People v. Tucker CA5

Opinion

Filed 9/16/26 P. v. Tucker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F089946 Plaintiff and Respondent, (Super. Ct. No. F24908460) v. JONATHAN A. TUCKER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Robert Mangano, Judge. Ashwini Mate, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Franson, Acting P. J., DeSantos, J. and Sandhu, J. INTRODUCTION Appellant and defendant Jonathan A. Tucker (defendant) pleaded no contest to one count of oral copulation of a person under 17 years (Pen. Code,1 § 287, subd. (b)(1)) pursuant to a negotiated disposition for dismissal of other charges and probation. On appeal, appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplemental brief. We affirm. FACTS At defendant’s plea hearing, the parties stipulated to a factual basis for his plea based on the preliminary hearing transcript and police reports. The following facts are from the preliminary hearing held on January 7, 2025. July 2024 Incident K.B. testified that in 2023, she was living with her then-boyfriend but in a domestic violence situation. K.B.’s boyfriend kept control of her cellphone until he was arrested. When K.B. regained control of her device, she found social media messages from defendant, where defendant said he was going to send “cash apps” so he could perform sexual acts on K.B. K.B. knew defendant and members of his family, including defendant’s girlfriend. K.B. told defendant’s family members about the messages, that the messages were inappropriate, and he had to stop. K.B. testified that in July 2024, defendant called her and said he was with his girlfriend and they needed gas money. K.B. told defendant she had to hang up because her three-year-old daughter was crying, and to send her a message. Immediately after K.B. ended the call, defendant sent her the following message: “[C]an I give you $200 to eat your daughter’s pussy.”

1 All further statutory citations are to the Penal Code.

2. K.B. said she “saw red” because of this message. K.B. sent a reply to defendant that he was a terrible person “who deserves to be put away behind bars for life,” and not to message her ever again. K.B. contacted the police, reported defendant’s message about her child, and provided the message from her phone. Detective Emily Eide of the Clovis Police Department interviewed K.B., and determined the message was sent from an account with an IP address at a house on Paul Avenue in Clovis. Defendant lived at that address with his girlfriend and their children, and he was arrested there. December 2024 Sexual Assault On December 4, 2024, a woman contacted the Clovis Police Department and reported that her granddaughter, Jane Doe, was sexually assaulted. Officer John Montgomery responded to the call and interviewed Jane Doe, who was 17 years old. Jane Doe was crying and upset, showed the officer a series of text messages, and explained what happened to her. Jane Doe said she was walking around her neighborhood and posting flyers about a lost pet. Her cellphone number was on the flyers. Jane Doe answered a call from an unfamiliar number, and a male voice asked if she had a boyfriend. Jane Doe said “no,” the male said “good,” and he ended the call. Jane Doe said shortly after the call ended, she received a text message from the same phone number. The message stated the person wanted to “chill” with her and be her boyfriend. Jane Doe texted back and asked if the person had any information about her missing cat. Jane Doe also texted that she was 17 years old. The other person wrote back: “ ‘Can we chill. I can eat your pussy, lick your ass.’ ” Jane Doe sent a reply, “ ‘We don’t really know each other. You literally just called me. You’re also not telling me how old you are. I don’t even know what you look like.’ ”

