Filed 7/26/13 P. v. Manzo CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138047
v.
JOSE LUIS MANZO,                                                     (Napa County
                                                                     Super. Ct. No. CR160956)
         Defendant and Appellant.


         Appellant, Jose Luis Manzo, appeals from the judgment and sentence following a
plea of no contest. His court-appointed attorney has filed a brief raising no legal issues
and requesting this court to conduct an independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436. As the appeal is based solely on grounds
occurring after entry of the plea and does not challenge the validity of the plea, it is
authorized by rule 8.304(b)(4)(B) of the California Rules of Court.
                                FACTS AND PROCEEDINGS BELOW
         The facts summarized in the March 27, 2012 report of the Napa County Sheriff‟s
Department, which were never disputed, are as follows:
         “[O]n March 6, 2012, deputies interviewed the 14-year-old confidential victim and
her mother at the Courage Center in Napa. The victim told deputies that when she was in
fourth grade (approximately nine years old), one of her best friend‟s dad, later identified
as the defendant, touched her. The victim said her friend‟s parents were split up and she
went over to the defendant‟s house on the weekends to spend the night with her friend,
the defendant‟s daughter.


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       “The victim went on to say that a couple of the nights she was at the defendant‟s
house, she woke up around 0400 hours and the defendant was touching her. She said she
felt that the defendant thought she was sleeping when he was touching her, but she was
not asleep. The victim said she was too scared to say anything to the defendant when he
was touching her and she felt the fear carried over from when her little brother‟s dad
would hit or yell at her and she was afraid the defendant would hit or yell at her if she
said anything.
       “The victim told deputies that her friend had a little sister and whenever they
would fall asleep, they would fall asleep in the same bed because they would be watching
a movie and the defendant would come into the room, get on the bed, fall asleep behind
the victim, reach his arm over on the victim and touch her.
       “The victim said the first time the defendant touched her was when she was laying
in bed with her friend and the little sister and all three of them were facing the same way
in the bed. The victim said the defendant came up behind her in the bed and „grabbed her
boob.‟ In response, the victim said she turned away. The victim said the defendant
moved down and „started touching me there‟ and said, „He went on the front of my
vagina and started rubbing.‟ The victim said she tried again to make him stop, but he did
not stop and instead tried to kiss her.
       “The victim said another time „he (the defendant) actually tried to make out with
me‟ and said the defendant tried to stick his tongue in her mouth. The victim explained
that every time he touched her, she tried to turn away and when she turned away, to get
the defendant to stop touching her, he would stop for a little bit, then start touching again.
The victim said the defendant touched her under her bra and beneath her underwear with
„his hand‟ and he never touched her with any other parts of his body.
       “Deputies asked the victim what was going through her mind at the time and the
victim said she did not know, but „probably mostly fear.‟ The victim said she was scared
he (the defendant) would yell at her or get mad at her.
       “The victim said, during the other times the defendant touched her „the majority of
it just happened the same way‟ and she said one time the defendant was wearing sweats


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when he was touching her and he opened his sweats and pulled out his penis. The victim
said the defendant did not touch her with his penis, but he did pull it out of his sweatpants
while he was sitting behind her and she felt his penis on her back over her clothing. The
victim said every time she tried to move away or pull away, it was not working, so she
just gave up.
       “The victim said every time the defendant touched her was during the course of a
sleepover, and she knew the touching was wrong, but the only reason she did not quit
going to her friend‟s house was because she did not want to lose her as a friend. The
victim said she felt like she had to put up with the touching in order to keep the
defendant‟s daughter as a friend.
       “The victim told deputies the defendant touched her on four or five occasions and
stopped around the time the defendant got married. After he got married, the victim said
she still went to visit her friend at the defendant‟s house, but he did not touch her
anymore. After elementary school, the victim said she and her friend ended up going to
different schools and lost touch.
       “When deputies asked the victim why she never told her mom earlier about being
touched she said she felt like part of it was her fault and that she could have stopped it
because she knew it was wrong, but she did not.
       “On March 23, 2012, at approximately 1300 hours, deputies interviewed the
defendant at the Napa Sheriff‟s Department. At that time, deputies asked the defendant
how many times he touched the victim‟s breast and he said, „It may have happened once,
I don‟t recall exactly.‟ When deputies told him the victim said it happened on several
occasions and the defendant replied, „It could not be so.‟ When asked if he has desires or
temptations toward that type of behavior, the defendant said, „No.‟ The defendant said
that he was in the bedroom with his daughters and the victim, but he never climbed into
bed with the girls. He said they would watch cartoons together and when the girls fell
asleep, he would turn the television off and leave the room.
       “The defendant later admitted that he touched the victim‟s breast and said, „I don‟t
understand why it happened or how it could have happened.‟ He admitted that he


