Filed 9/25/14 P. v. Mancias 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F066583
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11906149)
                   v.

LUIS ALBERTO MANCIAS,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff
and Houry A. Sanderson, Judges.†
         Robert L.S. Angres, 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 Poochigian, Acting P.J., Detjen, J. and Franson, J.
†     Judge Hoff ruled on appellant’s first motion to substitute his trial counsel. Judge
Sanderson presided over appellant’s change of plea, second motion to substitute counsel,
and sentencing hearing.
                              PROCEDURAL SUMMARY
       Appellant, Luis Alberto Mancias, was charged on July 12, 2012, in a first
amended information with committing a lewd and lascivious act on a child under the age
of 14 years old (Pen. Code, § 288, subd. (b)(1), count 1),1 aggravated sexual assault
between November 8, 1999 and November 7, 2007, on a child under the age of 14 years
old and being more than seven years older than the victim (§ 269, subd. (a)(5), count 2),
two counts of aggravated sexual assault by oral copulation on a victim under the age of
14 years old and being more than 10 years older than the victim (§ 269, subd. (a)(4),
counts 3 & 4), and committing a lewd and lascivious act on a child who was 14 or 15
years old, and being at least 10 years older than the victim (§ 288, subd. (c)(1), count 5).
       On September 19, 2012, the trial court conducted a hearing pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden). Appellant said he had been sending his
attorney letters asking for paperwork, and explained he needed the paperwork in his case,
including the statement of witnesses, to assist his counsel and had just received it the
week before. Appellant told the court he was in court because of domestic violence with
his wife and had a clean record. Appellant reiterated that his counsel had not brought
him the paperwork.
       Trial counsel told the court he had gone over with appellant numerous factual
discrepancies in the case. Counsel also discussed with appellant Miranda2 advisements
he received from investigators. Counsel planned at trial to possibly make a challenge to
statements by appellant based on Miranda, but acknowledged the challenge would be a
close call. There was an offer for appellant to admit one count of section 269,
subdivision (a)(5) with a sentence of 15 years to life. Appellant faced exposure of an
indeterminate term of 30 years to life plus a determinate term of 4 years, or possibly, an


1      Unless otherwise designated, all statutory references are to the Penal Code.
2      Miranda v. Arizona (1966) 384 U.S. 436.


                                             2.
indeterminate term of 45 years to life plus a determinate term of 11 years. Counsel was
also preparing to file a suppression motion. Appellant offered no other information and
the trial court denied the Marsden motion. The court found counsel was adequately
representing appellant and that there was no breakdown in the attorney-client
relationship.
       On September 19, 2012, appellant entered into a plea agreement. Appellant
initialed and executed a felony advisement of rights, waiver, and plea form
acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl.3 Appellant
also acknowledged the consequences of his plea. In exchange for appellant’s admission
of count 2, an allegation of section 269, subdivision (a)(5), the remaining allegations
would be dismissed. Under the plea agreement, the court would sentence appellant to a
term of 15 years to life. The contents of the form were translated into Spanish for
appellant by a certified Spanish interpreter who stated that appellant indicated he
understood the contents of the form and initialed it.
       The court asked appellant if he recognized the plea form, if he had sufficient
opportunity to review it with his counsel, and if appellant executed and initialed the form.
Appellant replied affirmatively to all of the court’s questions. Appellant indicated he had
no questions about the plea he was about to enter. The trial court advised appellant of,
and he waived, his Boykin/Tahl rights. The court advised appellant of the consequences
of his plea including, inter alia, the parole and immigration consequences of admitting the
allegation as well as the fact that he would be ineligible for probation.
       The parties stipulated that the preliminary hearing transcript constituted the factual
basis for the plea. Appellant pled no contest to count 2.
       On October 26, 2012, appellant brought a second Marsden motion. Appellant
presented the court with a letter. The letter was written in English by appellant and

3     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).


