People v. Schmidt CA6

Filed 5/26/16 P. v. Schmidt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H042432
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1482559)
v.
TERRY SCHMIDT,
Defendant and Appellant.
Defendant Terry Schmidt pleaded no contest to a count of failing to register as a
sex offender (Pen. Code, § 290, subd. (b)).1 He was sentenced to 32 months in prison.
On appeal, his counsel has filed an opening brief in which no issues are raised and asks
this court for an independent review of the record as required by People v. Wende (1979)
25 Cal. 3d 436. Counsel has declared that defendant was notified that an independent
review under Wende was being requested. We advised defendant of his right to submit
written argument on his own behalf within 30 days. Thirty days have elapsed, and
defendant has not submitted a letter brief.
Pursuant to Wende, we have reviewed the entire record and have concluded that
there are no arguable issues. We will 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.” (People v. Kelly (2006) 40 Cal. 4th 106, 110.)
1
Unspecified statutory references are to the Penal Code.
BACKGROUND
On May 2, 2014, officers responded to a report of a disturbance at the Best Value
Inn in Milpitas, California.2 Upon arriving at the hotel, officers encountered defendant
and conducted a records check. Defendant’s records reflected that he was required to
register as a sex offender under section 290, subdivision (a). Defendant initially told
officers that he had been living out of state, had returned to California only one year
prior, and had previously registered in Hayward. Later, when interviewed by officers at
jail, defendant admitted that he had lied to the arresting officers about registering in
Hayward. By that time, he had been living in Milpitas for about a year.
On May 5, 2014, the district attorney’s office filed a complaint charging defendant
with a count of failing to register as a sex offender (§ 290, subd. (b)). It was further
alleged that defendant had two prior serious or violent felony convictions (prior strikes)
for lewd or lascivious conduct with a minor under the age of 14 (§ 288, subd. (a)).3
On January 22, 2015, defendant filed a waiver of his rights and indicated that he
would be pleading no contest to a count of failing to register as a sex offender (§ 290,
subd. (b)). The waiver of rights form indicated that he acknowledged that he could face a
maximum sentence of 25 years to life. During the change of plea hearing, the court gave
an indicated sentence of 32 months. Defendant pleaded no contest to the charge of
failing to register and admitted he had two strike priors.
2
The factual circumstances of the offense are taken from the probation officer’s
report, which is based on a report made by the Milpitas Police Department.
3
Defendant’s prior strikes occurred more than 20 years ago in 1993. Defendant
and his codefendant had one victim (between the age of nine to 11 years old), cut the
codefendant’s clothing off and rub baby oil over the codefendant’s body, including her
breasts and vaginal area. This happened approximately three times. The second victim,
another child, directed the first victim into the codefendant’s bedroom and told the first
victim that defendant would strike him if he did not do as he was told.
2
On April 9, 2015, defendant filed a Romero motion,4 asking the court to exercise
its discretion to strike one of his prior strike convictions under section 1385. Defendant’s
motion noted that the two prior strike offenses stemmed from criminal conduct that
occurred more than 20 years ago, in 1993. Additionally, the conduct underlying the
convictions did not involve allegations that defendant himself touched or assaulted the
victims. The People opposed the motion, arguing that defendant’s entire criminal history
included seven felony convictions and four misdemeanor convictions in California,
Arkansas, and Tennessee.
On April 14, 2015, defendant filed a petition for a writ of habeas corpus with the
trial court seeking to have his 1993 convictions vacated. The trial court denied the
petition, because he was not presently in custody for the challenged offenses.
On May 1, 2015, the trial court partially granted defendant’s Romero motion and
struck one of his prior strike convictions. Defendant made an oral Marsden motion,
which the court agreed to hear at a later date.5
Defendant filed another petition for writ of habeas corpus on May 7, 2015. The
petition alleged that the county was unconstitutionally depriving him of the right to bail.
The following day, defendant filed another petition for writ of habeas corpus seeking to
disqualify the judge presiding over his case. The trial court denied both petitions,
because defendant was represented by counsel and had filed the habeas petitions in
propria persona.
On May 7, 2015, the court held a hearing on defendant’s Marsden motion.
Defendant withdrew his Marsden motion and moved to disqualify the trial court under
Code of Civil Procedure section 170.6. The trial court denied the motion as untimely.
4
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
5
People v. Marsden (1970) 2 Cal. 3d 118. Earlier, defendant had filed another
Marsden motion on March 20, 2015.
3
Defendant then moved to withdraw his plea, stating that he believed the court had misled
him into thinking that he would get a sentence of less than 32 months. The court denied
defendant’s motion.
The trial court held a sentencing hearing on May 15, 2015. Before pronouncing
defendant’s sentence, the trial court denied defendant’s numerous Marsden motions.
Afterwards, defendant made a motion to disqualify the trial court judge under Code of
Civil Procedure section 170.1, which the court denied. Thereafter, the court sentenced
defendant to the indicated term of 32 months in prison. The trial court awarded him
379 days of actual custody credit and 378 days of conduct credit. Additionally, defendant
was ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)), $40 court security fee
(§ 1465.8), $30 criminal conviction assessment (Gov. Code, § 70373), and a $129.75
criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2). An
additional $300 restitution fine was imposed and suspended under section 1202.45.
Defendant timely appealed and requested a certificate of probable cause. The trial
court denied his request for a certificate of probable cause on June 8, 2015.
We have conducted an independent review of the record pursuant to People v.
Wende, supra, 25 Cal. 3d 436 and People v. Kelly, supra, 40 Cal. 4th 106. We conclude
there are no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
4
Premo, J.
WE CONCUR:
Rushing, P.J.
Márquez, J.
People v. Schmidt
H042432