1 Filed 10/9/13 P. v. Ruiz CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. MANUEL ANTHONY RUIZ, Defendant and Appellant. E058318 (Super.Ct.No. RIF1203302) OPINION

APPEAL from the Superior Court of Rive rside County. Charles J. Koosed, Judge. Affirmed. Marilee Marshall, under appointment by th e Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Pursuant to a plea bargain, defendant and appellant Manuel Anthony Ruiz pleaded guilty to two counts of viola ting Penal Code section 288, subdivision (b)(1) (lewd and lascivious act on a child under age 14, by force, violence, duress, menace or fear), and2 two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious act on a child under age 14). He received an agreed sentence of 19 years. Defendant obtained a certif icate of probable cause and filed a notice of appeal. We affirm.
FACTS AND PROCED URAL HISTORY At the change-of-plea heari ng, the parties stipulated that the police report would provide a factual basis for the pleas. Local sheriffs received a re port of possible child molestation from the victim’s mother. The mo ther related that her daughter, nine-yearold Jane Doe, had attended a sleepover week end at a friend’s home. Defendant and his wife were the responsible adults at the hom e where Jane Doe was staying. While Jane Doe was asleep, defendant came into the room and awakened her. Defendant took Jane Doe onto his lap and began rubbing her between her legs. He asked her, “[d]oes it feel good?” Jane Doe attempted to close her le gs, but defendant continued to push them apart. Defendant also put his hand inside Jane Doe’s underwear and touched her vaginal area underneath her clothes. Jane Doe also reported to her mother th at defendant had taken his two children and Jane Doe to the movies the same weekend. During the show, Ja ne Doe accidentally spilled some candies on her lap; some fell onto the seat between her legs. Defendant helped retrieve the candies, us ing the opportunity to touch Jane Doe’s vagina. When Jane Doe told defendant there were no more candies to clean up, he continued to touch her near her vagina, with what Jane Doe de scribed as a “scratching” motion.3 In the course of the investigation, offi cers arranged for the victim’s mother to make some monitored “pretext” telephone calls to defendant. During the conversations, defendant admitted touching the victim inside her underwear. He agreed to meet with the victim’s mother at her house. When defendant arrived at the house, he was met by law enforcement officers; the officers told defendant that he was not under a rrest, but they wished to talk to him about the incidents with Jane Doe. Defendant acco mpanied officers in an unmarked squad car. Defendant was not handcuffed. At the station, defendant wa s again advised that he was not under arrest, that he did not have to an swer any questions, and that he was free to leave at any time. Defendant indicated that he understood, and thereafter he participated in the interview. During the interview, defe ndant admitted molesting Ja ne Doe when she stayed overnight at his house. He recalled placing his hand inside her underwear and rubbing her vagina, though he denied penetrating her. He also desc ribed taking the children to the movie theater, when Jane Doe spilled candy on her lap. He helped pick up the spilled candy, but denied touching Jane Doe’s vagina while cleaning up the ca ndy. At the end of the interview, defendant wrote Jane Doe a letter of apology. 1 After this, when the investigating officer returned to the interview room, he info rmed defendant that he was

