The opinion of the court was delivered by: Robie, 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Clifford Sumner pled guilty to two counts of lewd and lascivious acts on a child in exchange for the dismissal of the remainder of the charges and consideration of probation after a psychological evaluation. Defendant agreed to a suspended sentence of 10 years if granted probation and a term of 8 years if sentenced to prison. The trial court denied probation and imposed the agreed prison term.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106.
The stipulated factual basis for defendant's offenses was the transcript of the preliminary hearing in this matter. The victim was born in September 1995. Defendant is the brother of her mother's boyfriend, and was born in April 1981. In the evening after a family barbeque in May 2009, the victim had gone to lie down in her room because she was not feeling well. Defendant came into her room. He began to kiss her, then fondled her breasts and exposed buttocks, and ultimately had intercourse with her. When questioned, defendant eventually admitted having intercourse with the minor.
The complaint alleged one count each of lewd and lascivious acts on a child, unlawful sexual intercourse, and sexual battery based on this May 2009 incident. The information alleged four counts of lewd and lascivious acts on a child based on the May 2009 incident, as well as three additional counts based on earlier touchings that the victim had reported to a detective (to which the detective had testified at the preliminary hearing).
At the trial readiness conference, the parties announced a negotiated disposition. Before accepting his guilty pleas, the court determined that defendant was making a voluntary and intelligent change of plea after consulting with his attorney and had defendant acknowledge his execution of a written waiver of his constitutional rights and awareness of the collateral consequences of the plea.
A psychologist filed his evaluation of defendant with the court. He concluded defendant was not a pedophile but simply lacked maturity in decision-making and impulse control (finding defendant akin to a 15 year old). The evaluation did not find any obstacles to defendant's being amenable to participation in a program for sex offenders as a condition of probation.
After receiving the evaluation and the probation report (which recommended denial of probation), the trial court held a hearing on the issue of whether to grant probation, at which it received the testimony of witnesses in defendant's behalf. It noted the favorable evaluation had to be taken into context because candidates referred for evaluation generally would be those who had fair or good prospects of success. It stated that it had felt from the outset that the nature of the crime did not warrant probation, but had approached the matter with an open mind. It was also concerned that at 23, defendant had fathered a child with a 16 year old with whom he had a dating relationship. Finally, the trial court was concerned with the impact on the victim of a grant of probation because she and defendant lived in a very small community with many interconnections. (The probation report noted the community had ostracized the victim's family.)
The trial court denied probation and imposed the negotiated term. Its minute order recited the amounts and statutory basis for the various fines and fees that the court imposed but the abstract of judgment only incorporated the calculation of the sex offender fee (Pen. Code, § 290.3) by reference. Defendant did not file a request for a certificate of probable cause in connection with his notice of appeal.
We appointed appellate counsel for defendant. Counsel has 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. (People v. Wende, supra, 25 Cal.3d at p. 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant. Having undertaken an ...