Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI022821, John M. Timberline, Judge.
Jean Gallanting, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
In July 2008, a jury found defendant Roy Dale Jones, who was represented by counsel, guilty of two felony counts of lewd acts upon a child under the age of 14 years (D.T.) during the calendar year 2003 (Pen. Code, § 288, subd. (a)) (counts 1 and 2); and two misdemeanor counts of molesting a child under the age of 18 years (S.T.) during the calendar year 2003 (§ 647.6, subd. (a)) (counts 4 and 5). Following a lengthy sentencing hearing, defendant was sentenced to a total term of six years in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
The jury acquitted defendant of committing another felony count of lewd acts upon a child (D.T.) during the calendar year 2005 (§ 288, subd. (c)(1)) (count 3).
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Michele T. moved into defendant’s home in Apple Valley. Michele was divorced. Two of her daughters, S.T. (born in 1990) and D.T. (born in 1991), lived with their father but stayed with Michele and defendant every other weekend and for two to three weeks at a time during the summer. Defendant also had roommate, Wayne, who had his own bedroom and bathroom.
Sometime in 2003, while the girls were staying at defendant’s home, they asked him to buy them some purses they had seen at a Target store. Defendant initially refused but later told the girls he would if they masturbated him. D.T. agreed and masturbated defendant’s erect penis with her hand for about two minutes. S.T. was present during this incident. Later the same day, defendant and the two girls were in the master bedroom engaging in horseplay and wrestling. During this incident, defendant pulled his pants down, and D.T. tied a bow with a silk bathrobe belt around his penis. Defendant did nothing to stop her. S.T. was present during this incident. Defendant then took the girls to Target, where he bought them the purses they wanted. D.T. did not tell her mother about the incidents or that defendant had bought them the purses.
In 2004, D.T. was not getting along with her father and chose to move in with her mother and defendant. S.T. continued to visit as before. In 2005, while D.T. was lying on the couch watching television, defendant started to tickle her stomach, then all over her body, including her vaginal area. D.T. told defendant to stop, and he did.
In August 2005, Michele learned of these incidents as well as others and notified police. Detectives later interviewed D.T. and S.T..
The uncharged incidents included defendant, D.T., and S.T. playing a game of “panting,” in which one person would grab the waistband of another person’s pants and try to pull them down, and defendant masturbating in front of D.T., once while he watched pornography on his computer and once while they were in the garage. Defendant did not wear underwear and at times when D.T. would pull his pants down his private parts would be completely exposed. Other uncharged incidents included defendant frequently pinching S.T.’s buttocks and grabbing or patting her crotch area.
Over defense objection and following an Evidence Code section 402 hearing, the girls’ adult sister testified that on one occasion, about a week and a half before she was notified about these incidents involving defendant and her sisters, defendant rubbed his finger from her bare knee to the bottom of her mid-thigh maternity shorts. She removed defendant’s hand and told him to stop.
Defendant’s roommate Wayne and Wayne’s girlfriend’s daughter testified that they never witnessed any inappropriate behavior between defendant and the two girls.
In closing argument, the prosecutor elected among the various acts shown by the evidence, telling the jury that count 1 involved the incident in which D.T. masturbated defendant; count 2 involved the act in which she tied the silk bathrobe belt around defendant’s penis; count 3 concerned defendant tickling D.T.’s crotch area in the summer of 2005; count 4 involved S.T.’s presence and observation of D.T. masturbating defendant as charged in count 1; and count 5 concerned S.T.’s presence and observation of D.T. tying the belt around defendant’s penis.
II
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wendie (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [ 87 Sect. 1396, 18 Led.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.