an amended notice of appeal on December 31, 2013, in which he
appealed from the judgment on the ground that the court had committed sentencing error.
Defendant’s appointed counsel has filed an opening brief in which no issues are
raised. Counsel asks this court to conduct an independent review of the record as
required by People v. Wende (1979) 25 Cal. 3d 436 (Wende). Counsel has declared that
defendant was notified that no issues were being raised by counsel on appeal; that an
independent review under Wende was being requested; and that defendant was notified
that he could file a supplemental brief with this court.
On March 27, 2014, by letter, we notified defendant of his right to submit written
argument on his own behalf within 30 days. That time has passed and we have not
received a response from defendant.
Pursuant to Wende, supra, 25 Cal. 3d 436, we have reviewed the entire record and
have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly
(2006) 40 Cal. 4th 106, we provide “a brief description of the facts and procedural history
of the case, the crimes of which the defendant was convicted, and the punishment
imposed.” (Id. at p. 110.) Further, we include information about aspects of the trial court
proceedings that might become relevant in future proceedings. (Id. at p. 112.)
Facts and Proceedings Below1
On December 28, 2011, the Santa Clara County District Attorney filed a complaint
in which defendant was charged with seven counts of forcible lewd conduct with a child
(Pen. Code, § 288, subd. (b)(1), counts 1-7) and three counts of nonforcible lewd
conduct. (Id., § 288, subd. (a), counts 8-10.) As to each count there was an allegation
that defendant committed the offenses against multiple victims. (Id., § 667.61, subds. (b)
& (e).) On July 10, 2012, defendant entered not guilty pleas to all charges.
Subsequently, before defendant entered his no contest pleas, he executed an
1
The facts are taken from the probation officer’s report.
2
“ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM,” in which he was advised
of and waived his constitutional rights to a jury trial, to present a defense, and to confront
witnesses, and his right against self-incrimination. Defendant waived those rights.2
Defendant was advised that he would have to register as a sex offender, was advised of
the immigration consequences of his plea, and was advised that his convictions on counts
one, five, eight, and nine each qualified as a strike under the Three Strikes Law. (Id., §§
667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
As to the facts underlying defendant’s convictions, between 1998 and 2004
defendant committed lewd acts involving four different children who were under the age
of 14 years. Count one occurred between 2000 and 2004. Defendant called the victim
into a bedroom and forced him to remove his clothing. Defendant pulled down his own
underwear and pants and then touched the victim’s anus, buttocks and penis with his
hands. Defendant tried to penetrate the victim’s anus with his penis. Count five occurred
between 1998 and 2003. Defendant removed the victim’s pants, forced the victim to sit
on his lap, and rubbed his penis against her vagina. Count eight occurred between 1998
and 2000. Defendant kissed the victim, who was six years old at the time, on the lips and
touched her breasts and vagina. Count nine occurred between 1998 and 2000. Defendant
removed the victim’s clothing, as well as his own clothing, and rubbed his penis against
her vagina.
Upon our independent review of the record, we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal. Defendant received the
sentence he was promised; and the record indicates that he was informed of and
2
Defendant was advised of his right to a preliminary examination; defendant
waived that right. Defendant’s initials appear in the applicable boxes and his signature is
on the form. Before defendant entered his pleas, the court confirmed that it was
defendant’s initials and signature that were on the form. The parties stipulated that there
was a factual basis for the pleas based on the police reports.
3
knowingly and intelligently waived his constitutional rights before he entered his pleas.
Further, the fines and fees imposed are supported by the law and the facts.
Disposition
The judgment is affirmed.
4
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
PREMO, Acting P. J.
_______________________________
MIHARA, J.