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The People v. Bernardino Santillan Martinez

February 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BERNARDINO SANTILLAN MARTINEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F01941)

The opinion of the court was delivered by: Hull , Acting P. J.

P. v. Martinez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

As part of a bargain, defendant Bernardino Santillan Martinez pleaded no contest to two counts of committing a lewd act with a minor aged 10 or younger, in exchange for the dismissal of eight other counts and a stipulated prison sentence of 30 years to life. (Pen. Code, § 288.7, subd. (b); undesignated statutory references that follow are to the Penal Code.) The trial court sentenced defendant in accordance with the bargain, and defendant timely filed this appeal and obtained a certificate of probable cause.

On appeal, defendant contends the judgment must be reversed because the trial court erred in connection with his motion to withdraw his plea. For purposes of this appeal, we assume the trial court made a procedural error by appointing counsel for the limited purpose of investigating a motion to withdraw the plea, and then reinstating prior counsel after the motion was denied. But we find no prejudice. We note though that the abstract of judgment must be corrected in several respects. We affirm the judgment with directions to the trial court to prepare a new abstract.

FACTS AND PROCEEDINGS

An amended complaint filed on July 7, 2009, charged defendant with 10 sexual offenses against the victim, aged 10. On that date, defendant pleaded no contest to two counts of committing a lewd act on a minor aged 10 or younger, in exchange for the dismissal of the other eight counts, and a stipulated prison sentence of 30 years to life.

At the plea hearing, defense counsel Joseph Farina stated he had tried to negotiate a determinate term, but defendant had been caught molesting the child, and both he and the victim told the police that defendant had orally copulated the victim many times. Mr. Farina had explained the consequences of the plea---including a certainty of deportation---to defendant:

"And it is his decision to accept the D.A.'s offer. I can't recommend it. But Mr. Martinez feels there is no reason to continue to draw these proceedings out.

"I want on the record that I can't necessarily go along with this deal because it's a life offer.

"It is Mr. Martinez's case, and he is wishing to accept the D.A.'s offer."

After defendant told the trial court that he wanted to accept the offer for a prison sentence of 30 years to life, the trial court inquired of defendant in part as follows:

"You understand that your attorney recommends against entering this plea on these conditions.

"But the final decision is yours, Mr. Martinez, and that's what you want to do?

"Is that correct?

"THE DEFENDANT: Well, there isn't any other solution.

"THE COURT: All right. That's what you want to do then today?

"THE DEFENDANT: Yes."

While making the standard advisements for a no contest plea, the trial court ascertained that Mr. Farina had explained the charges and possible defenses to defendant, and defendant had not been threatened or promised anything other than ...


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