People v. Mejia CA6 ( 2021 )

Filed 7/9/21 P. v. Mejia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H048793
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 18CR07842)
v.
CIRILO MEJIA,
Defendant and Appellant.
Defendant Cirilo Mejia pleaded no contest to three counts of committing a lewd
act on a child under age 14 (Pen. Code, § 288, subd. (a)).1 The trial court committed
defendant to state prison for a stipulated term of 12 years, and gave defendant 764 days
of actual custody credit and 114 days of conduct credit (§§ 2900.5, 2933.1) for a total of
878 days of presentence custody credit. Defendant timely filed a notice of appeal
challenging only his sentence. Appellate counsel has filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 on behalf of defendant. Defendant has filed a letter.
We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2018, defendant was living in a room in the same residence as
the victim, who was 11 years old. That night, the victim’s mother reported to police that
she could not find her daughter, who has special needs because of a diagnosis of
microcephaly. The victim’s mother looked and found the bathroom door was locked.
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All further references are to the Penal Code unless otherwise indicated.
The victim’s mother called out for her daughter and heard “ ‘Ma’ ” in response. She
directed her daughter to unlock the door, and she did so. The victim appeared frightened.
The victim’s mother discovered defendant behind the shower curtain with his pants
partway down and asked what he had done. Defendant responded that he did not do
anything.
The victim’s mother later placed a pretext phone call to defendant during which
defendant stated, “ ‘I did nothing. I was going to be with her, but, no. I was going to
rape her, but, no. Then you knocked on the door and I left. I hid because I believe[d]
you were going to hit or kill me. That’s why.’ ” On December 20, 2018, defendant was
arrested. In an interview with police, he admitted to consuming seven or eight beers and
one or two drinks of whiskey on the night of the incident. He went to the bathroom, and
the victim was outside. He took the victim into the bathroom and locked the door.
Defendant lowered his pants and the victim’s pants and underwear and began touching
himself. While holding the victim’s buttocks, defendant tried to penetrate the victim but
was unable to do so. As he tried again to penetrate the victim, the victim’s mother
knocked on the door and he hid behind the shower curtain.
Defendant was charged with kidnapping for the purpose of rape (count 1; § 209,
subd. (b)(1)), attempted rape of a person incapable of giving consent because of a mental
disorder or developmental or physical disability (counts 2-3; §§ 261, subd. (a)(1), 664),
committing a forcible lewd act on a child under age 14 (counts 4-5; § 288, subd. (b)(1)),
and committing a lewd act on a child under age 14 (counts 6-8; § 288, subd. (a)).
At the change of plea hearing, the trial court stated that defendant would be
sentenced to a 12-year prison term pursuant to a negotiated agreement. The trial court
advised defendant of the immigration consequences of his plea. Defendant was also
advised of his rights to a jury trial, to cross-examine witnesses, to testify, to present a
defense, and to remain silent. Defendant, who was assisted by a Mixteco language
interpreter, stated that he understood his rights and waived them. Both the prosecutor and
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defense counsel stipulated to a factual basis for the pleas. Defendant agreed that he had
enough time to speak with his attorney, that he was not threatened or promised anything
other than what was stated in court, and that he was not under the influence of anything
that interfered with his ability to make well-reasoned decisions. Defendant pleaded no
contest to counts six through eight. On January 21, 2021, the trial court sentenced
defendant as described above.
Appointed appellate counsel has filed an opening brief that states the case and the
facts but raises no issues. Defendant was notified of his right to submit written argument
on his own behalf, and he submitted a letter in which he raises several concerns.
Defendant states that the “two lawyers” who worked on his case never
investigated his case, “they only took the words that the detective asked me when they
arrested me . . . .” Defendant states that he told his lawyer he did not understand the
questions that the detective asked him “because I speak another dialect which is Mixteco
and then they found me an interpreter in Mixteco, but they never asked anyone to
investigate my case . . . .” Defendant also requests that this court review his time in
county jail to see if “they took away my credits, because I know that it counts double for
all the time I am in the county.”
Defendant is precluded from challenging the validity of his plea on appeal because
he failed to timely obtain a certificate of probable cause. “A guilty [or no contest] plea
amounts to an admission of every element of the crime and is the equivalent of a
conviction.” (People v. Ward (1967) 66 Cal.2d 571, 574; People v. Mendez (1999) 19
Cal.4th 1084, 1094.) “No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere . . . except where both of the
following are met: [¶] (a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial
court has executed and filed a certificate of probable cause for such appeal with the
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county clerk.” (§ 1237.5, emphasis added.) This requirement applies to defendant’s
suggestion that trial counsel was ineffective. (In re Chavez (2003) 30 Cal.4th 643, 651.)
Thus, defendant’s claims about the validity of the plea are not cognizable in this appeal.
As for defendant’s sentencing claim, which is cognizable in this appeal, we
conclude he is not entitled to additional custody credit. Defendant was arrested on
December 20, 2018 and sentenced on January 21, 2021, which means defendant was in
actual custody for 764 days. Under section 2933.1, subdivision (c), “the maximum credit
that may be earned against a period of confinement in . . . a county jail . . . following
arrest and prior to placement in the custody of the Director of Corrections, shall not
exceed 15 percent of the actual period of confinement for any person” convicted of a
violent felony listed in section 667.5, subdivision (c). (§ 2933.1, subds. (c), (a).)
Committing a lewd act on a child is a violent felony. (§ 667.5, subd. (c)(6).) Thus,
defendant was entitled to no more than 15 percent conduct credit, which based on
764 days of actual custody resulted in 114 days of conduct credit, for a total of 878 days
of presentence custody credit.
Having examined the entire record, we conclude that there are no arguable issues
on appeal.
II. DISPOSITION
The judgment is affirmed.
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_________________________________
ELIA, ACTING P.J.
WE CONCUR:
_______________________________
GROVER, J.
_______________________________
DANNER, J.
People v. Mejia
H048793