Filed 5/17/13 P. v. Romero 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065224
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11904707)
                   v.

RICARDO LUCERO ROMERO,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James R.
Oppliger and D. Tyler Tharpe, Judges.†

         Gregory M. Chappel, 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 Wiseman, Acting P.J., Levy, J., and Gomes, J.
†      Judge Oppliger presided over appellant’s change of plea hearing. Judge Tharpe
sentenced appellant.
                              FACTS AND PROCEEDINGS
       Appellant, Ricardo Lucero Romero, was charged in an information filed on
April 2, 2012, with assault with intent to commit rape (Pen. Code, § 220, count 1),1
forcible oral copulation (§ 288a, subd. (c)(2)(A), count 2), and two counts of sexual
penetration of a minor 14 years of age or older (§ 289, subd. (a)(1)(C), counts 3 & 4).
The information further alleged that appellant had two prior prison term enhancements
(§ 667.5, subd. (b)).
       On May 17, 2012, appellant entered into a plea agreement in which he would
admit counts 3 and 4, as well as the two prior prison term enhancements, in exchange for
the dismissal of counts 1 and 2. Appellant would be subject to a maximum prison
sentence of 22 years. Appellant executed and initialed a felony advisement, waiver of
rights, and plea form indicating he would admit counts 3 and 4, as well as the two
enhancements. Appellant acknowledged and waived his constitutional rights pursuant to
Boykin/Tahl,2 stated he understood the consequences of his plea, and agreed the police
reports constituted a factual basis for his plea.
       Appellant also initialed a box stating: “I have had enough time to discuss my case
and all possible defenses with my attorney.” Appellant’s trial counsel signed the form
under the heading “ATTORNEY’S STATEMENT,” acknowledging that counsel
reviewed the plea form with his client, explained his constitutional rights to appellant,
answered all of appellant’s questions concerning the plea, discussed the facts of the case
with appellant and the consequences of the plea, and reviewed the elements of the
offenses and potential defenses.


1      All statutory references are to the Penal Code.
2     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).


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       At the change of plea hearing, appellant verified to the trial court that he executed
and initialed the plea form. The court explained to appellant the consequences of his
plea, including his Boykin/Tahl rights which appellant waived in court. The parties
stipulated that the police reports constituted the factual basis for the plea. Appellant pled
no contest to counts 3 and 4 and admitted the two prior prison term enhancements.
Pursuant to the plea agreement, the trial court granted the prosecutor’s motion to dismiss
counts 1 and 2.
       On June 22, 2012, the trial court sentenced appellant in counts 3 and 4 to the upper
term of ten years, to be served fully, separately, and consecutively pursuant to section
667.6, subdivision (c). The court imposed two consecutive sentences of one year for
each prior prison term enhancement for a total prison sentence of 22 years. The court
imposed a restitution fine of $5,280 and granted total custody credits of 470 days. 3 The
court reserved the issue of victim restitution for later determination.
       Appellant did not obtain a certificate of probable cause. Appellate counsel has
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

3       The original abstract of judgment inaccurately indicated that appellant was
sentenced pursuant to the three strikes law. It also inaccurately indicated by a checked
box on the form that appellant’s consecutive sentence on count 4 was to be a consecutive,
one-third term. Appellate counsel filed correspondence with the trial court seeking
removal from the abstract of judgment of any reference to sentencing pursuant to the
three strikes law.
        On November 15, 2012, this court filed an amended abstract of judgment with the
reference to sentencing under the three strikes law omitted. The amended abstract of
judgment, however, still has the inaccurate box checked indicating that appellant’s
consecutive term on count 4 is one-third of the 10-year term imposed by the court. This
is clerical error that can be corrected at any time. (People v. Mitchell (2001) 26 Cal.4th
181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) Accordingly, we will remand to
the trial court for the limited purpose of having the abstract of judgment again corrected
to reflect that appellant’s sentence on count 4 is a consecutive full term sentence to his
sentence on count 3.


