Filed 1/29/14 P. v. Murillo CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064485

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD235095)

REY ARMANDO MURILLO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance by Respondent.

         Rey Armando Murillo was charged in a fourth amended information with 22

felony counts of sex offenses involving children. He entered into a plea agreement, under

the terms of which he pleaded guilty to three counts of forcible child molestation (Pen.
Code,1 § 288, subd. (b)(1)), and one count of lewd acts upon a minor (§ 288, subd. (a)).

Murillo also admitted the acts involved substantial sexual conduct and agreed to a prison

sentence of 36 years.

      Prior to sentencing Murillo filed a motion under People v. Marsden (1970) 2

Cal.3d 118 (Marsden), seeking to replace appointed counsel and seeking to set aside his

guilty pleas. Both motions were denied. Thereafter the court sentenced Murillo to a

determinate term of 36 years in prison in accordance with the plea agreement.

      Murillo filed a timely notice of appeal and requested a certificate of probable

cause (§ 1237.5). The request for a certificate of probable cause was denied.

      Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), raising possible, but not

arguable issues. We offered Murillo the opportunity to file his own brief on appeal, and

he has done so. We will consider his contentions below.

                               STATEMENT OF FACTS

      This conviction arises from a guilty plea. Thus we take the summary from the

probation report. The offenses at issue here involve Murillo's molestation of his daughter

from age 6 through age 13.

      Murillo's plea occurred after the jury in his trial had been impaneled. Prior to his

plea the trial court engaged in lengthy discussions with Murillo and fully advised him of




1     All further statutory references are to the Penal Code unless otherwise specified.
                                            2
his rights. The parties agreed that the transcript of the preliminary hearing would be used

by the trial court as the factual basis for the guilty pleas.

       At the sentencing hearing probation was denied and Murillo was sentenced to a

prison term of 36 years. In addition the court imposed a restitution fine of $300, a

security fee of $40 for each count, and a court facilities fee of $30 for each count. There

were no objections to the imposition of the sentence or fees imposed.

                                        DISCUSSION

                                                I

                                MURILLO'S CONTENTIONS

       Murillo raises issues "on the record" and "off the record." As to the on the record

issues, Murillo asks that we determine if there was a factual basis for his plea and

whether the court erred in denying his Marsden motion.

       The record demonstrates the trial court utilized the transcript of the preliminary

hearing to determine the factual basis for the pleas and that the court had read the

transcript and found a factual basis.

       In sum, Murillo's supplemental brief, and his discussions with the court at the

July 11, 2013 Marsden hearing involved his contention he was in Mexico when he

committed the acts alleged in count 2 of the information. That issue had been the subject

of an in limine motion and motions at the preliminary hearing. The trial court expressly

found there was a factual basis for finding the acts in count 2 were committed in

California.



                                                3
       Murillo did not obtain a certificate of probable cause as required by section 1237.5

and thus cannot challenge the validity of his plea. (People v. Panizzon (1996) 13

Cal.4th 68, 75.) With regard to the denial of his Marsden motion brought after the plea,

we have read the transcript of that motion. Again it was based on Murillo's contention

his counsel had misled him about his plea because count 2 was committed in Mexico.

The trial court properly denied his request to relieve counsel and to vacate his guilty plea.

       Murillo's request for this court to "look into" the question of effective assistance of

counsel is candidly listed as "off the record" material. That is, there is nothing in the

record on which we could assess the adequacy of counsel's preplea investigation.

Accordingly, Murillo's remedy, if any, is by way of petition for writ of habeas corpus,

filed in the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) We offer

no opinion on the possible merits of such issue.

                                              II

                                       WENDE BRIEF

       As we have indicated, appellate counsel has filed a brief indicating he is unable to

identify any argument for reversal and asks this court to review the record for error as

mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the

brief identifies the possible, but not arguable issues:

       1. Whether the amounts of the court security and facility fees were properly

imposed on counts which were committed prior to changes in the law?

       2. Whether Murillo received appropriate conduct credits?



                                              4
      We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d

436 and Anders, supra, 386 U.S. 738 and have not found any arguable appellate issues.

Competent counsel has represented Murillo on this appeal.

                                    DISPOSITION

      The judgment is affirmed.




                                                               HUFFMAN, Acting P. J.

WE CONCUR:



                      AARON, J.


                        IRION, J.




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