People v. Sepulveda CA4/2

Filed 3/8/23 P. v. Sepulveda CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079278
v. (Super.Ct.No. FVI21001662)
GILBERT ALLAN SEPULVEDA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shannon L. Faherty
and Miriam Ivy Morton, Judges. Affirmed.
Savannah Montanez, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant, Gilbert Allan Sepulveda, pled guilty to two counts of
forcible lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (b)(1),
counts 7 & 8).1 The court sentenced defendant to 20 years of imprisonment.
After counsel from Appellate Defenders, Inc., filed a notice of appeal on behalf of
defendant, this court appointed counsel to represent him. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738, setting forth a statement of the case and identifying four potentially
arguable issues: (1) whether defendant knowingly, intelligently, and voluntarily pled
guilty; (2) whether the court sentenced defendant in accordance with the plea agreement;
(3) whether the trial court properly imposed the upper term on each count; and
(4) whether the trial court properly imposed a criminal protective order. We affirm.
I. PROCEDURAL BACKGROUND2
On April 27, 2021, officers were dispatched to a residence regarding a sex crime
with a child. Officers met with the victims’ mother, who explained that she had been
dating defendant for five years. Victim #1 told her mother that defendant sexually
abused her; her sister, victim #2; and her brother, victim #3.
Victim #1 reported that defendant forced her to orally copulate him approximately
20 times. Victim #2 did not feel comfortable speaking to officers or forensic
interviewers. Victim #3 reported that defendant made him perform oral copulation on
1 All further statutory references are to the Penal Code.
2 The parties stipulated that the police reports would provide the factual basis for
the plea.
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victims #1 and #2. Defendant also compelled victim #3 to perform oral copulation on
defendant. Victim #3 witnessed victims #2 and #3 perform oral sex on defendant several
times.
On June 11, 2021, the People charged defendant by felony complaint with six
counts of oral copulation with a child under 10 years of age (§ 288.7, subd. (b), counts 1-
6). On May 10, 2022, pursuant to a negotiated disposition, defendant pled guilty to two
added counts of lewd and lascivious acts with a person under 14 years of age (§ 288,
subd. (b)(1), counts 7 & 8).
Defendant signed and initialed the plea form reflecting he would be pleading
guilty to two counts of lewd and lascivious acts upon a child under the age of 14, for
which he would be sentenced to 20 years of imprisonment. Defendant initialed
provisions reflecting he understood his rights and waived those rights; that no one had
used any form of violence, threats, menace, duress, or undue influence in inducing him to
enter the plea; and that he had had sufficient time to consult with his attorney regarding
the plea. Defense counsel signed the plea form reflecting he had personally explained the
contents of the form to defendant, observed defendant sign the declaration, and concurred
in the plea.
In response to the court’s questions in open court, defendant indicated that the plea
form contained his signature and initials; he acknowledged he had reviewed the form
with his attorney prior to signing it; he understood everything on the form; he was not
under any threat in signing the form; and, as a result of his plea, he understood the court
would sentence him to 20 years of imprisonment. Defense counsel informed the court he
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had gone over the plea form with defendant, that he was satisfied defendant understood
everything on the form, and that he joined in defendant’s waivers.
The court found: “After directly examining the defendant, the Court finds that the
defendant has read and understands the defendant’s declaration and plea form; that the
defendant understands the nature of the charges to which he’s pleading, all consequences
and punishments for the offenses to which he is pleading, [and] each of his constitutional
rights. [¶] The Court further finds that the defendant has knowingly, intelligently, freely,
and voluntarily waived each of his constitutional rights. [¶] . . . [¶] Court further finds
the defendant has personally and orally entered this plea in open court; the plea was
entered freely, and voluntarily, knowingly, and intelligently by the defendant; and there is
a factual basis which the Court will accept and confirm.”
After taking the plea, defendant spoke to the court against defense counsel’s
advice: “I would like to say that there was evidence on my phone that I believe would
help me out with this. And at the beginning of my case two months in, I was told that the
phone was lost.” The court interrupted: “All right. I’m gonna have you stop because
here’s the problem, you’re either taking this—absolutely, knowingly, and willingly
taking this plea or you’re telling me that you’re not entering this plea willingly because
you think something else needs to be done on your case. Do you think something else
needs to be done on your case?” Defendant responded, “No.”
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In return for defendant’s plea, on the People’s motion, the court struck the
remaining counts. On June 10, 2022, the court sentenced defendant to 20 years of
imprisonment, consisting of two, consecutive terms of 10 years on each count. The court
issued a criminal protective order barring defendant from having contact with the victims.
Defendant’s notice of appeal challenges both the validity of his plea and the
sentence. Defendant requested a certificate of probable cause contending he signed the
plea agreement while under duress and his attorney “failed to perform due diligence as
required, presenting a so-called ‘deal’ to sign, one that no reasonable, well-informed
individual would ever consider nor agree to.” Defendant maintained he “was subject to
undue influence by way of my attorney and thus signed the above-referenced ‘deal’ plea
agreement. [¶] It is my strong conviction and belief that said plea agreement was
presented to, and signed by me as a result, a byproduct of ineffective assistance of
counsel. [¶] In consideration of the above, I hereby and herewith declare my plea
agreement unsigned, null and void ab initio.” The court granted defendant’s request for a
certificate of probable cause.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
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III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
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