Filed 10/31/13 P. v. Hughley 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     F066297

                   v.                                                     (Super. Ct. No. 12CM0108)

ANDRE JAMES HUGHLEY,
                                                                                     OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes and Donna Tarter, Judges.†
         Deborah Prucha, 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 Cornell, Acting P.J., Kane, J. and Peña, J.
†     Judge Barnes presided over appellant’s change of plea hearing. Judge Tarter
sentenced appellant.
                                    INTRODUCTION
       On September 7, 2012, a first amended information was filed alleging appellant,
Andre James Hughley, committed an assault with intent to commit rape (Pen. Code,
§ 220, subd. (b), count 1),1 rape (§ 261, subd. (a)(2), count 2), first degree burglary
(§ 459, count 3), sexual penetration (§ 289, subd. (a)(1)(A), count 4), felony dissuasion of
a witness (§ 136.1, subd. (a)(1), count 5), and assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4), count 6).
       On September 7, 2012, appellant entered into a plea agreement and waived his
constitutional rights in court pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In
re Tahl (1969) 1 Cal.3d 122. The court explained the consequences of the change of plea
to appellant and appellant waived a preliminary hearing on the newly added counts he
was admitting. The parties acknowledged that there was a factual basis for the plea based
on the sexual examination of the victim in the hospital and the police reports.2 Appellant
pled no contest as charged in the first amended information to counts 5 and 6.
       On October 5, 2012, the trial court sentenced appellant to the midterm of three
years on count 6 and to a consecutive term of eight months on count 5 for a total prison
term of three years eight months. The court imposed a restitution fine of $720, granted

1      All statutory references are to the Penal Code.
2       The court granted the People’s motion to dismiss counts 1 through 4 on the basis
that there was insufficient evidence to support the allegations. An unrelated
misdemeanor case was also dismissed. Defense counsel stipulated that the factual basis
for count 6 was the SART examination given by a hospital nurse as part of a sexual
examination of the victim, A.O. According to the probation report, A.O. and appellant
had sexual intercourse in the early hours of January 14, 2012. The SART examination
indicated that A.O. had tenderness to her posterior fouchette, which is common in cases
in which sexual intercourse is not planned and the penis has been striking the bottom of
the vagina. Defense counsel further represented that the factual basis for appellant’s
admission of count 5 were letters he wrote to a potential witness seeking to have that
witness tell A.O. to dismiss the charges.


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custody credits of 266 days for time served in jail and 266 days of custody credits, for
total credits of 532 days.3 Appellant did not obtain a certificate of probable cause.
Appellate counsel has filed a brief seeking independent review of the case by this court
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                            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
own brief with this court. By letter on February 28, 2013, we invited appellant to submit
additional briefing.
       Appellant replied with a letter stating that he was unaware the two counts he
admitted could be given consecutive sentences. Appellant also challenges the victim’s
veracity. Appellant was informed by the trial court prior to changing his plea that the
maximum sentence he could receive was four years eight months. The parties did not
stipulate to a specific sentence. Appellant’s trial counsel reserved the right to argue that
appellant be placed on probation. Appellant received a sentence one year less in length
than the maximum exposure he was advised he could receive. We find that even if it was
error for the court to fail to inform appellant that his potential sentence on counts 5 and 6
could be consecutive, any error was harmless because the court accurately advised him of
the consequences of his plea.


3      We note appellant’s last name is misspelled on the abstract of judgment as
“Hugley” when throughout the rest of the record it is spelled as “Hughley.” This is a
clerical error that can be corrected at any time, including on appeal. (People v. Jones
(2012) 54 Cal.4th 1, 89; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario
(1970) 3 Cal.3d 702, 705.) We will remand to the trial court to amend the abstract of
judgment.

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       Appellant further challenges the veracity of the victim. This appears to be a
challenge to the factual basis for appellant’s no contest plea. We initially note that
appellant has failed to obtain a certificate of probable cause and cannot challenge alleged
defects in his plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68.) Furthermore, 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 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.)
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                      DISPOSITION
       The case is remanded to the trial court to amend the abstract of judgment to show
that appellant’s last name is “Hughley.” The trial court shall forward the amended
abstract of judgment to the appropriate authorities. The judgment is affirmed.




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