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signed by him.4 The court stated that the letter generally expressed appellant’s
dissatisfaction with trial counsel’s performance and sought his replacement as counsel.
Appellant stated that more investigation needed to be done in his case and his family was
gathering funds for retained counsel.
          When asked for specific reasons why appellant was dissatisfied with his trial
counsel, appellant replied that his counsel had not spoken to the victim. Although
counsel called the victim, the victim never answered the phone. Appellant complained
that the district attorney’s investigators had talked to the victim but his own counsel had
not. Appellant said that counsel told him not to take the plea bargain because if appellant
went to trial the result would be the same. Appellant said that before trial his counsel told
him he faced a sentence of 45 years to life.
          Appellant further complained that his counsel should have done more work on his
case. Appellant did not believe the punishment he was getting was fair because he made
a mistake, it was his first time in jail, and he was going to spend the rest of his life in
prison.
          Trial counsel had been assigned to appellant’s case since October 2011. Counsel
spoke to appellant on several occasions and sent an investigator to talk to the witnesses
appellant described. The complaining witness would not return counsel’s calls or speak
with counsel or his investigator. She did, however, testify at the preliminary hearing.
Counsel did not prepare motions, but was considering a Miranda motion to exclude some
of appellant’s statements to investigators had the case gone to trial. Counsel discussed
this point with appellant and decided not to file the motion because in similar cases the
court always admitted the evidence. Counsel had first learned about appellant’s desire to
hire private counsel that day.




4         Appellant had a Spanish interpreter throughout the proceedings.


                                               4.
       Counsel explained that although he had not tried to contact the victim in person,
his investigator had done so but only succeeded in leaving a business card. Counsel tried
to bargain the case to a violation of section 288.5 with a lower sentence and calculated
that had appellant gone to trial and lost on all of the charges, he faced a sentence of 30
years to life plus 4 years. The court could also give appellant more prison time if he lost
at trial, 45 years to life plus 11 years.
       The court found that appellant’s counsel had assessed the case, discussed it with
appellant, and that appellant was provided with adequate representation. Appellant had
been provided with correct information concerning his exposure in the event he was
convicted after a trial of all the allegations against him. The court noted that although
appellant was distraught over the outcome of the case, there had been effective
representation and no breakdown in communications. The court denied the Marsden
motion.
       On November 30, 2012, the trial court noted appellant was not eligible for
probation and sentenced him to prison for a term of 15 years to life pursuant to the plea
agreement. Appellant was granted actual custody credits of 407 days, conduct credits of
61 days, and total custody credits of 468 days. The court ordered restitution of $3,600,
reserved the issue of direct victim restitution, and imposed other fines, fees, and
penalties. 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).
                                            FACTS
       Appellant is related to R.P. who was born in November 1994.5 When R.P. was
about five years old, the two were alone when appellant drove her to the outskirts of the


5      Some of the dismissed allegations involved a second female victim who was 15
years old when appellant molested her. Because these allegations were dismissed, we do
not recount the facts involving the molestation of the second victim.


                                             5.
town they lived in. Appellant removed R.P.’s underwear and his own jeans and began to
rub against R.P.’s vagina with his penis. Appellant engaged in this conduct on more than
10 occasions when R.P. was between the ages of 10 and 13. When R.P. was between the
ages of 10 and 13, appellant touched her breasts and buttocks on more than 5 occasions.
Appellant also made R.P. give him oral sex more than 10 times when she was between
the ages of 10 and 13. Appellant urged R.P. not to tell anyone what had happened after
these incidents. When R.P. told appellant she did not want to engage in sex acts with
him, he ignored her.
       After appellant was arrested, he told police that whatever R.P. accused him of
doing was true and he was ashamed of it. Appellant admitted to police that he kissed and
sucked on R.P.’s vagina. Appellant said he began this conduct when R.P. was 12 years
old. Appellant admitted having mutual oral copulation with R.P. Appellant wrote a letter
of apology to R.P. Appellant was in his early 30’s when he was arrested.
                           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 August 14, 2013, we invited appellant to submit
additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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