1 The letter made no specific admissions as to any particular c onduct. Defendant wrote that the victim was “a very special gi rl,” and that she had done nothing wrong. “Sometimes grown[-]ups make mistakes and I ma de the biggest one that hurt you . . . .” Defendant stated, “I don’t know what I was thinking to do something so stupid.” He asked the victim to “forgive me for my actions.”4 under arrest, and read the Miranda warnings. In a further in terview, defendant admitted touching Jane Doe both over and under her underwear. As a result of these events, on June 28, 2012, defendant was in itially charged with one count of violation of Pena l Code section 288, subdivision (a) (lewd and lascivious act on a child under age 14), and one count of violation of Penal Code section 288.7, subdivision (b) (sexual penetration by a pe rson over age 18, of a child age 10 or younger). The charge in coun t 2 carried a term of 15 year s to life if defendant were convicted. (Pen. Code, § 288.7, subd. (b).) At a hearing on February 8, 2013, the parties advised the court that they had reached a negotiated disposition. Because the offense in count 2 carried a life term, the parties had agreed to a dispos ition that would result in a dete rminate term. Accordingly, the complaint was amended orally to add four additional counts: counts 3 and 4 alleged violation of Penal Code section 288, subdivis ion (b)(1). Counts 5 a nd 6 alleged violation of Penal Code section 288, subdivision (a). Defendant’s maximum exposure in pleading guilty to the new charges was 24 years, but the parties negotiated a sent ence of 19 years. At first, defendant said that he did not realize that all four counts would be treated as strikes. However, he ultimately understood that , if he committed a new strike offense, he would be treated as a third striker, and that understanding did not change his position on the guilty plea. Defendant had initialed and signed a plea agreement form memorializing the terms of the bargain. Defendant initialed the rights advisements, as well as advisements of the consequences of his plea. Defendant also initialed provisions to the effect that all5 promises made to him were written on the form, or stated orally in open court, and that he had not been threatened or pr essured to plead guilty. Defe ndant also expressly waived his right to appeal. The plea form expressl y recited that defendant had been advised he was pleading to four strike offenses. Defendant was sentenced in accordance w ith the plea agreement to a determinate term of 19 years on counts 3 through 6. Counts 1 and 2 were dismissed in the interest of justice. About a month after the plea and senten cing, and notwithstanding his waiver of appeal, defendant filed a notice of appeal in the trial court. He averred that he had pleaded guilty “under extreme duress, with my attorney insisting that I would otherwise receive a ‘[l]ife’ term of impr isonment.” Defendant also st ated that, “[m]y attorney was rude to me to the point of obvious bias and partiality. My attorney originally informed me that she was seeking a 1 year [ sic ] county jail commitment w/ 3 yr. [ sic ] probation. (Obvious incompetence as I ende d up with 19 years in extrem e contrast.) Evidence in the form of a [p]sychiatric [e]valuation, very ‘fa vorable’ to me which could have mitigated my sentence was not presented.” Defendant ack nowledged that the appeal was an attack on the validity of the plea and requested a ce rtificate of probable cause, which the trial court granted. Defendant described the possible issues on appeal as: “1) Ineffective assistance of [c]ounsel/[u]nethical behavior. “2) Mitigating factors, i.e., ‘favorable ’ psychiatric evaluation was not introduced at sentencing. “3) Cruel and unusual punishment [r]e: [l]ength of [s]entence.”6 ANALYSIS Pursuant to request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 13 96, 18 L.Ed.2d 493], setting forth a statement of the case and a summary of the fa cts, but making no substantive arguments. Counsel has identified some potential issues for appeal (i.e., whether the factual basis stipulated in the police report supports convi ction of forcible molestation, whether the facts support the charging and conviction of f our separate counts—and, if not, whether counsel was incompetent in agreeing to this settlement—a nd whether the issuance of a certificate of probable cause negates defenda nt’s waiver of his appeal rights), and requested this court to undertake a review of the entire record. Defendant has been offered the opportunity to file a personal supplemental brief, which he has not done. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the record in its entirety and find no arguable i ssues. As to the suggestion that the stipulated facts in the police report were insufficient to suppo rt the charges, we disagree. The victim, Jane Doe, described in cidents that had taken place on two different dates, once during an overnight “sleepover,” a nd once at a movie theater. On both dates, defendant touched the victim both over and under her underwear. On one occasion, defendant persisted in pushing the victim’s legs apart when she tried to resist him by closing her legs. On the ot her, defendant continued pushi ng his hand into the victim’s vaginal area, using both “scrat ching” and in-and-out motions, after she told him there was no more candy to clean up. Th e evidence was suffici ent to support four separate counts,7 and two counts of forcible lewd and lasciv ious acts. There was consequently no ineffective assistance of counsel in negotiating the agreed settlement. Notwithstanding defendant’s waiver of hi s appeal rights, his claim on appeal is that he accepted the plea bargain under duress; the acceptance of th e bargain under duress naturally calls into question the basis of the bargain itself, and all of its terms, including the waiver of defendant’ s appeal rights. (See People v. Mitchell (2011) 197 Cal.App.4th 1009, 1015 [To be enfo rceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary.]; see also People v. Panizzon (1996) 13 Cal.4th 68, 80 [The voluntariness of a waiver is a questi on of law which appellate courts review de novo.].) Defendant’s notice of appeal, as we have already noted, set forth several possible grounds. Defendant’s claim of duress is w ithout merit. The charges defendant faced included an offense carrying an indeterminate te rm of 15 years to life—the “life” count to which defendant referred. That his attorney told him of the risk of exposure to an indeterminate life sentence, if he went to tr ial, as opposed to the negotiated determinate term of 19 years (out of a maximum 24), di d not constitute undue “duress.” That a defendant enters a plea “reluctantly” or “unw illingly,” subject to the “persuasions” of counsel, while being correctly advised of th e consequences of not entering a plea, does not mean that the plea was invo luntary or unknowing. (See People v. Urfer (1979) 94 Cal.App.3d 887, 892.) Defendant’s present claim also contradicts his plea form, on which he had initialed the statement that he had not been coerced or pressured into entering the plea.8 The claims of ineffective assistance of counsel are also without merit. Defendant was referred for a psychological evaluation purs uant to Penal Code section 288.1, to determine his eligibility to have his sentence suspended. 2 As defendant notes, the report was favorable, in the sense that the evaluato r opined that defendant was not a pedophile, he was not a danger to the co mmunity or to the victim, and he should be considered eligible for probation under the statute. However, counsel’s in ability to negotiate a minimal or probationary term does not dem onstrate either that counsel’s performance was deficient, or that defenda nt was prejudiced thereby. ( Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052 , 2064, 2068, 80 L.Ed. 2d 674].) The filed charges were extremely serious, and counsel wa s able to bargain for a determinate term on new charges of reduced severity. The fa ilure to present the psychological evaluation at sentencing was of no moment, as the sent ence itself was imposed in strict accordance with the negotiated bargain. The court was, presumably, fully aware at all times of the evaluator’s confidential report, which had been filed pursua nt to the court’s order. Defendant’s sentence of 19 years was not cruel and unusual for four strike sex offenses. None of potential issues has arguable merit.

2 Penal Code section 288.1 provides: “Any person convicted of committing any lewd or lascivious act includi ng any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or he r sentence suspended un til the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.”9 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

HOLLENHORST Acting P. J.

MILLER J.