Filed 9/25/14 P. v. Mancias CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. LUIS ALBERTO MANCIAS, Defendant and Appellant. F066583 (Super. Ct. No. F11906149)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Fresno Coun ty. Gary D. Hoff and Houry A. Sanderson, Judges. † Robert L.S. Angres, under appointment by the Court of Appeal , for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

* Before Poochigian, Acting P.J ., Detjen, J. and Franson, J. † Judge Hoff ruled on appellant’s first mo tion to substitute his trial counsel. Judge Sanderson presided over appella nt’s change of plea, second motion to substitute counsel, and sentencing hearing.2. PROCEDURAL SUMMARY Appellant, Luis Alberto Mancias, was charged on July 12 , 2012, in a first amended information with committing a lewd an d lascivious act on a child under the age of 14 years old (Pen. Code, § 288, subd. (b)(1 ), count 1), 1 aggravated sexual assault between November 8, 1999 and November 7, 2007, on a child unde r the age of 14 years old and being more than seven years older than the victim (§ 269, subd. (a)(5), count 2), two counts of aggravated sexual assault by or al copulation on a victim under the age of 14 years old and being more than 10 years ol der than the victim (§ 269, subd. (a)(4), counts 3 & 4), and committing a lewd and la scivious act on a child who was 14 or 15 years old, and being at least 10 years older than the victim (§ 288, subd . (c)(1), count 5). On September 19, 2012, the trial c ourt conducted a hearing pursuant to People v.
Marsden (1970) 2 Cal.3d 118 ( Marsden ). Appellant said he had been sending his attorney letters asking for paperwork, and expl ained he needed the paperwork in his case, including the statement of witn esses, to assist his counsel and had just received it the week before. Appellant told the court he was in court because of domestic violence with his wife and had a clean record. Appellant reiterated that his counsel had not brought him the paperwork. Trial counsel told the court he had gone over with appellant numerous factual discrepancies in the case. Counse l also discussed with appellant Miranda 2 advisements he received from investigators. Counsel planne d at trial to possibly make a challenge to statements by appellant based on Miranda , but acknowledged the challenge would be a close call. There was an offer for appe llant to admit one count of section 269, subdivision (a)(5) with a senten ce of 15 years to life. Appellant faced exposure of an indeterminate term of 30 years to life plus a de terminate term of 4 years, or possibly, an

1 Unless otherwise designated, all statut ory references are to the Penal Code.
2 Miranda v

. Arizona (1966) 384 U.S. 436.3. indeterminate term of 45 years to life plus a determinate term of 11 years. Counsel was also preparing to file a suppression motion. Appellant offered no other information and
the trial court denied the Marsden motion. The court found counsel was adequately representing appellant and that there wa s no breakdown in the attorney-client relationship. On September 19, 2012, appellant ente red into a plea agreement. Appellant initialed and executed a felony advisement of rights, waiver, and plea form acknowledging and waiving his constitutional rights pursuant to Boykin / Tahl

. 3 Appellant also acknowledged the consequences of his pl ea. In exchange for appellant’s admission of count 2, an allegation of section 269, subdivision (a)(5 ), the remaining allegations would be dismissed. Under the plea agreemen t, the court would sentence appellant to a term of 15 years to life. The contents of the form were translat ed into Spanish for appellant by a certified Spanish interpreter who stated that appellant indicated he
understood the contents of th e form and initialed it. The court asked appellant if he recognized the plea form, if he had sufficient opportunity to review it with hi s counsel, and if appellant ex ecuted and initialed the form. Appellant replied affirmatively to all of the court’s questions. Appellant indicated he had no questions about the plea he was about to enter. The trial court advised appellant of, and he waived, his Boykin / Tahl rights. The court advised ap pellant of the consequences of his plea including, inter alia, the parole and immigration conseque nces of admitting the allegation as well as the fact that he would be ineligible for probation. The parties stipulated that the preliminar y hearing transcript constituted the factual basis for the plea. Appellant pled no contest to count 2. On October 26, 2012, appe llant brought a second Marsden motion. Appellant presented the court with a letter. The le tter was written in Eng lish by appellant and

