Opinion
E069586
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW LYONS LOW, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR043028) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Matthew Lyons Low was charged by third amended information with five counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 1-5), and one count of continuous sexual abuse of a child (§ 288.5, subd. (a), count 6). A jury found defendant guilty of all counts. A trial court sentenced him to the low term of three years each on counts 1 through 5, to run consecutive to the middle term of 12 years on count 6, for a total of 27 years in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
Defendant filed a timely notice of appeal. The People subsequently pointed out that the court erred in imposing the terms on counts 1 through 5 pursuant to section 667.6. Thus, the court corrected its error and resentenced defendant to the middle term of six years on count 1, one-third the middle term (or two years) on counts 2 through 5, consecutive, plus a consecutive middle term of 12 years on count 6, for a total of 26 years in state prison. We now affirm.
FACTUAL BACKGROUND
The victim was 17 years old at the time of trial. She testified that when she was four years old, her mother (mother) married defendant. They moved into his house and lived with him and his two older children. Defendant and mother eventually had two children together. The victim testified that defendant started sexually abusing her when she was about seven years old. He would tuck her in bed at night and touch her vagina over her clothes. He would do this once or twice a month. As she got older, the touching increased from once a week to every day. Defendant would also occasionally force her to touch and squeeze his penis, sometimes over his clothing, but usually under his clothing. One time, when the victim was kneeling at her bed, defendant took his penis out, grabbed her head, and tried to put it in her mouth.
The family subsequently moved to a second house. The victim testified that defendant continued to touch her vagina and have her touch his penis. When she was about 12 or 13 years old, he started to touch her breasts, suck on them, and try to put his penis in her vagina and butt. He would touch her breasts about once a day. While they were driving in the car, defendant started putting his fingers in her vagina. She testified that this occurred between 10 and 20 times. He would usually tell her he loved her, while he was doing it. When the victim was 14 or 15 years old, defendant started putting his mouth on her vagina about once a week.
At trial, C.W. also testified. He had known the victim since she was eight years old. When they were about 16 years old, they started a dating relationship. By the time of the trial, they were no longer dating. While they were dating, he noticed clues that something had happened to her. A few times when they were walking together, the victim would have sudden fits of crying. One time, she got flustered and tried to tell him something about a family member. The victim's emotional episodes would also occur when he physically touched her. One time, they were kissing, and she just started crying. He asked her what was wrong, and she made a comment about something in her past and a family member. Subsequently, at the end of their relationship, the victim told him she had been molested multiple times. C.W. brought up the issue a second time to try and get more information. However, the victim told him not to tell anyone what she had disclosed. She said she did not want her mother and siblings to "live the same way before her stepfather came into the picture." C.W. went to a teacher that he trusted with the information. The teacher told him to tell the assistant principal and call law enforcement.
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. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether there was sufficient evidence to support the convictions; (2) whether there were any sentencing errors; and (3) whether there were any arguable issues related to the jury instructions. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.