People v. Barba CA4/2

I.

INTRODUCTION

A jury found defendant and appellant David Junior Barba guilty of sexual

penetration with a foreign object while the victim was unconscious of the nature of the

act (Pen. Code,1 § 289, subd. (d)). In a bifurcated proceeding, defendant admitted that he

had suffered a prior serious felony conviction (§ 667, subd. (a)) and two prior strike

convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). After the trial

court denied defendant’s motion for new trial and motion to strike the prior strike

convictions, the trial court sentenced defendant to 25 years to life with credit of

2,345 days for time served. The court also ordered defendant to pay a $300 restitution

fine (§ 1202.4, subd. (b)), a suspended $300 parole revocation fine (§ 1202.45, subd. (c)),

a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), and a $30 criminal

conviction assessment fee (Gov. Code, § 70373). The court struck the prior serious

felony conviction.

Defendant appeals from the judgment. Appointed counsel has filed a brief under

the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende), requesting this court to

conduct an independent review of the…