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The People v. Rock Anthony Almeida

November 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROCK ANTHONY ALMEIDA, DEFENDANT AND APPELLANT.



(Super. Ct. No. MF032677A)

The opinion of the court was delivered by: Robie , J.

P. v. Almeida

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Rock Anthony Almeida was charged with committing a forcible lewd act upon a child under the age of 14 years in violation of Penal Code*fn1 section 288, subdivision (a) (among other charges). The complaint alleged that the act occurred sometime between August 1988 and August 1996. Defendant pled guilty to the charge.

Defendant contends for the first time on appeal that the lewd act charge, as pled, was facially time-barred, and because the record fails to disclose whether the charge was factually time-barred, the matter should be remanded to the trial court for a hearing to determine whether the charge was factually time-barred, and if so, to allow him to withdraw his plea.

Defendant is correct to this extent: given the eight-year date range for the offense pled in the complaint (August 1988 to August 1996), it cannot be determined from the face of the complaint whether the charge was timely filed. Thus, on its face, the lewd act charge was potentially time-barred. The record establishes, however, that the charge was in fact timely filed. Accordingly, there is no basis to remand the case for a hearing on the timeliness of the charge or to allow defendant to withdraw his plea.

Defendant further argues that the trial court erred in imposing an $80 court security fee because under section 1465.8, the applicable fee at the time of his conviction was only $30 per conviction. Defendant is correct. We will therefore modify the judgment to reflect the correct court security fee of $60 for defendant's two convictions.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, on January 2, 2010, a Manteca Police Officer was assigned to a molestation case that occurred over 15 years earlier. The officer interviewed four victims, all of whom declared that defendant had molested them. Specifically, victim three (Stephanie Doe) stated that defendant had molested her between the ages of 6 and 13. Defendant was subsequently arrested.

On January 7, 2010, defendant was charged with four counts of continuous sexual abuse of a child and two counts of committing a lewd and lascivious act upon a child. As relevant here, one of the lewd acts (count four) alleged that defendant committed a forcible lewd act upon Stephanie Doe "[o]n or about August 1988 through August 1996."

Defendant entered a plea of guilty to lewd acts (count four) and one of the continuous sexual abuse charges, and the remaining charges were dismissed. According to the prosecutor, the factual basis for the plea to the lewd act charge was that "[t]here was a time between either August of '88 through August of 1996 . . . in which the defendant had [Stephanie Doe] rub his penis until he ejaculated . . . ." Defendant agreed that the facts as stated by the prosecutor constituted the factual basis for the plea.

The trial court sentenced defendant to 12 years in prison for the continuous sexual abuse charge and a consecutive eight-year sentence for the lewd act charge. As part of his sentence, the court ordered defendant to pay certain fees, which ...


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