Filed 12/16/13 P. v. Garcia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058245

v.                                                                       (Super.Ct.No. FVI1202684)

ANTHONY GARCIA,                                                          OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Eric N. Nakata,

Judge. Affirmed.

         Martin Kassman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Respondent.

                        FACTUAL AND PROCEDURAL BACKGROUND1

         On the evening of October 12, 2012, the victim went to a party at her friend

         1
         Defendant stipulated the factual basis for his plea was contained within the
police report, the preliminary hearing, and the information; thus, we take our facts from
those sources.

                                                             1
William Bishop’s residence with her brother, sister, and another friend. Around 10

people were at the party; they were drinking for several hours and playing drinking

games. At some point during the evening Bishop cut off the victim’s consumption of

alcohol because he believed she had drank too much; he carried her to his bedroom where

he placed her on the bed.

       The victim testified she was intoxicated and fell asleep. She awoke to find

defendant having sexual intercourse with her; her pants were down to her ankles. Her

brother walked into the bedroom. Defendant began digitally penetrating the victim. The

victim informed defendant she had to check on her brother; she got up and walked out of

the bedroom.

       The victim’s brother informed law enforcement he had walked into the bedroom

and saw defendant lying on the bed with the victim manipulating her vagina with his

fingers. The victim’s brother left the room upset because he initially believed the

encounter was consensual. However, the victim later advised him she had been sexually

assaulted. He tried to go back to the apartment to confront defendant, but the door was

locked.

       Bishop informed the investigating officer he worked with the defendant and

invited him to the party. He said the victim was intoxicated and he had offered her his

room for her to lie down. Once Bishop found out what had happened to the victim, he

attempted to return to his apartment, but the front door was locked. Defendant had

apparently fled out the back door.



                                             2
       The victim testified she had never before met defendant; the only prior contact she

had had with defendant was greeting him earlier that evening. After she left the

bedroom, she informed her brother and sister what had happened; she then went home.

The next day she went to the hospital where a nurse conducted a sexual assault

examination on her.

       After waiving his Miranda2 rights, defendant informed an investigating officer he

had been invited to the party by Bishop. He drank, played drinking games, and later went

into Bishop’s bedroom where he saw the victim passed out on the bed. Defendant did not

know the victim. Defendant said he laid down on the bed next to the victim, tapped her,

cuddled her, talked to her, kissed her, and fingered her. Defendant believed the encounter

was consensual and denied any penile penetration.

       On November 7, 2012, the People filed an information charging defendant with

rape of an unconscious person (count 1 – Pen. Code, § 261, subd. (a)(4))3 and sexual

penetration with a foreign object (count 2 -- § 289, subd. (d)). On January 10, 2013,

defendant pled guilty to the count 2 offense in return for an agreed upon three-year

probationary term requiring, among other terms, service of 365 days in jail, lifetime

registration as a sexual offender, and submission to an HIV test. As part of the taking of

defendant’s plea, the court asked defendant, “Do you understand that in addition to any

other punishment, that you will be required to pay a mandatory restitution fine of not less

       2   Miranda v. Arizona (1966) 384 U.S. 436.

       3   All further statutory references are to the Penal Code.


                                               3
than $280 nor greater than $10,000, and subject to a penal fine of up to $10,000.” As part

of his plea, defendant waived any right to appeal the judgment in his case. The court

dismissed count 1.

       The probation report prepared in advance of defendant’s sentencing recommended

a probationary term requiring defendant pay a $280 restitutionary fee. On February 7,

2013, the court sentenced defendant to three years probation with credit for 116 days.

The court ordered defendant pay a mandatory restitution fine of $280 pursuant to section

1202.4, subdivision (b)(1).4 On March 12, 2013, defendant filed the instant appeal from

“the Conviction and Sentence against him . . . .”

                                       DISCUSSION

       After defendant filed the notice of appeal, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396,

18 L.Ed.2d 493], setting forth a statement of the case, a brief statement of the facts, and

identifying one potentially arguable issue: whether the trial court abused its discretion in

imposing a mandatory restitution fine of $280, rather than $240 which was the operative

minimum fine effective on the date of the offense to which defendant pled.

       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

       4 Prior section 12022.4, subdivision (b)(1), effective on the date defendant
committed the offense to which he pled, required a minimum restitution fee of $240.
That section was changed effective January 1, 2013, to require a minimum, mandatory
fee of $280.

                                              4
independent review of the record and find no arguable issues. (People v. White (1997)

55 Cal.App.4th 914, 917 [Failure to object to amount of restitution forfeits any contention

on appeal fine was violative of ex post facto principles.].)

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                         J.

We concur:


RAMIREZ
                        P. J.


RICHLI
                           J.




                                              5
