THE PEOPLE v. ROBERT LOUIS JACKSON JR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. ROBERT LOUIS JACKSON, JR., Defendant and Appellant.

F060597

Decided: March 25, 2011

 * APPEAL from a judgment of the Superior Court of Fresno County.   Don Penner, Judge.   Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

This is an appeal from a judgment imposed after defendant Robert Louis Jackson, Jr., pled no contest to one count of violation of Penal Code section 288.5, subdivision (a), continuous sexual abuse of a child.1  We affirm the judgment.

Defendant's appellate counsel filed a brief in this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436.   Counsel summarized the record, stated that defendant had been notified by counsel of his right to raise any issues through supplemental briefing that he might wish to file in this court, and requested this court independently review the record to determine whether there are arguable issues on appeal.   We have done so.  (See People v. Kelly (2006) 40 Cal.4th 106, 124.)

For more than three months prior to August 5, 2009, defendant had substantial sexual contact with his stepdaughter.   On August 5, 2009, defendant had sexual intercourse with her.   She was 13 years old at the time.

Defendant was charged in an amended complaint with one count of violation of section 288.5, subdivision (a) and one count each of violation of sections 288, subdivision (a) and 289, subdivision (j).  Pursuant to a negotiated plea, defendant pled no contest to violation of section 288.5, subdivision (a).   Pursuant to the plea agreement, the remaining counts were dismissed and the court ordered an evaluation pursuant to section 288.1.2  The appointed psychiatrist submitted a written report to the court;  after receiving further information, the psychiatrist submitted two additional supplemental reports.

At the sentencing hearing on June 2, 2010, the trial court found that defendant was not a suitable candidate for a grant of probation and imposed the middle term of 12 years in prison.

Defendant filed a timely notice of appeal;  he did not seek a certificate of probable cause.  (See § 1237.5.)

On October 1, 2010, defendant's appointed appellate counsel filed a brief, as described above, raising no issues.   This court, on that same date, notified defendant by mail of his right to submit to the court within 30 days any issues he wished to raise on the appeal.

DISCUSSION

In a letter filed November 3, 2010, defendant contends the sentence imposed violated the terms of his plea bargain and that the report of the probation officer contained factual inaccuracies.   Defendant asserts that the deputy district attorney represented to the court that he would recommend that the court follow any recommendation contained in the section 288.1 evaluation but that, ultimately, a different deputy district attorney appeared at the sentencing hearing and requested a sentence in excess of the evaluator's recommendation.

We have examined the reporter's transcript of the change of plea hearing and the form filed by defendant at the time of that hearing.   There was no stated agreement concerning sentencing;  the prosecutor merely agreed to amend the complaint to remove an allegation that would have prevented consideration for probation, and he fulfilled that agreement.   Further, at the time of the sentencing hearing (before the judge who accepted defendant's change of plea), no one (including defendant, who spoke at the hearing) suggested that the plea bargain had included restrictions on the court's sentencing choices.   The record does not provide a basis for defendant's claim that the middle term prison sentence violated a condition of the plea agreement.

We have also reviewed the report of the probation officer and defendant's objections to it.   The primary area of dispute concerned when the molestation started:  whether defendant began molesting the victim in 2006, 2008 or 2009.   At the sentencing hearing, the trial court stated that it had reviewed defendant's objections to the report.   The court stated its reasons for choosing the middle term of imprisonment.   It is clear from that statement that the court considered the disputed portions of the report to be inconsequential.   Defendant's failure to understand and accept the seriousness of the offense regardless of the age of the victim at the inception of the crime was the critical component of the court's sentencing decision.

Defendant's claims of error are meritless and our review of the record on appeal discloses no other arguable issues of law or fact.  (People v. Kelly, supra, 40 Cal.4th 124.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All code references are to the Penal Code..  FN1. All code references are to the Penal Code.

FN2. Section 288.1 states:  “Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.”.  FN2. Section 288.1 states:  “Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.”

THE COURT