(Super. Ct. No. CRF11-242)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Donald Earl Kester has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant was charged with three counts of committing lewd and lascivious acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).) Two counts were alleged to have occurred between March 18 and 19, 2011 (counts 1 and 2), and one count was alleged to have occurred between November 1, 2010 and March 18, 2011 (count 3).
Defendant waived his right to a jury trial and proceeded with a court trial. He also agreed to waive his right to confront and cross-examine three child witnesses, including the victim, and stipulated that the prior recorded multidisciplinary interview center interviews would be presented by way of DVD recording. The People agreed to seek a finding on only one of the charged counts.
The following facts were adduced at trial. Defendant lived alone in an apartment beginning in August 2010. His grandson, A.C. (age 11), and two granddaughters, E.K. (the victim, age nine) and M.K. (age seven), would spend the weekend visiting approximately twice a month. While there, the children would play video games and watch television. A.C. reported that defendant drank heavily during the visits. The children slept together in a bedroom separate from defendant.
Beginning in January 2011, E.K. began asking not to go to defendant's house and, on at least one occasion, was permitted to go to an aunt's house instead. However, on Friday, March 18, 2011, all three children were dropped off at defendant's house for the weekend. The children were to be picked up Saturday afternoon to go to a birthday party but were to go back to defendant's house afterwards.
The children arrived between 7:30 and 8:00 p.m. and, shortly thereafter, M.K. fell asleep in a chair in the front room. Defendant took her to the bedroom and returned to the front room. A.C. was playing video games as defendant and E.K. sat on the couch behind him and watched. Defendant had consumed four to five bottles of beer by this time. While A.C. played the game, defendant put his hand down E.K.'s pajama pants. At this point, A.C. turned around and saw defendant with his hand down E.K.'s pants. A.C. and defendant looked at each other as defendant took his hand out of E.K.'s pants and reached for his beer. A.C. said defendant had a frightened look in his eyes.
A.C. continued playing his video games. When he turned around later, he saw defendant rubbing E.K.'s leg, outside of her clothing. E.K. felt nauseated and asked to call her mother. Defendant refused, telling her there was nothing her mother could do that he could not do. A.C. felt sick, having witnessed defendant touching E.K., and also asked to call his mother. Again, defendant refused.
Defendant told the children it was time to go to bed and they went into the bedroom they used when they visited defendant. Defendant then came in, while E.K. was asleep, removed her covers, and carried her back to the front room. He put on a movie and, while they were watching, he put his hand down her pants ...