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recognized this touching was inappropriate and denied being under the influence of drugs
or alcohol. When deputies asked the defendant if he was curious about the victim‟s
breast and if they were growing yet and he said, „Yes, growing.‟
       “When deputies asked the defendant about his curiosity extended to the presence
of pubic hairs near the victim‟s vagina, the defendant would not respond. Deputies asked
the defendant that in this one isolated moment of weakness, was he sure he did not touch
the victim‟s vaginal area and the defendant said, „Possible, above the clothes.‟ He said
when the victim moved, he would stop doing it. The defendant then said, „Yes, I touched
her, for curiosity.‟
       “When asked about the kissing on the mouth, while the victim was asleep, the
defendant said, „Possibly, I don‟t remember.‟ The defendant asked why if the victim
remembers these things happened how come she had not said anything prior. Deputies
explained that the victim was scared because he hurt her and that she trusted him like a
father and when he touched her and kissed her he broke the trust.”
       Later, sheriff‟s deputies met with appellant‟s 18-year-old niece, identified in the
report as “V-2,” because his former wife told them the niece might also have been
sexually abused by appellant. The interview is reported in the sheriff‟s report as follows:
       “V-2 told deputies she was nine years old when the crime occurred and she was
always going to the defendant‟s house to be with her cousins and have family parties and
barbeques. V-2 said the first incident involving the defendant touching her occurred
when all of the kids were playing hide and go seek. V-2 said it was her turn to count so
the defendant asked all the kids to leave the garage and hide. The defendant then turned
off all the lights in the garage and then she „just felt somebody come and, like touch her
inside her shirt and inside my pants.‟ V-2 said she just stood there until she heard her
mom get back from the store and she told the defendant „Stop.‟ V-2 said, „He would,
like, un-buttoned my pants, and just like stuck his hand and like, he didn‟t necessarily
touch me, but I felt like he was about ready to until my mom and aunt got there.‟ V-2
said it happened every weekend where the defendant would find some way to „just get
me alone‟ and said, „It happened every week on three different occasions.‟


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       “V-2 said the second time was at the defendant‟s house and he touched her breast,
under the bra and touched her vagina over her underwear and under her pants.
       “The third time, V-2 said she was at the defendant‟s house for his daughter‟s
birthday. She went inside the house to use the bathroom and when she went inside, she
saw the defendant watching television in the bedroom. V-2 said she entered the bedroom
to use the bathroom and the defendant shut the door and began to touch her. V-2 said she
knew as soon as he shut the door he was going to touch her and touch her breast under
her bra. V-2 said she believes the defendant did touch her vagina and described the area
touched as „the line of where your vagina starts, it‟s like, he was getting there.‟ V-2 said
she had told her mom „years after‟ and begged her mom not to say anything because of
the defendant‟s two daughters.”
       At the time of these proceedings, appellant was 44 years old and had no prior
convictions. When in his mid-twenties, he immigrated to California from Mexico and
became a United States citizen. He is a high school graduate and was employed for 15
years as a maintenance man in an apartment complex. There is no showing he used
illegal drugs or alcohol. He lived in Napa and has been married to his current wife for
about five years. The events described in the Sheriff‟s report occurred approximately six
years earlier, when appellant was in the midst of divorcing his previous wife.
The Charged Offenses
       On June 25, 2012, appellant was charged by information with two counts of
continuous sexual abuse (Pen. Code, § 288.5, subd. (a)),1 and 11 counts of child
molestation (§ 288, subd.(a)).
Appellant’s Plea
       On November 7, 2012, appellant pleaded no contest to one count of continuous
sexual abuse and one count of child molestation, pursuant to a bargain for the dismissal




