People v. D'Angelo CA6

Filed 8/29/23 P. v. D’Angelo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H050715
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 19CR01233)
v.
THOMAS MARK D’ANGELO,
Defendant and Appellant.
Thomas Mark D’Angelo appeals from a judgment entered after conviction by plea.
Appointed counsel for D’Angelo has filed a brief asking this court to review the record to
determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d
436 (Wende).) D’Angelo was advised of the right to file a supplemental brief. He has
submitted a letter brief to this court, which we have reviewed and considered.
Finding no arguable error that would result in a disposition more favorable to
D’Angelo, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND1
On January 2, 2019, D’Angelo’s girlfriend S.M. contacted the Santa Cruz County
Sheriff’s Office to report that her daughter Jane Doe, who is developmentally disabled,
1
These facts are taken from the preliminary hearing.
had had a sexual relationship with D’Angelo when Jane Doe was a minor. D’Angelo was
born in 1958. Jane Doe was born in 2000.
In interviews with law enforcement, Jane Doe disclosed sexual incidents that had
occurred between her and D’Angelo. For example, Jane Doe described an incident in
which D’Angelo put his penis in her rectum and continued to penetrate her after she told
him it hurt. Jane Doe stated she was 11, 12, or 17 when the incident occurred. D’Angelo
also showed Jane Doe pornography. Jane Doe said D’Angelo used a sex toy on her at his
residence. Jane Doe’s DNA was found on a sex toy that S.M. discovered in D’Angelo’s
possessions.
In a text message between Jane Doe and D’Angelo, in which Jane Doe asked
about the possibility of her not getting her period (i.e., being pregnant), D’Angelo replied
they only had had sex one time. In a pretext phone call with S.M., D’Angelo admitted
that he had sex with Jane Doe but he did not rape her and had used a condom. In other
pretext phone calls, D’Angelo denied that he had had sex with Jane Doe.
On November 19, 2019, the trial court conducted a preliminary hearing at which
Joshua McKim and Ryan Farotte of the Santa Cruz County Sheriff’s Office were the sole
witnesses. On November 20, 2019, the court held D’Angelo to answer.
D’Angelo was charged by information on November 26, 2019, with eight crimes
against Jane Doe: Rape of an incompetent person (Pen. Code, § 261, subd. (a)(1)2;
count 1), forcible rape (§ 261, subd. (a)(2); count 2), three counts of sexual battery by
restraint (§ 243.4, subd. (a); counts 3–5), forcible oral copulation (former § 288a, subd.
(c)(2)(a); count 6), distributing or showing pornography to a minor (§ 288.2, subd. (a)(2);
count 7), and sodomy by use of force where the minor victim is 14 or older (§ 286, subd.
(c)(2)(c); count 8). The information alleged the offenses occurred on or about or between
February 12, 2011, and December 30, 2018.
2
Unspecified statutory references are to the Penal Code.
2
In March 2022, the trial court issued a criminal protective order ordering
D’Angelo to have no contact with S.M. and her children and to stay at least 100 yards
away from a specific address (presumably where they were living).
On October 4, 2022, the parties appeared in court for a change-of-plea hearing.
D’Angelo’s trial attorney described the district attorney’s offer to D’Angelo as “a plea of
guilty or no contest to [c]ount 1, Penal Code [s]ection 261[, subd.] (a)(1), for a princip[al]
term[] [of] six years; [c]ount 3, Penal Code [s]ection 243.4, [one-]third of the mid term
for one year; [c]ount 7, Penal Code [s]ection 288.2, eight months [one-]third [of] the mid
[term] for a total term of seven years/eight months.” D’Angelo’s trial counsel did not
describe the plea agreement as containing any other terms and did not mention any
agreement about the disposition of D’Angelo’s personal property.