3. Jane Doe said she exchanged additional messages with the person and they agreed to meet. Jane Doe never agreed to have sex with him. Jane Doe eventually met a man at a particular location on the street, and she later identified him as defendant. Jane Doe said she walked around with defendant and followed him to a house on Paul Avenue in Clovis. Jane Doe hung around with defendant in the garage, played with a dog, and they talked as defendant went in and out of the house. Jane Doe said defendant escorted Jane Doe to the side of the house and opened a sliding door to go inside. Jane Doe went inside and discovered the door led directly to a master bedroom and attached bathroom. Jane Doe said she entered the bedroom and bathroom. Defendant went into the bathroom with her and slapped her rear end. He closed the door and stood in front of it. Defendant’s phone rang, and he took the call while he took off all his clothes. Jane Doe said that when he undressed, she saw that defendant had an ankle monitor on his leg and a large scar that looked like a bump on his right rib cage. Jane Doe said defendant continued his phone conversation and got down on the floor. Defendant was between Jane Doe and the bathroom door. He pointed in a downward fashion and signaled at her to remove her pants. Jane Doe removed her pants but kept her underwear on. Defendant pointed down to the floor and gestured to remove her underwear. Jane Doe said defendant was still talking on his phone when he grabbed her ankle, pulled her closer to him, reached up to her body, and pulled down her underwear. Jane Doe said she could feel defendant licking her vagina. Defendant got up from the floor, left the bathroom, and closed the door. Defendant returned to the bathroom within seconds, closed the door, and continued his phone conversation. Jane Doe was sitting on the floor, and defendant grabbed the back of her head, pulled her head toward his body, and forced his penis into 4. her mouth for her to perform two acts of oral copulation. When defendant finished, he left the bathroom and closed the door. Jane Doe said defendant quickly returned to the bathroom again. He pulled her toward him and forced Jane Doe to get on her hands and knees. He pushed her legs apart and she felt “something” touch her rear area. Jane Doe said defendant again walked out of the bathroom but left the door open. She quickly dressed, ran out of defendant’s house, and went to her grandmother’s house. Jane Doe said she did not want to perform any of the sex acts, she did not know who defendant was, and she was afraid of him throughout the entire incident. Montgomery testified Jane Doe pointed out the house where this happened, on Paul Avenue in Clovis. Montgomery determined defendant was connected with that address, and that there was a pending open case against him. Later that day, Montgomery met with Jane Doe and asked her to review a photographic lineup. Montgomery testified Jane Doe had a panic attack, she could not stop crying, and she was too emotional to identify anyone. Eide subsequently conducted another interview with Jane Doe, who stated that when she went into the bathroom, defendant closed the door behind her and blocked it with his body. Eide showed another photographic lineup to Jane Doe, and she immediately identified defendant as the man who assaulted her in the bathroom. Eide testified the house on Paul Avenue was associated with the charges against defendant based on K.B.’s report. Eide determined defendant had the ankle monitor because he was placed on pretrial release after those charges were filed against him. Eide checked the GPS coordinates from defendant’s ankle monitor, and the coordinates confirmed Jane Doe’s statements about the time, date, and location where she met defendant on the street. Eide obtained home security videos from neighbors around 5. defendant’s house, and found videos that showed defendant and Jane Doe walking together toward, and then in front of, defendant’s house on Paul Avenue. PROCEDURAL BACKGROUND On April 2, 2025, a first amended information was filed in Fresno County Superior Court charging defendant with committing the following offenses against Jane Doe, based on the sexual assault in the bathroom, on or about December 4, 2024: count 1, contact or communication with a minor with the intent to commit a sexual offense (§ 288.3, subd. (a)); count 2, oral copulation of a person under 17 years (§ 287, subd. (b)(1)); count 3, forcible oral copulation with a minor who is 14 years of age or older (§ 287, subd. (c)(2)(C)); and count 4, false imprisonment by violence (§ 236). In count 5, defendant was charged with contact or communication with a minor, Jane Doe 2, with intent to commit a sexual offense, on or about July 30, 2024, based on defendant’s message to K.B. about her daughter (§ 288.3, subd. (a)). As to counts 1–4, it was alleged defendant committed the offenses while on bail. (§ 12022.1.) Aggravating factors were also alleged. PLEA PROCEEDINGS AND SENTENCING Felony Advisement Form On April 2, 2025, defendant signed a “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM,” that he was entering into a negotiated disposition to plead no contest to count 2, oral copulation of a person under 17 years, Jane Doe, on December 4, 2024, (§ 287, subd. (b)(1)), with dismissal of the remaining counts and cases, imposition and suspension of the midterm, probation for two years, and registration as a sex offender pursuant to tier two in section 290.006, subdivision (b).2 2 “For many years, California took a one-size-fits-all approach to sex offender registration: If registration was required, registration was always for life.” (People v. Franco (2024) 99 Cal.App.5th 184, 190 (Franco).) The sex offender registration statutes have been amended “to create a three-tiered system, with offenders in each tier 6. He initialed each paragraph that stated he understood and waived his constitutional rights, he understood the provisions of the plea agreement, and he had sufficient time to consult with his attorney. Plea Hearing Also on April 2, 2025, the trial court conducted the plea hearing. Defense counsel stated defendant would plead no contest to count 2, oral copulation of a person under 17 years, Jane Doe, on December 4, 2024 (§ 287, subd. (b)(1)), pursuant to the negotiated disposition stated in the felony advisement form, for dismissal of the remaining counts and another pending case, with the prosecutor retaining the right to comment about the dismissed counts, probation, and sex offender registration under tier two of section 290.006, subdivision (b). In response to the trial court’s questions, defendant stated he read, initialed and signed the felony advisement form, he understood the plea agreement, and he had sufficient time to consult with his attorney. The court advised him of his constitutional presumptively obligated to register for different periods of time depending on the degree of risk they pose to the community.” (Id. at p. 191.)

“ ‘Tier 1’ is for sex offenders posing the least risk of recidivism. They may apply for removal from the sex offender registry after 10 years. (§ 290, subd. (d)(1).)” (Franco, supra, 99 Cal.App.5th at p. 191.) “Tier 2 is for sex offenders posing a medium risk of recidivism. They may generally apply for removal from the sex offender registry after 20 years (§ 290, subd. (d)(2)), although some Tier 2 offenders may apply for removal after 10 years (§ 290.5, subds. (b)(1), (b)(2)).” (Franco, at p. 191.) “Tier 3 is for sex offenders posing the greatest risk of recidivism. They are required to register for life (§ 290, subd. (d)(3)), although there are exceptions under certain circumstances (id. § 290.5, subd. (b)(3)).” (Ibid.)

