Filed 1/23/14 P. v. Ruiz CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138242
v.
CARLOS RENE CAMAAL RUIZ,                                             (Marin County
                                                                     Super. Ct. No. SC181293A)
         Defendant and Appellant.


         Carlos Rene Camaal Ruiz (appellant) appeals from a judgment entered after he
pleaded guilty to continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a),
count 1) 1 and three counts of engaging in a lewd act on a person under the age of 14
(§ 288, subd. (a), counts 5, 9, and 10), and the trial court sentenced him to a total of
22 years in state prison. He contends the trial court erred in the way it calculated the
sentence on counts five, nine and ten. We affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On October 10, 2012, a first amended complaint was filed charging appellant with:
(1) continuous sexual abuse of a child (§ 288.5, subd. (a), count 1); (2) aggravated sexual
assault of a child (§ 269, subd. (a)(1), count 2); (3) rape (§ 261, subd. (a)(2), count 3);
(4) oral copulation on a person under age 14 and more than 10 years younger than the
defendant (§ 288a, subd. (c), count 4); (5) lewd act on a person under age 14 (§ 288,
subd. (a), counts 5, 9, and 10); (6) penetration with a foreign object (§ 289, subd. (j),


         1
          All further statutory references are to the Penal Code unless otherwise stated.


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count 6); (7) attempted sodomy of a person under age 14 and more than 10 years younger
than the defendant (§§ 664, 289, subd. (c)(1), count 7); and (8) distribution of lewd
material to a minor (§ 288.2, subd. (a), count 8).
       On October 10, 2012, appellant pleaded guilty to counts 1, 5, 9, and 10, for a
stipulated sentence of 22 years in state prison. On November 21, 2012, the trial court
denied appellant’s Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). On
January 24, 2013, the trial court granted appellant’s motion to proceed in pro per.
       On March 19, 2013, the trial court denied appellant’s motion to withdraw his plea.
After reviewing the probation officer’s report, the court denied probation and sentenced
appellant on count 1 to the upper term of 16 years. On counts 5, 9, and 10, the court
imposed subordinate consecutive upper terms of eight years and stayed all but two years
on each of the subordinate counts. On March 22, 2013, appellant filed a timely notice of
appeal. The court denied his request for a certificate of probable cause.
       Because the facts of the crimes are not relevant to the issue presented on appeal,
they are briefly stated.2 Appellant lived with the victim and her mother. On July 12,
2012, the victim, 12 years old, told her mother appellant had been sexually abusing her at
least once per week since she was in the fifth grade. She said the abuse occurred in her
bedroom when her mother was not home, and that appellant threatened to beat her if she
told her mother what he had been doing. In a pretext telephone call, appellant did not
deny the allegations. When subjected to a sexual assault forensic examination, the victim
told the doctor that appellant had assaulted her by having vaginal and anal intercourse,
digitally penetrating her vagina, orally copulating her, and forcing her to orally copulate
him.
                                        DISCUSSION
       As noted, the trial court sentenced appellant to a stipulated 22-year term by
imposing the upper term of 16 years on count 1, and by imposing the upper term of eight
years on subordinate counts 5, 9, and 10, and staying all but two of the eight years on


       2
        The facts are taken from the probation officer’s report.


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each of those subordinate counts. Appellant agrees that the total term should have been
22 years, and does not dispute the imposition of the upper term of 16 years on count 1.
He also does not dispute the imposition of consecutive two-year terms on each of the
three subordinate counts, for a total of six years. However, he disagrees with the way in
which the two years on each of the subordinate terms was calculated. Specifically, he
argues that instead of imposing the upper term on those subordinate counts and staying
all but two years on each count, the court should have selected the middle term on those
counts—six years—and imposed one-third of six years, or two years on each count.
       The Attorney General (respondent) acknowledges that under section 1170.1, “the
22-year negotiated sentence could have been imposed . . . as follows: the upper base
term of 16 years on count 1, and consecutive one-third midterms of two years each on
counts 5, 9, and 10.” However, it states that it “hardly matters” how the two year terms
were calculated. It argues: “The California Supreme Court has held that ‘the rule that
defendants may challenge an unauthorized sentence on appeal even if they failed to
object below is itself subject to an exception: Where the defendants have pleaded guilty
in return for a specified sentence, appellate courts will not find error even though the trial
court acted in excess of jurisdiction in reaching that figure, so long as the trial court did
not lack fundamental jurisdiction.’ (People v. Hester (2000) 22 Cal.4th 290, 295).”
       We agree with respondent. Here, the trial court had fundamental jurisdiction over
appellant—a defendant in a criminal case—as well as subject matter jurisdiction to
impose a sentence following a plea. (See People v. Ramirez (2008) 159 Cal.App.4th
1412, 1426–1427 [court has fundamental jurisdiction over a criminal defendant and the
subject matter of the action].) Thus, even if the court acted in excess of jurisdiction by
calculating the two-year terms as it did, it had fundamental jurisdiction to impose the 22-
year sentence. We therefore reject appellant’s contention that the sentence was
unauthorized.3

       3
        People v. Saibu (2011) 191 Cal.App.4th 1005, on which appellant relies, is
distinguishable. There, the Court of Appeal ordered the abstract of judgment be amended
because it did not conform with what the trial court had actually done. (Id. at p. 1013.)

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                                       DISPOSITION
       The judgment is affirmed.




Further, unlike appellant, the defendant in that case raised the issue below by bringing the
error to the trial court’s attention. (Id. at pp. 1010–1011.)


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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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