IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANDREW JACKSON ARMSTEAD, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01248)
The opinion of the court was delivered by: Duarte J.
P. v. Armstead 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a result of a December 1981 oral copulation conviction, Penal Code section 290*fn1 required defendant Andrew Jackson Armstead to register as a sexual offender.*fn2 Sometime between January 15, 2010, and February 20, 2010, defendant changed his address. For five working days thereafter, he failed to report the move, in person, to the law enforcement agency with whom he had last registered.
Defendant pled no contest to failing to inform law enforcement of the new address (§ 290.018, subd. (b)) and admitted the 1981 serious felony conviction (§ 667, subds.
(b)-(i)). In exchange, three prior serious felony allegations were dismissed.
Defendant was sentenced to state prison for a term of four years, consisting of twice the middle term of two years; awarded 102 days of custody credit and 50 days of conduct credit;*fn3 and ordered to pay a $200 restitution fine (§ 1202.4) and a $200 restitution fine, suspended pending successful completion of parole (§ 1202.45). Defendant's request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief in the form of a seven-page letter requesting "immediate relief from" the provisions of section 3003.5, subdivision (b), which make it "unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather." Defendant did not seek this relief in the trial court, which thus had no occasion to consider it. We decline to consider this request by defendant, raised for the first time on appeal from the judgment of conviction. Further, our review of the record reveals no error in the trial court proceedings.
Defendant also asks this court to "recognize" that "his incarceration is do [sic] to the enforcement of his parole agent forcing him to register P.C. 290 a transient resulting in his current incarceration." We construe these remarks as a contention that, as a result of the parole agent's action, defendant should be permitted to withdraw his no contest plea. The contention is barred by the denial of a certificate of probable cause. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68,
Defendant lastly asks this court to correct certain portions of the appellate record. The complaint alleged that defendant's 1981 prior conviction consisted of "[o]ral copulation of a person under 18 in violation of Section 288a(c)." (Italics added.) Similarly, the statement of factual basis for the plea provides that in December 1981 defendant was "convicted of the crime of oral copulation of a person under 18, in violation of Penal Code Section 288a(c)." (Italics added.) However, the probation report makes plain that, although defendant's act was accomplished by force, the victim was defendant's wife or girlfriend; she was clearly not a child under 18, as she had a nine-year-old child of her own. These incorrect descriptions of defendant's conduct, however, do not affect the relevant crime of conviction or result in any error that need be corrected. As noted by defendant's appellate counsel, the version of section 288a, subdivision (c), in effect in 1981 included either acts accomplished by force or those committed with a child. (Stats. 1980, ch. 915, p. 2913.) Although defendant's conduct was erroneously described as encompassing the latter, it clearly encompassed the former. In any event, the present sentencing minutes and abstract of judgment do not misidentify the 1981 offense as having involved a child victim. No correction is necessary.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
HULL , Acting P.J.