1
       All statutory references are to the Penal Code except where otherwise indicated.

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of the remaining counts with a Harvey waiver,2 referral for a section 288.1 report,
consideration of probation, and a maximum sentence of 14 years in state prison.
       Appellant, who spoke to probation officers through an interpreter, admitted he
touched the first victim‟s breast “one time” out of curiosity and to see whether they were
growing. He said he was single at the time, going through “ „a lot of things and I simply
was not well in my mind.‟ ” He said, “ „I feel bad in a way. I didn‟t mean to hurt her.‟ ”
He said he is willing to comply with the terms and conditions of probation. Appellant
denied ever touching V-2, stating, “ „I think she is confused because my father was the
one who did this before.‟ ” The probation department advised both victims of their right
to make statements to the court, but neither responded.
The Recommendation of the Probation Department
       The probation department stated that appellant scored 11 on the LS/CMI
evaluation, indicating a “medium risk to reoffend”; and scored zero on the Static 99R
evaluation, “which places him in the Low Risk Category for being charged or convicted
of another sexual offense if . . . released on probation.” Nevertheless, the department
stated that it “does not view him an appropriate candidate for a local disposition.”
The Section 288.1 Report
       The court ordered preparation of a report pursuant to section 288.1 (which
provides that any person convicted of certain sexual acts upon or with the body of a child
under 14 years of age shall not have his or her sentence suspended until the court obtains
the report of a reputable psychiatrist or psychologist as to the mental condition of that
person). Dr. Madeline Andrew, M.D., prepared such a report in which she opined “with
reasonable medical certainty, that [appellant] does not suffer from any mental defects or
diseases,” that his rehabilitation “is feasible,” and he “is amenable to treatment.” It was
also Dr. Andrew‟s opinion “that [appellant‟s] risk of recidivism is extremely low.”




2
       People v. Harvey (1979) 25 Cal.3d 754.

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The Sentencing Hearing
       The court disagreed with Dr. Andrew‟s report, stating as follows: “Obviously the
doctor‟s report is important but the court cannot ignore its own experience in the law both
as an attorney and as a judge . . . . And, first of all, we‟re talking about an individual
who‟s victimizing eight and nine year old girls. That‟s a different mindset than someone
who‟s molesting a 13-year-old or 12-year-old. I think that shows very significantly a
sexual interest in children . . . . [¶] We also have a situation where we have it not
happening once but twice over a period of time. . . . He did it four or five years later and
seems to me that that‟s ignored in Dr. Andrew‟s report. And for that reason I don‟t find
that he‟s amenable [to probation] under [section] 1203.066(d).”
       The court also observed that even if appellant were amenable to probation under
that code section, it would deny probation “given the age of the victims and the period of
time involved,” as well as the fact that appellant “inflicted emotional injury on both of his
victims.”
       On February 21, 2013, the court sentenced appellant to a total of 12 years in state
prison: the 12-year midterm for continuous sexual abuse and concurrent six-year term
for child molestation. Appellant received 388 days presentence credits, comprising 336
actual days plus 52 days good-time credit (§ 2933.1). The court imposed a restitution
fine (§ 1202.4) in the amount of $5,000, that was stayed pending successful completion
of parole (§ 1202.45). The court also imposed a $300 fine pursuant to section 290.3, an
$80 court security fee (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code
§ 70373). It ordered DNA testing (§ 296) and sex offender registration (§ 290).
       On February 28, 2013, appellant filed a timely notice of appeal from the sentence
imposed.
                                       DISCUSSION
       Where, as here, an appellant has pled not guilty or no contest to an offense, the
scope of reviewable issues is restricted to matters based on constitutional, jurisdictional,
or other grounds going to the legality of the proceedings leading to the plea; guilt or
innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)


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       Nothing in the record indicates appellant was mentally incompetent to stand trial
or to understand the admonitions he received from the court prior to entering his plea, and
to thereupon enter a knowing and voluntary plea.
       The admonitions given appellant at the time he entered his plea fully conformed
with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969)
1 Cal.3d 122, and his waiver was knowing and voluntary.
       There was a factual basis for the plea.
       Appellant was at all times represented by competent counsel who protected his
rights and interests.
       The sentence imposed is authorized by law.
       Our independent review having revealed no arguable issues that require further
briefing, the judgment of conviction, which includes the sentence imposed, is affirmed.

                                                 _________________________
                                                 Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Lambden, J.




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