IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
November 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD PAUL POWELL, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM031556)
The opinion of the court was delivered by: Blease, Acting P. J.
P. v. Powell
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal after resentencing on remand and pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On September 25, 2009, 13-year-old K. W. and 11-year-old S. W. reported that defendant Richard Paul Powell had been molesting them for years, beginning when each girl was about eight years old. Each girl reported that the molestations occurred several times and consisted of inappropriate touching and rape.
Defendant entered a negotiated plea of guilty to continuous sexual abuse of K. W., a child under the age of 14 years (Pen. Code, § 288.5, subd. (a); count 1) and to lewd and lascivious conduct with a child under the age of 14 years, S. W. (Pen. Code, § 288, subd. (a); count 3), in exchange for a sentencing lid of 24 years and dismissal of the remaining count and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The trial court imposed the upper term of 16 years on count 1 and a full consecutive upper term of eight years on count 3. Defendant appealed, and in People v. Richard Paul Powell (Dec. 28, 2010, C064814) [unpub. opn.], this court determined that the trial court had erroneously concluded that full-term consecutive sentences were mandatory under Penal Code section 667.6, subdivision (d), and thus failed to exercise sentencing discretion. The matter was remanded for resentencing.
On remand, the trial court imposed the upper term of 16 years for count 1 and a consecutive one-third the midterm or two years for count 3. In imposing the upper term for count 1, the court found that defendant was not truthful or remorseful, he minimized his actions, he violated a position of trust, and the evidence supported actual penetration. In imposing a consecutive one-third the midterm for count 2, the court noted that the offense involved a different victim.
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. (Wende, supra, 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. More than 30 days elapsed, and we received no communication from defendant. 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.
We concur: BUTZ , J. HOCH , J.
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