(Super. Ct. No. 09F08622)
The opinion of the court was delivered by: Blease, Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Adam Flynn entered negotiated pleas of no contest to two counts of forcible child molestation, two counts of child molestation, and one count of the attempted molestation of a 15-year-old more than 10 years younger than he was. He also admitted an allegation of a prior conviction for a "serious" felony that subjected him to alternative sentencing (Pen. Code, § 667, subd. (e).) The trial court sentenced defendant to the prison term stipulated in the plea, and dismissed the rest of the complaint. It limited presentence conduct credits to 15 percent of defendant's actual custody because the convictions included violent felonies. (Pen. Code, § 667.5, subd. (c)(6); § 2933.1, subd. (a) [imposing this limitation on conduct credits "[n]otwithstanding any other law"].)
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
The parties stipulated to the following recited factual basis for the pleas. In September 2009, defendant forcibly placed his mouth on the vagina of the 13-year-old victim, and forcibly placed her hand on his penis. He also placed his mouth on her breast and inserted his finger into her vagina. (The summary of the police report states that the victim was the niece of defendant, and the conduct had taken place in a backyard play house after midnight.) In October or November 2008, he had attempted to commit an unspecified lewd act with a 15-year-old victim who was more than 10 years younger than he was. (The summary of the police report states that the second victim was the first victim's older sister, and the conduct had taken place in a motel room to which he had taken her.) Defendant had a conviction in 1995 for child abuse with a finding of great bodily injury.
The original November 2009 complaint charged defendant with three counts of forcible molestation of the 13-year-old, and four counts of nonforcible molestation. After a number of settlement conferences, the prosecutor submitted an amended complaint at a hearing in September 2010 that added the count involving the other victim and the recidivist allegation. The magistrate ordered it filed. The parties then informed the magistrate they had reached the disposition summarized above.
Before accepting the pleas and admission, the magistrate determined that defendant was entering voluntary and intelligent pleas after adequate consultation with counsel, confirmed that defendant was waiving his right to a preliminary hearing and his constitutional rights, and explained the consequences of the pleas (noting a four-year period of parole). According to the minute order, the magistrate then certified defendant to the superior court for sentencing.
At sentencing, defendant (through counsel) advised the trial court of his desire to withdraw his plea, although he did not articulate any legal basis for the motion (saying later at the close of sentencing only that he felt he should be allowed to go to trial). After sentencing defendant in accordance with the plea agreement, the trial court imposed a $200 restitution fine (along with the stayed identical fine for a violation of parole), and then said "Any other mandatory fines are imposed. Any discretionary fines are stricken," without specifying any other amounts or statutory bases. It advised defendant that he was in fact subject to a term of parole of up to 20 years, subject to a reduction in the discretion of the Board of Prison Terms. According to the minute order, the trial court dismissed the other counts.
Defendant filed a request for a certificate of probable cause (CPC) with his notice of appeal. The trial court denied the request.*fn1
We appointed appellate counsel for defendant. Counsel had originally filed an opening brief challenging a clerical error in the abstract of judgment that listed the restitution and stayed revocation fine as $8,200 rather than $200. However, we granted his request to withdraw that brief, after which counsel obtained a corrected abstract from the trial court. Counsel has now filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 ...