Filed 5/26/16 P. v. Schmidt CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRY SCHMIDT,

Defendant and Appellant. H042432 (Santa Clara County Super. Ct. No. C1482559)

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 ad vised 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 ar e 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.2 B ACKGROUND

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 t o

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, h e had been living in Milpitas for about a year.

On May 5, 2014, the district attorney’s office filed a complaint charging defend ant

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

faili ng 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.3

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 tw o prior strike offenses stemmed from criminal conduct that

occurred more than 20 years ago, in 1993. Addit ionally, the conduct underlying the

convictions did not involve allegations that defendant himself to uched or assaulted the

victims. The People oppo sed 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 o ne 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 hi s case. The trial court denied both petitions,

because defendant was represented by counsel and had filed the habeas petitions in

pro pria per sona

. On May 7, 2015, the court held a hearing on defendant’s Marsden motion.

Defendant withdrew his Marsden m otion 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, 2015.4

Defendant then moved to withdr aw his plea , stating that he believed the court had misled

him into thinking that he w ould 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.

Afterward s, 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, d efendant

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

cour t 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.

D ISPOSITION

The judgment is affirmed.Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Schmidt
H042432