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                                          FACTS
       At 2:15 a.m. on August 14, 2011, 16-year-old Confidential Victim (CV), was
walking with her friend, R.A., in the area of Fresno and Olive Streets in Fresno when
appellant exited his vehicle at a gas station and tried talking to CV. CV and R.A. tried to
ignore appellant and continued walking. Appellant followed the two girls, who crossed
the street to avoid appellant. Appellant grabbed CV, put his hand over her mouth, and
touched her anus and vagina through her clothing.
       R.A. called the police. CV bit appellant’s hand and tried to move onto a fence and
yelled for help. Appellant grabbed CV and placed his penis into her mouth and moved
her head back and forth. CV scratched appellant’s face with a fingernail. R.A. knocked
on the door of a nearby house, pleading for help. CV asked for help from people at a
nearby garage. Appellant assured the people that CV was just going crazy. Appellant
got CV to the ground, put his hand down the back of her shorts inside her underwear, and
stuck a finger in CV’s anus and another finger in her vagina and moved them back and
forth for a few seconds.
       Two men walked up and told appellant to leave CV alone. CV got up and ran
away to her father’s house. Appellant was detained by the men. When police arrived,
they observed that appellant had scratches on his face. Police noted that CV’s lip was
swollen and her face had scratches and red marks. Both of CV’s legs were scratched.
CV was brought back to the scene and positively identified appellant as her assailant.
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his



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own brief with this court. By letter on October 1, 2012, we invited appellant to submit
additional briefing.
       Appellant replied with a letter complaining that the victim’s mother got to state at
sentencing that the victim was not the same outgoing person she used to be, lived in
constant fear, and was afraid to leave her house. Appellant claims his relatives were not
allowed to speak at the hearing. Appellant asserts he never admitted anything about the
offenses charged against him and he was misadvised by his attorney. Appellant denies
waiving his rights and asserts that he was railroaded by his attorney and the prosecutor.
       There is no indication that during the sentencing hearing appellant’s relatives
attempted to speak on his behalf and were denied the chance to do so. The record clearly
shows that appellant was well aware of his Boykin/Tahl rights and waived them both in
the plea form and in open court after an advisement by the trial judge. Appellant’s
counsel signed a statement that he advised appellant of his rights and potential defenses
and appellant initialed a box in the plea form that he had consulted his attorney. As part
of the plea bargain, two other felony sex offense charges that were also subject to
consecutive sentencing were dismissed. There is no evidence in the record that
appellant’s trial representation was inadequate.4

4      The defendant has the burden of proving ineffective assistance of trial counsel. To
prevail on a claim of ineffective assistance of trial counsel, the defendant must establish
not only deficient performance, which is performance below an objective standard of
reasonableness, but also prejudice. A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is
evaluated in the context of the available facts. To the extent the record fails to disclose
why counsel acted or failed to act in the manner challenged, appellate courts will affirm
the judgment unless counsel was asked for an explanation and failed to provide one, or,
unless there simply could be no satisfactory explanation. Prejudice must be affirmatively
proved. The record must affirmatively demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
(People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in

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       Appellant contends he did not admit any allegations. Appellant, however, pled no
contest to counts 3 and 4 in open court and admitted them in the plea form. A guilty plea
is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli
(1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not
introduce proof to support the accusation. The plea ipso facto supplies both evidence and
verdict and is deemed to constitute an admission of every element of the charged offense.
(People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v.
Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)
       A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and
also constitutes an admission of every element of the offense pled. (People v. Warburton
(1970) 7 Cal.App.3d 815, 820-821.) We therefore reject appellant’s contention he was
not guilty or that there was no evidence against him.
       Finally, to the extent that appellant’s letter can be construed as a challenge to the
validity of the plea agreement, he is barred from making such a challenge because he
failed to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68,
77-79.) Defendants cannot set aside their pleas merely because they change their minds
or have buyer’s remorse. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144; People
v. Knight (1987) 194 Cal.App.3d 337, 344.)
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.




tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza
(2000) 24 Cal.4th 130, 166.) We find no evidence in the record on appeal that defense
counsel’s representation was ineffective.


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                                      DISPOSITION
       The case is remanded to the trial court for the limited purpose to correct clerical
error and amend the abstract of judgment to reflect the trial court’s order during
sentencing that appellant’s sentences on counts 3 and 4 were to run fully, separately, and
consecutively. The court shall forward the amended abstract of judgment to the
appropriate authorities. The judgment is affirmed.




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