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The People v. Richard Gordon Torrey Iii

January 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD GORDON TORREY III, DEFENDANT AND APPELLANT.



Super. Ct. No. CRF086032

The opinion of the court was delivered by: Butz ,j.

P. v. Torrey CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Richard Gordon Torrey III was charged with assault with intent to commit lewd and lascivious acts upon a child during the commission of a first degree burglary (Pen. Code, § 220, subd. (b)),*fn1 first degree burglary (§ 459), three counts of lewd or lascivious acts upon a child who is 14 or 15 years old (§ 288, subd. (c)(1)), and sexual battery (§ 243.4, subd. (a)). He pleaded no contest to first degree burglary and sexual battery. The court sentenced defendant to a stipulated term of seven years in state prison.

Defendant obtained a certificate of probable cause. (§ 1237.5.) On appeal, he contends the trial court erred in failing to hold a competency hearing, he received ineffective assistance of conflict counsel, and the court was required to hold a Marsden*fn2 hearing. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 22, 2008, around 3:00 a.m., a 15-year-old girl was sleeping in her family's apartment. She heard someone calling her name and awoke to find defendant standing naked next to her bed. Defendant began to kiss and suck on her neck; she tried to resist by swatting at him and lying on her stomach. He then attempted to disrobe the girl and sexually assault her. After the girl shrugged him off, defendant picked up his clothes and left.

Defendant told the police he had been drinking that day, but had not been drunk. He admitted going to the residence, kissing the girl on the cheek, straddling her while naked, and putting his penis on her clothed buttocks and vagina, saying, "I want you, I need you." Defendant stopped after he realized there was not going to be any intercourse. He admitted being attracted to girls as young as 14.

On March 25, 2009, defendant entered into a plea agreement in which he pleaded no contest to first degree burglary and felony sexual battery, with the remaining charges to be dismissed, and a stipulated sentence of seven years in prison.

On April 20, 2009, the court received a letter from defendant, dated April 13, 2009, in which he denied committing the crimes and contended he had been pressured to enter the plea. According to defendant, his attorney told him he had no chance of winning at trial, was not going to subpoena any of his work or mental health records, and was not going to call any of his friends as witnesses.

Defendant also claimed he suffered from depression and bipolar disorder; he had been seeing a therapist as well as a psychiatrist and had been prescribed medication. Defendant stopped taking his medication, which made him more irrational and depressed. This was also the reason for his "5150"*fn3 and his two-month medical leave from work. Defendant thought his mental health should be addressed at sentencing.

On April 23, 2009, the court appointed conflict counsel for defendant to make a motion to withdraw his no contest plea. The court received a letter from defendant's former mother-in-law on May 8, 2009. The letter asserted that a psychiatrist had been treating defendant for bipolar disorder. He was not being treated for his illness in jail, and defendant's letters to her exhibited severe depression. Defendant wanted a psychiatric evaluation or contact with his treating psychiatrist.

At the hearing on defendant's motion to withdraw his plea, conflict counsel called defendant's trial counsel, who testified that defendant understood the People's offer, and had asked whether it would make him eligible for commitment under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Counsel told defendant it would not, but conviction on some of the other charges would make him eligible under the SVPA.

Trial counsel testified that she discussed the plea with defendant on four separate occasions. After telling counsel he would accept the offer, defendant called back to ask about fines in an unrelated case. He initially expressed reservations about the offer because it would jeopardize his being a father for some time, and would probably bar him from his current employment as a social worker for ...


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