Filed 12/20/19 P. v. Pacheco CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAVIER EFREN PACHECO,

Defendant and Appellant.

H046874

(Santa Clara County

Super. Ct. No. F1763989)

Appellant Javier Efren Pacheco sexually assaulted his stepdaughter on two occasions when she was 9 or 10 years old and one time when she was approximately 14 years old. Although his stepdaughter did not tell anyone about the offenses when they occurred, several years later she reported them to the Morgan Hill Police Department. In a phone call she subsequently made to Pacheco, he admitted he had touched her “ ‘private parts’ ” when she was 10 years old and apologized to her.

Pacheco was charged by complaint with two counts of lewd or lascivious acts on a child under 14 (Pen. Code, § 288, subd. (a); counts 1 & 2) and one count of lewd or lascivious acts on a child aged 14 or 15 (§ 288, subd. (c)(1); count 3). He was arraigned on the complaint on September 11, 2017.

On April 18, 2018, represented by retained counsel, Pacheco pleaded no contest pursuant to a written plea agreement. The plea agreement, which a court certified interpreter translated for Pacheco from English to Spanish, stated that Pacheco would plead to all three counts in the complaint. It also provided that Pacheco would be sentenced to a three-year prison term. In section 17 of the written plea agreement titled “Registration,” Pacheco initialed above the checked box next to the following language: “Sex offender (PC 290) – I understand this registration requirement is for life.” In a section of the agreement titled “Defendant’s Statement and Plea,” Pacheco initialed next to the statement “I have read this form (or this form was read to me) and I have initialed each of the items that applies to my case. By putting my initials on this form, I am indicating I understand and agree with what is stated in each item I have initialed. [¶] I freely and voluntarily plead: [¶] No Contest.” (Some capitalization omitted.)

At the change of plea hearing, the trial court addressed Pacheco. Referring to the written plea agreement, the court asked Pacheco, “With the assistance of the court-certified interpreter, did you have enough time to go over that form with your attorney . . . ?” Pacheco replied, “Yes.” The court asked, “And if you had questions about the contents in that form, did you ask those questions?” Pacheco said, “Yes.” The court also asked if Pacheco’s lawyer had answered any questions that Pacheco had, and Pacheco again replied in the affirmative. Pacheco confirmed he had initialed and signed the plea agreement. In response to questioning by the court, Pacheco’s counsel stated that he had gone over the form with Pacheco and was confident that Pacheco understood everything in the form.

Pacheco pleaded no contest to counts 1, 2, and 3. The trial court found that Pacheco had “been fully informed of the charges that have been filed against [him], the elements of those charges, the possible defenses [he had] in this case, and also the consequences of [his] decision this afternoon to enter a change of plea.” The court also found that Pacheco knowingly, voluntarily, and freely waived his constitutional rights. The trial court asked Pacheco whether he had any questions or concerns, and Pacheco answered “No.” The trial court set a subsequent date for sentencing.

Approximately six months later, on October 3, 2018, the trial court appointed the public defender to represent Pacheco. The trial court noted that it had previously relieved Pacheco’s retained counsel at Pacheco’s request. At the October 3, 2018 hearing, Pacheco moved to withdraw his plea. Pacheco told the trial court that he wished to withdraw his plea because his lawyer had not informed him that he would be required to register as a sex offender under section 290. Pacheco stated that his attorney only told him “to sign up for three years, because if we went to trial, I was going to get more time.” The trial court asked Pacheco, “That’s all your attorney said to you?” Pacheco replied, “Yes.”

Pacheco’s former counsel, who had represented him when Pacheco entered into the plea agreement, was present at the October 3 hearing. The trial court asked the former counsel if he had advised Pacheco of all of his rights, including that Pacheco would have to register as a sex offender. The counsel answered “Yes” and stated, “In my view, sexual nature cases [sic] that require 290, it’s one of the primary issues that are important to clients, such as Mr. Pacheco. As a matter of practice, I always disclose, obviously, that they have to register as a 290 the rest of their lives, and I handle a lot of sexual assault cases.”

The trial court denied Pacheco’s motion to withdraw his plea under section 1018, finding there was “not good cause by clear and convincing evidence to have this Court withdraw [his] plea.”

On February 14, 2019, the parties appeared for sentencing. Through the public defender, Pacheco renewed his motion to withdraw his plea but did not provide any additional evidence or argument. The trial court denied probation and imposed a three-year term of imprisonment on count 1, and three-year terms each on counts 2 and 3, to run concurrently. The court awarded 524 actual days of custody credit and 78 days pursuant to section 2933.1, for a total of 602 days credit for time served. The trial court also ordered $3,240, an amount to which Pacheco stipulated, in victim restitution to be paid to the California Victim Compensation Board. The trial court imposed a restitution fund fine of $300 plus penalty assessment under section 290.3, ordered Pacheco to register under section 290, and issued a 10-year criminal protective order pursuant to section 136.2. Pacheco did not object to the fine imposed under section 290.3 or request a hearing on his ability to pay it. The trial court further found that Pacheco did not have the ability to pay the restitution fund fine, the court security fee, or the victim conviction fee and therefore waived them. (§§ 1202.4, subd. (b)(2), 1465.8; Gov. Code, § 70373.)

Pacheco filed a timely notice of appeal. He sought and received a certificate of probable cause, citing the trial court’s denial of his motion to withdraw his plea.

We appointed counsel to represent Pacheco on appeal. Appellate counsel filed an opening brief stating the case and the facts but raising no specific legal issues. Counsel has declared that he notified Pacheco both of his intention to request independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende) and of Pacheco’s right to file written argument on his own behalf. We notified Pacheco of his right to submit written argument on his own behalf but have received no response from him.

We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Concluding there is no arguable issue on appeal, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

_____________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H046874

People v. Pacheco