THE PEOPLE v. AMADO SALDIVAR ARMAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Defendant, Amado Saldivar Armas, was convicted of one count of a lewd or lascivious act (Pen.Code, § 288, subd. (a)) and one count of a lewd or lascivious act by force (Pen.Code, § 288, subd. (b)(1)).¹  He appealed and on March 8, 2010, we filed our opinion reversing the conviction for a lewd and lascivious act by force.   The People were given the option of retrying defendant on both counts, or proceeding as if the remittitur constituted an affirmance of the conviction of one count of a lewd or lascivious act.   The People elected to not retry defendant and the court resentenced him.

Defendant's appointed counsel on appeal has filed an opening brief appealing from the sentencing hearing that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court.   In addition, defendant was invited by letter from this court to submit additional briefing and was informed that if we did not hear from him within 30 days, we would assume he did not have anything to add.   That time period has passed and defendant has not filed anything with this court.

DISCUSSION

We have taken judicial notice of the file in the previous case, People v. Armas (Mar. 8, 2010, F056887) [nonpub. opn.]. The facts and procedural background are summarized in detail in our previous opinion;  we will not repeat them here.   Briefly stated, defendant and Olivia had a child together.   Although they did not live together, defendant was frequently at Olivia's house.   The victim, S.R., is Olivia's daughter from a prior relationship.   S.R. accused defendant of committing numerous sex acts against her on various occasions and at various locations.   Defendant was tried and convicted of one count of having committed a lewd and lascivious act and one count of having committed a lewd and lascivious act by force, with S.R. as the victim of both counts.

In defendant's first appeal, we found error in the failure to give a unanimity instruction as to both counts and error affecting the lewd and lascivious act by force conviction because the court failed to instruct on the lesser included offense of a lewd and lascivious act.   We found these errors to be prejudicial.

The case was remanded, giving the People the option of retrying both counts, or simply proceeding to sentencing on only one conviction—a lewd and lascivious act conviction.   The People chose to not retry defendant and on July 19, 2010, the trial court sentenced him to prison for the middle term of six years for his lewd and lascivious act conviction.

In addition, the court imposed a security fee (§ 1465.8) and a conviction fee (Gov.Code, § 70373).   The court ordered defendant to pay restitution fines pursuant to sections 1202.4, subdivision (b), and 1202.45.   Direct victim restitution was ordered under section 1202.4, subdivision (f).  Defendant was ordered to be tested for AIDS (§ 1202.1) and was ordered to register as a sex offender (§ 290).   He was given custody credits of 1,436 days.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All future code references are to the Penal Code unless otherwise noted..  FN1. All future code references are to the Penal Code unless otherwise noted.