Filed 4/15/14 P. v. Gonzalez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B249907
(Super. Ct. No. 1366556)
Plaintiff and Respondent, (Santa Barbara County)
v.
PASCUAL LEYVA GONZALEZ,
Defendant and Appellant.
Pascual Leyva Gonzalez was charged with four counts of forcible oral
copulation (Pen. Code, § 288a, subd. (c)(2)),1 three counts of rape (§ 261, subd. (a)(2)),
two counts of forcible sodomy (§ 286, subd. (c)(2)), three counts of inflicting injury on a
cohabitant (§ 273.5, subd. (a)), two counts of making criminal threats (§ 422), child abuse
(§ 273a, subd. (a)), false imprisonment (§ 236) and kidnapping (§ 209, subd. (b)(1)). The
indictment included use of a deadly weapon (§ 12022, subd. (b)(1)), kidnapping (§ 667.8)
and one "strike" (§ 667.61) allegations.
1 All statutory references are to the Penal Code.
Gonzalez brought two unsuccessful Marsden2 motions, an unsuccessful
Miranda3 motion and a partially successful Pitchess4 motion. Shortly before trial,
Gonzalez rejected a plea offer of a 14-year prison term with dismissal of the sex-related
crimes. After two days of jury selection, Gonzalez waived his trial rights, and pled no
contest to three sex offenses occurring on November 17, 2010: two counts of forcible
oral copulation (§ 288a, subd. (c)(2)) and one count of rape (§ 261, subd. (a)(2)). The
remaining charges were dismissed.
The plea agreement allowed the trial court to impose a sentence of up to 24
years on the three counts. Gonzalez was told: "It's entirely up to [the trial judge] to
decide what your sentence would be. The minimum sentence you could receive would be
three years. The maximum sentence you would receive would be 24 years, and it will be
the Court who decides your sentence at your sentencing hearing." Gonzalez said he
understood. He also acknowledged his sentence was subject to the discretionary full-
term consecutive sentencing under section 667.6, subdivision (c).5
The trial court sentenced Gonzalez to 18 years in state prison. It designated
one count of forcible oral copulation as the principal term, imposed the eight-year, upper-
term sentence on that count, and added a two-year consecutive sentence on the rape count
under section 1170.1, plus a mandatory eight-year, full-term consecutive sentence on the
second oral copulation count under section 667.6, subdivision (d).6 Recognizing the
latter consecutive sentence may violate the plea agreement, it stated: "If I am in error . . .
I would still impose a full-term discretionary consecutive sentence under 667.6(c)
2 People v. Marsden (1970) 2 Cal.3d 118.
3 Miranda v. Arizona (1966) 384 U.S. 436.
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
5 Section 667.6, subdivision (c), states: "In lieu of the term provided in Section
1170.1, a full, separate, and consecutive term may be imposed for each violation of an
offense specified in subdivision (e) [including oral copulation] if the crimes involve the
same victim on the same occasion."
6 Section 667.6, subdivision (d), states: "A full, separate, and consecutive term
shall be imposed for each violation of an offense specified in subdivision (e) if the crimes
involve separate victims or involve the same victim on separate occasions."
2
because of the separate nature of the offenses. The crimes did involve separate acts of
violence." Gonzalez was awarded 902 days of custody credit.
After obtaining relief from default, Gonzalez filed a notice of appeal from
the sentence and plea. The trial court granted his request for a certificate of probable
cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
Gonzalez and the victim had a six-year relationship. They lived together
and had a young child. On November 17, 2010, Gonzalez arrived home to find the
victim talking with one of his friends. Gonzalez assaulted the friend and accused the
victim of cheating. Saying she had to be punished, Gonzalez drove the victim and their
child to a remote park, where he forced her to engage in intercourse and oral copulation
with him. She begged him to stop. When he was done, he whipped her with an electrical
cord and then hit her in the head with a solid object. After they got home, he again
forced her to orally copulate him.
The next day, Gonzalez slapped the victim several times and said he would
forgive her only if she arranged an orgy for him. He then forced her to have vaginal, oral
and anal sex with him. The abuse continued for three weeks, until Gonzalez told the
victim he had reported her to child welfare services and threatened to take the child away.
Her roommate convinced her to call the police.
Appointed counsel filed a brief raising no issues and requesting our
independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. On March 3,
2014, we notified Gonzalez that he had 30 days in which to advise us of any claims he
wished us to consider. He submitted a two-page letter brief.
Gonzalez asserts that even though the trial court told him the plea
agreement exposed him to a 24-year sentence, his "trial counsel . . . had previously
informed [him] that if [he] took the deal [he] would not receive the full 24 years but
would instead receive only 14 years." The record does not support this assertion.
Gonzalez acknowledged, orally and in writing, that the agreement exposed him to a 24-
year term. The only evidence of a 14-year deal involved the previously rejected offer.
3
Having examined the entire record, counsel's Wende brief and Gonzalez's
letter brief, we are satisfied appointed counsel has fully complied with his responsibilities
and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 123-124;
People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
4
Jean M. Dandona, Judge
Superior Court County of Santa Barbara
______________________________
California Appellate Project, Jonathan B. Steiner, Richard B. Lennon,
under appointment by the Court of Appeal; Pascual Leyva Gonzalez, in pro. per., for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
5