The trial court engaged in an oral plea colloquy with D’Angelo before taking his
plea. D’Angelo waived his rights to a jury trial, to cross-examine witnesses, to remain
silent, and to present a defense. As part of the plea colloquy with the court, D’Angelo
stated he had had enough time to speak to his attorney. D’Angelo confirmed he
understood that under the plea agreement he would receive a prison sentence of seven
years and eight months. The court asked D’Angelo whether he had been promised
anything other “what’s been stated here in court”; D’Angelo answered “[n]o.” The
parties stipulated to a factual basis for the plea. D’Angelo entered a plea of no contest to
count 1 (§ 261, subd. (a)(1)), count 3 (§ 243.4, subd. (a)), and count 7 (§ 288.2, subd.
(a)(2)). The court found that D’Angelo had knowingly and intelligently waived his rights
and his plea was freely and voluntarily given.
On December 22, 2022, the parties appeared before the trial court for sentencing.
The court sentenced D’Angelo on count 1 to the middle term of six years, on count 3 to a
consecutive term of one year (one-third of the middle term), and on count 7 to a
consecutive term of eight months (one-third of the middle term), for a total aggregate
sentence of seven years and eight months. The court awarded 12 days of custody credits
3
and ordered D’Angelo to register as a sex offender for the rest of his life pursuant to
section 290. The court dismissed the remaining counts. The court issued a criminal
protective order ordering D’Angelo to have no contact with S.M. and her children.
The trial court ordered a restitution fund fine of $6,300 (§ 1202.4, subd. (b)) and
imposed and suspended a $6,300 parole revocation fund fine (§ 1202.45). The court
imposed a court operation fee of $120 (§ 1465.8, subd. (a)(1)) and a $90 facility
assessments fee (Gov. Code, § 70373). The court ordered general restitution to the
California Victim Compensation Board, S.M., and Jane Doe.
The court informed D’Angelo that he had the right to appeal from the sentence and
“considering this is a plea, the grounds would have to go to something occurring after the
plea.” D’Angelo confirmed that he had “received [his] appeal rights.”
On January 17, 2023, D’Angelo timely filed a notice of appeal from “the sentence
or other matters occurring after the plea that do not affect the validity of the plea.”
D’Angelo did not request a certificate of probable cause.
D’Angelo submitted an eight-page letter brief to this court. In his letter, D’Angelo
describes (in his words) “six lesser-known autism traits that are more common in girls.”
Although his arguments on appeal are not entirely clear, D’Angelo appears to contend
that Jane Doe was not credible, S.M. “sway[ed] [Jane Doe] in her testimony,” and/or
S.M. allowed Jane Doe too much access to social media platforms, resulting in Jane
Doe’s “addictive sexual behavioral dependency.” D’Angelo asserts that the contents of
Jane Doe’s iPhone would have assisted his defense, and neither he nor his counsel were
given access to the phone. Similarly, S.M.’s laptop used by Jane Doe “was never
examined.” D’Angelo does not specify the nature of the exculpatory evidence he
believes would have been found on Jane Doe’s phone or S.M.’s laptop.
In addition, D’Angelo contends he never received his property that was in S.M.’s
control, the property is worth $75,000, he was prevented from getting it back because of
the criminal protective order, and “part of his plea deal” was that he would get his
4
property back. D’Angelo asserts he would have gone to trial if he had known his
property was not going to be restored to him. D’Angelo suggests his former, retained
counsel “collu[ded]” with the district attorney’s office but does not provide specifics,
other than noting the length of pretrial proceedings, that the district attorney did not
accept his counteroffer, and he has not received his property.
II. DISCUSSION
We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v.
Kelly (2006) 40 Cal.4th 106. Because he did not request or obtain a certificate of
probable cause, D’Angelo may not argue on appeal any issues that would affect the
validity of his plea, such as his assertions about pretrial delay and “collusion” between
his attorney and the district attorney’s office. (Cal. Rules of Court, rule 8.304(b)(1)–(3).)
To the extent that D’Angelo asserts a claim of ineffective assistance of counsel,
the record currently before this court does not establish such a violation. Such a claim is
more appropriately raised in a habeas corpus proceeding. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 267.) Further, the record does not reflect that the district
attorney’s office has violated any term of the plea bargain that was recited in court on the
record.
We have not found any arguable error that would result in a disposition more
favorable to D’Angelo. We therefore affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Grover, Acting P.J.
____________________________________
Bromberg, J.
H050715
People v. D’Angelo