3 Boykin v

. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 ( Boykin / Tahl ).4. signed by him. 4 The court stated that the letter generally expressed appellant’s dissatisfaction with trial counsel’s performance and sought his replacement as counsel. Appellant stated that more investigation needed to be done in his case and his family was gathering funds for re tained counsel. When asked for specific reasons why appe llant was dissatisfied with his trial counsel, appellant replied that his counse l had not spoken to the victim. Although counsel called the victim, the victim never an swered the phone. Appellant complained that the district attorney’s investigators had talked to the victim but his own counsel had not. Appellant said that counsel told him not to take the plea bargain because if appellant went to trial the result would be the same. Appe llant said that before trial his counsel told
him he faced a sentence of 45 years to life. Appellant further complained that his coun sel should have done more work on his case. Appellant did not believe the punishme nt he was getting was fair because he made a mistake, it was his first time in jail, and he was going to spend the rest of his life in prison. Trial counsel had been assigned to appe llant’s case since October 2011. Counsel spoke to appellant on several occasions and sent an investigator to talk to the witnesses appellant described. The complaining witnes s would not return coun sel’s calls or speak with counsel or his investigator. She did, however, testify at the preliminary hearing. Counsel did not prepare motions, but was considering a Miranda motion to exclude some of appellant’s statements to investigators ha d the case gone to trial. Counsel discussed this point with appellant and decided not to file the motion because in similar cases the court always admitted the evidence. Counsel ha d first learned about appellant’s desire to hire private counsel that day.

4 Appellant had a Spanish interprete r throughout the proceedings.5. Counsel explained that although he had no t tried to contact the victim in person, his investigator had done so but only succeed ed in leaving a business card. Counsel tried to bargain the case to a violation of secti on 288.5 with a lower sentence and calculated that had appellant gone to trial and lost on all of the charges, he faced a sentence of 30 years to life plus 4 years. The court could al so give appellant more prison time if he lost at trial, 45 years to life plus 11 years. The court found that appellant’s counsel had assessed the case, discussed it with appellant, and that appellant was provided w ith adequate representation. Appellant had been provided with correct information concerning his exposure in the event he was convicted after a trial of all the allegations against him. The court noted that although appellant was distraught over the outcome of the case, there had been effective representation and no break down in communications. The court denied the Marsden
motion. On November 30, 2012, th e trial court noted appellant was not eligible for probation and sentenced him to prison for a term of 15 years to life pursuant to the plea agreement. Appellant was granted actual custod y credits of 407 days, conduct credits of 61 days, and total custody cred its of 468 days. The court ordered restitution of $3,600,
reserved the issue of direct victim res titution, and imposed other fines, fees, and penalties. Appellant did not obtain a certificate of probable cause. Appellate counsel has filed a brief seeki ng independent review of the case by this court pursuant to People v

. Wende (1979) 25 Cal.3d 436 ( Wende ).
FACTS Appellant is related to R.P. who was born in November 1994. 5 When R.P. was about five years old, the two were alone when appellant drove her to the outskirts of the

5 Some of the dismissed allegations invo lved a second female victim who was 15 years old when appellant molested her. Becaus e these allegations were dismissed, we do not recount the facts involving the mo lestation of the second victim.6. town they lived in. Appellant removed R.P.’s underwear a nd his own jeans and began to rub against R.P.’s vagina with his penis. A ppellant engaged in this conduct on more than 10 occasions when R.P. was between the ages of 10 and 13. When R.P. was between the ages of 10 and 13, appellant touched her brea sts and buttocks on more than 5 occasions. Appellant also made R.P. give him oral se x more than 10 times when she was between the ages of 10 and 13. Appellant urged R.P. not to tell anyone what had happened after
these incidents. When R.P. to ld appellant she did not want to engage in sex acts with him, he ignored her. After appellant was arrested, he told po lice that whatever R.P. accused him of doing was true and he wa s ashamed of it. Appellant adm itted to police that he kissed and sucked on R.P.’s vagina. Appellant said he began this conduct when R.P. was 12 years old. Appellant admitted having mutual oral copulation with R.P. Appellant wrote a letter of apology to R.P. Appellant was in hi s early 30’s when he was arrested.
APPELLATE COURT REVIEW Appellant’s appointed appellate coun sel has filed an opening brief that summarizes the pertinent facts, raises no issu es, and requests this court to review the record independently. ( Wende , supra , 25 Cal.3d 436.) The open ing brief also includes the declaration of appellate c ounsel indicating that appellant was advised he could file his own brief with this court. By letter on Augu st 14, 2013, we invited appellant to submit additional briefing. To date, he has not done so. After independent review of the r ecord, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION The judgment is affirmed.