People v. Turner CA3 ( 2023 )


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  • Filed 10/17/23 P. v. Turner 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
    (Butte)
    ----
    THE PEOPLE,                                                                                  C097756
    Plaintiff and Respondent,                                    (Super. Ct. No. 21CF01072)
    v.
    KIANTE DOMINIQUE TURNER,
    Defendant and Appellant.
    Appointed counsel for defendant Kiante Dominique Turner filed an opening brief
    that sets forth the facts of the case and asks this court to review the record and determine
    whether there are any arguable issues on appeal. (People v. Wende (1979) 
    25 Cal.3d 436
    .) After independently examining the record, we shall affirm.
    1
    BACKGROUND
    Defendant pleaded no contest to two counts of continuous sexual abuse of minors,
    J.F. and A.F. (Pen. Code, § 288.5; counts 2 & 3),1 in exchange for dismissal with a
    waiver (pursuant to People v. Harvey (1979) 
    25 Cal.3d 754
    ) of one count of oral
    copulation or sexual penetration of J.F., a child under 10 years of age (§ 288.7, subd. (b);
    count 1), and dismissal of the special allegations that he engaged in substantial sexual
    conduct and committed the crimes on more than one victim during the same course of
    conduct (§ 1203.066, subd. (a)(7) & (8)). (People v. Turner (Aug. 26, 2022, C094937)
    [nonpub. opn.] (Turner I).)2 On the plea form, defendant initialed the box regarding a
    Harvey waiver that stated: “ ‘I stipulate the sentencing judge may consider my prior
    criminal history and the entire factual background of the case, including any unfiled,
    dismissed or stricken charges or allegations or cases when granting probation, ordering
    restitution, or imposing sentence.’ ” (Turner I, supra, C094937.)
    Defendant stipulated to the probation report as the factual basis for his plea.
    (Turner I, supra, C094937.) The probation report recounted defendant’s statement to law
    enforcement in which he admitted to engaging in numerous sexual acts with J.F. during
    the time she was between the ages of six to 15 years old, and numerous sexual acts with
    A.F., which began when she was approximately nine years old. (Ibid.) Defendant also
    provided a statement to probation that was contained in the report wherein he admitted
    committing the offenses detailed in the police report and confirmed that his abuse of the
    children started when they were six and nine years old, respectively. (Ibid.) He also
    regretted taking advantage of his position as the victims’ stepfather and explained that he
    1 Further undesignated statutory references are to the Penal Code.
    2 We consider defendant’s request to take judicial notice of the record of defendant’s
    direct appeal in Turner I as a request to incorporate the record in case No. C094937 and
    grant the request.
    2
    felt the victims may have felt trapped because he had such control over their lives at the
    time. (Ibid.)
    Although the original probation report recommended the middle term sentences,
    the trial court sentenced defendant to the upper term of 16 years for each count. (Turner
    I, supra, C094937.) Defendant appealed, and this court affirmed his convictions but
    remanded the case for resentencing in light of recent amendments to section 1170, which
    limited a trial court’s discretion to impose upper term sentences (Senate Bill No. 567
    (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731)). (Turner I, supra, C094937.) While this
    court noted that defendant had effectively stipulated to some of the relevant facts
    necessary to impose an upper term under the new law, the trial court had also engaged in
    its own factfinding regarding several factors in aggravation that were not stipulated to by
    defendant, proven through certified records of conviction, or proven to a jury beyond a
    reasonable doubt. (Ibid.) Because we could not conclude that the court would have
    selected an upper term sentence based only on permissible factors, we remanded for
    resentencing. (Ibid.)
    In January 2023, following issuance of the remittitur, the trial court resentenced
    defendant. At the hearing, the prosecutor introduced certified records of conviction in
    three prior criminal matters, and the court also took judicial notice of the court files in
    those cases.
    After considering, among other things, defendant’s plea form and Harvey waiver,
    the original and supplemental probation reports, the original and supplemental statements
    in aggravation, and letters from the victims and defendant, as well as the certified records
    of defendant’s prior convictions, the trial court denied defendant’s request for middle
    term sentences and reimposed full, consecutive 16-year upper terms for each count under
    section 667.6, subdivision (d). In doing so, the court cited defendant’s certified prior
    convictions and several of the aggravating factors to which he had stipulated given the
    Harvey waiver to support the upper term. The court considered defendant’s youth
    3
    pursuant to section 1170, subdivision (b)(6) because he started the sexual abuse at
    approximately age 22. But the court found that defendant’s youthfulness did not
    contribute to the offenses because defendant continued to abuse the girls until he was 31
    years old, and that imposing a lower term sentence would be contrary to the interests of
    justice.
    Without objection, the trial court reimposed the same amount of victim restitution,
    ordered defendant to pay mandatory minimum fees and fines, and awarded defendant
    pre- and post-sentencing credits. Defendant timely appealed without a certificate of
    probable cause.
    DISCUSSION
    We appointed counsel to represent defendant on appeal. Counsel filed an opening
    brief setting forth the facts of the case and requesting that this court review the record to
    determine whether there are any arguable issues on appeal. (People v. Wende, supra,
    
    25 Cal.3d 436
    .) Defendant was advised of his right to file a supplemental brief within 30
    days of the date of filing of the opening brief. More than 30 days elapsed, and we
    received no communication from defendant.
    Having examined the record, we find no arguable error that would result in a
    disposition more favorable to defendant.
    4
    DISPOSITION
    The judgment is affirmed.
    /s/
    Duarte, J.
    We concur:
    /s/
    Hull, Acting P. J.
    /s/
    Keithley, J.*
    *Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    5
    

Document Info

Docket Number: C097756

Filed Date: 10/17/2023

Precedential Status: Non-Precedential

Modified Date: 10/17/2023