“Placement into Tier 1 and Tier 2 turns on the crime of which the defendant ‘was convicted.’ (§ 290, subd. (d)(1)(A), (2)(A).) Placement into Tier 3 generally turns on the crime of which the defendant ‘was convicted,’ but can also turn on the defendant’s ‘risk level on the static risk assessment instrument for sex offenders (SARATSO),’ on his recidivism, or on prior commitment to a state mental hospital as a sexually violent predator.” (Franco, supra, 99 Cal.App.5th at p. 191.)

7. rights, and defendant said he understood and waived those rights. The court also advised him that the maximum possible punishment was three years, and defendant said he understood. Thereafter, defendant pleaded no contest to count 2, and the parties stipulated to the preliminary hearing and the police reports for the factual basis. The trial court granted the prosecution’s motion to dismiss the remaining charges and a pending misdemeanor case, preserving the right to comment. Defendant was remanded into custody without bail pending the sentencing hearing. Sentencing On May 2, 2025, the trial court conducted the sentencing hearing. Jane Doe, the victim in count 2, addressed the trial court and stated she suffered mental health issues after defendant sexually assaulted her, she was afraid to leave home, and she had nightmares. One month after the assault, she was hospitalized because she had suicidal thoughts. Jane Doe stated defendant assaulted her when he was on conditional release for committing “a similar crime involving another minor” two months earlier. Jane Doe’s father also addressed the trial court and confirmed that Jane Doe suffered mental health issues after defendant sexually assaulted her. He said his other children were also affected by defendant’s crime because they lived in the same neighborhood, and he feared for the safety of his other children if defendant was placed on probation. The trial court stated defendant was eligible for probation pursuant to the negotiated disposition, and it would accept the parties’ agreement and place him on probation. The trial court suspended imposition of sentence for two years, and placed defendant on probation for two years subject to certain terms and conditions, including serving 365 days in jail with credit for time served, and ordered defendant to successfully 8. complete a sex offender management program, participate in all treatment programs as directed by the probation officer, and obey all laws, with search conditions for his person, property, residence, and electronic devices. The court also imposed restitution fines and fees. The trial court ordered defendant to register as a sex offender with law enforcement pursuant to section 290. The court found defendant’s case “would be a tier two registration” pursuant to section 290.006, subdivisions (b) and (c)(3), and that tier was appropriate based on the record and the parties’ stipulation. The trial court stated defendant could reside and have contact with his three biological children, but ordered defendant not to “frequent places where minors congregate, such as carnivals, parks, playgrounds, schools, video arcades or theme parks without the prior approval of the probation officer. Do not obtain employment which would allow unsupervised contact with any minors.” The trial court further ordered defendant “not to reside within a 2[,]000 foot radius of any public or private school or park or where minors attend or where minors regularly gather. [¶] I will grant at this time a limited exception for you to be allowed to remain in your current residence …. While living at that current residence, you shall not go within a 400 foot radius of the Mickey Cox Elementary School … in Clovis …. This limited exception for the current residence will only apply until January 31, 2026. As of February 1, 2026, you are subject to the 2[,]000 foot radius condition as stated. Specifically as of February 1, 2026, you’re ordered not to reside within a 2[,]000 foot radius of any public or private school or park where minors attend or where minors regularly gather.” The trial court served defendant with a criminal protective order (§ 136.2, subd. (i)) prohibiting all direct and indirect contact with Jane Doe for 10 years.

9. On June 2, 2025, defendant filed a timely notice of appeal from the trial court’s sentencing hearing, and stated he was challenging the validity of his plea. His request for a certificate of probable cause was denied.3 DISCUSSION As noted above, defendant’s counsel filed a Wende brief with this court. The brief also included counsel’s declaration that he exchanged emails with defendant explaining his evaluation of the appellate record, intention to file a Wende brief, and advising defendant he could file his own brief with this court. By letter on July 9, 2026, we invited defendant to submit additional briefing. To date, he has not done so. After independent review of the record, we find that no reasonably arguable factual or legal issues exist. DISPOSITION The judgment is affirmed.

3 The instant appellate record includes reporter’s transcripts for hearings held after sentencing. On May 23, 2025, the trial court convened a hearing on an allegation that defendant violated probation in this case, and defense counsel requested a contested hearing. On June 3, 2025, the court granted the parties’ motion to continue the probation violation contested hearing. Any issues involving an alleged probation violation are not implicated in the instant notice of appeal.

10.