People v. Diaz CA6 ( 2015 )

Filed 10/29/15 P. v. Diaz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041541
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1243943)
v.
DANIEL TORRES DIAZ,
Defendant and Appellant.
Defendant Daniel Torres Diaz pleaded no contest to: Count One—committing a
lewd or lascivious act on a child by force (Pen. Code, § 288, subd. (b)(1)); 1 Count
Three—contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a));
Count Four—going to an arranged meeting place to meet with a minor with the intent to
commit a sexual offense (§ 288.4, subd. (b)); and Count Five—possessing matter
depicting a minor engaging in sexual conduct (§ 311.11, subd. (a)). In accord with a plea
agreement, the trial court denied probation and sentenced defendant to a term of eight
years eight months.
We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief stating the case and the facts, but raising no specific issues on
appeal. We notified defendant of his right to submit written argument on his own behalf
1
Subsequent undesignated statutory references are to the Penal Code.
within 30 days. That period has elapsed, and we have received no written argument from
defendant. We have reviewed the entire record under People v. Wende (1979) 25 Cal. 3d
436 (Wende). (See also People v. Kelly (2006) 40 Cal. 4th 106.) We conclude there is no
arguable issue on appeal, and we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Defendant was a 50-year-old day laborer at the time of the offenses. On October
28, 2012, C.D., a 12-year-old boy, was walking to a nearby store with a friend when
defendant approached the two boys and offered them money. C.D’s friend accepted an
unknown amount of money and apparently received defendant’s phone number. After
the friend used C.D.’s phone to call defendant, defendant repeatedly called C.D. and
asked to meet with him. C.D. and his brother recorded one of the conversations, in which
defendant offered to give C.D. gifts and money if C.D. agreed to “be with him.”
On the same day, defendant approached 10-year-old J.D. outside the same store
and offered him money. When J.D. declined the offer, defendant grabbed the handlebars
of J.D.’s bicycle and pulled J.D. to defendant’s nearby residence. Outside the residence,
defendant told J.D., “If you want money, you have to spend time with me.” J.D. again
declined. Defendant let J.D. go only after J.D. agreed to bring his friends to defendant’s
residence. J.D. subsequently told police defendant had taken him into the residence
before J.D. ran away.
The police arrested defendant and interrogated him in custody. On defendant’s
cell phone, police found a screen saver photo of a young boy approximately 14 to 16
years old dressed in underwear. A further search of defendant’s phone revealed 350
photos, most of which showed young boys aged 12 to 16 years. Police also found a text
message with a “selfie” photo of a 12- or 13-year-old boy exposing his penis.
2
The factual narrative is based on the facts set forth in the probation report.
2
In November 2012, the prosecution charged defendant by information with five
counts: Count One—kidnapping a person under 14 (§ 207, subd. (a), 208, subd, (b));
Count Two—exhibiting harmful matter to a minor (§ 288.2, subd. (a)); Count Three—
contacting a minor with the intent to commit a sexual offense (§ 288.3, subd. (a)); Count
Four—going to an arranged meeting place to meet with a minor with the intent to commit
a sexual offense (§ 288.4, subd. (b)); and Count Five—possessing matter depicting a
minor engaging in sexual conduct (§ 311.11, subd. (a)).
Defendant and the prosecution reached a plea agreement whereby the prosecution
moved to dismiss Count Two and amended Count One, changing it from kidnapping to
committing a lewd or lascivious act on a child by force. Defendant agreed to plead no
contest to amended Count One and to the remaining charges in exchange for a sentence
of eight years eight months. On August 29, 2014, defendant pleaded no contest to the
charges as agreed upon.
On October 7, 2014, just before the sentencing hearing, the trial court denied
defendant’s request to withdraw his plea. The court also denied defendant’s request to
replace his counsel under People v. Marsden (1970) 2 Cal. 3d 118 (Marsden). The court
then sentenced defendant to eight years eight months in prison.
II. DISCUSSION
We reviewed the entire record under Wende, supra, 25 Cal. 3d 436. We find
defendant was adequately advised of his rights and the consequences of his plea.
Defendant freely, knowingly, and intelligently waived his rights and entered his plea.
The trial court properly denied defendant’s motions to withdraw his plea and to replace
his counsel under Marsden. No sentencing error appears. We conclude there is no
arguable issue on appeal.
III. DISPOSITION
The judgment is affirmed.
3
_______________________________
Márquez, J.
WE CONCUR:
______________________________
Rushing, P. J.
_______________________________
Grover, J.
No. H041541
People v. Diaz