Filed 3/27/13 P. v. Kester CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C070665

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF11-242)

         v.

DONALD EARL KESTER,

                   Defendant and Appellant.




         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.)


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       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.

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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 again. After the movie
was over, he removed his hand and sent her back to bed.

      The next day, when the children’s mother picked them up for the party, she
noticed both E.K. and A.C. acting unusually. E.K. was walking very slowly with her
head bent down and avoiding eye contact. A.C. seemed rushed to leave defendant’s
apartment. When they got in the car, A.C. said she (mother) was going to be really upset
and never let them go back to defendant’s apartment, but A.C. did not give her a reason.
They went to the store to pick up some items for the birthday party and A.C. then told his
mother that he saw defendant pulling his hand out of E.K.’s pants. When asked, E.K.
acknowledged that it had happened.

      As a result, the children’s mother took them directly to the police department
where they spoke with officers. E.K. was examined and discovered to have a bruise
around her vagina. A subsequent sexual assault exam revealed tissue damage in the
vaginal area that would not be expected on a child absent sexual assault. The examiner
concluded some form of fondling or touching of the vaginal area had occurred. This
finding was consistent with the incident history the examiner had been provided.

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       E.K. was interviewed and revealed defendant had put his hand down her pants on
previous occasions when the children were visiting at his apartment. Defendant had
come into the children’s room after they were asleep, carried her back to the front room
and put his hand down her pants while they watched a movie. E.K. would tell him she
just wanted to sleep but defendant would say, “ ‘I just want to have fun with you’ ” and
“ ‘just let me do it and then you can go to sleep.’ ” E.K. said that, on each occasion, he
touched her upper thigh. On the occasion that A.C. witnessed, she hesitated and then
described defendant as having touched her front upper thigh and then moved his hand up
to just under her bikini line.

       Defendant denied ever having intentionally put his hand down E.K.’s pants or
touching her inappropriately.1 He admitted to tickling the child and said it was possible
he had accidently put his hand in her pants or touched her vaginal area while doing so.
Defendant admitted he was drinking beer the night of March 18, 2011. He also admitted
to bringing E.K. back to the front room to watch a movie after sending the children to bed
but, again, denied he put his hand down her pants as they watched. Defendant had made
several statements to a friend while in jail about his preference for prepubescent girls,
which were recorded and admitted into evidence, but he claimed his comments had been
satire or mocking.




1 Defendant was interviewed by police officers prior to his arrest. This conversation
was recorded and the recording was admitted into evidence. The trial court’s records do
not contain a transcript of the recording and it is unclear if the trial court was provided
with one at the trial. Defendant’s appellate counsel has provided a transcript of the
recording, prepared by his office, for the purpose of providing ease of reference.
Although we deny his request to take judicial notice of said transcript, we appreciate the
preparation and submission of the transcript for ease of reference. Consistent with our
obligations under Wende, however, we have listened to the recording itself as part of our
review of the record.

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       The trial court found defendant guilty of count 1 and dismissed the other counts on
the People’s motion. The matter was referred to the probation department for a
sentencing report and a Penal Code section 288.1 report by a court-appointed
psychologist.

       On March 12, 2012, the trial court denied defendant’s application for probation
and sentenced him to the midterm of six years in state prison. The trial court imposed
various fines and fees, including a $1,200 restitution fine and $6,210 in victim restitution.
Defendant was awarded 319 actual days and 47 conduct days, for a total of 366 days of
presentence custody credit. (Pen. Code, § 2933.1.)

       Defendant appeals. Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days have elapsed, and we have received no communication from defendant.

       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.

                                      DISPOSITION

       The judgment is affirmed.


                                                               BUTZ                   , J.



We concur:



         RAYE                      , P. J.



         BLEASE                    , J.

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