Opinion
G054251
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JASON WEAVER, Defendant and Appellant.
Forest M. Wilkerson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF1860) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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FACTS
While on probation for indecent exposure, appellant Matthew Jason Weaver drove past Ruby V. and her younger sister and parked his car. When Ruby and her sister reached the car, they saw through the open passenger window that appellant had exposed himself and was masturbating with his left hand. He made eye contact with Ruby, but did not stop or try to cover himself.
Modern children having been educated to this eventuality, Ruby immediately called the police while her sister took a picture of the car. They provided the license number to the police. It was registered to appellant and he was stopped that evening driving it. Appellant's probation officer confirmed the ownership of the car by appellant, and the ankle monitor appellant was wearing as a result of his probation for the earlier indecent exposure confirmed his presence where Ruby and her sister described.
Two days later, driving the same car, appellant went to considerable effort to expose himself to another driver. He tailgated her and swerved to pull up in the lane next to her, then - while yelling to get her attention - contorted his body upward in an attempt to expose his crotch. While the other driver could not see his hand, she described him as "making the motion" of masturbation.
She followed appellant to a restaurant parking lot, watched him leave his car and took a picture of it. This took place at the same time of day as the exposure to Ruby, in the same area, and again his ankle bracelet confirmed that not only was his car there, he was.
Because of the prior conviction, appellant was charged with felonies. Another young woman testified to the prior to establish the applicability of the felony statute and also as Evidence Code section 1108 evidence. Like the other victims, she had taken a photo of the car and identified appellant as the left-handed masturbator she had been victimized by.
The defense was testimony by appellant's girlfriend that his genitalia was so large it could not have been covered by his hands, so the victims' identifications - in which they said they could not actually see his genitalia must be mistaken. She also testified that traffic in that area was so busy at the times described that she could not imagine these things happening as described.
A jury convicted appellant of two counts of felony indecent exposure (Pen. Code, § 314(a)) and two counts of misdemeanor lewd conduct (Pen. Code, § 647(a)). He was sentenced two years (the middle term) on the first indecent exposure and eight months (1/3 the mid-term) on the second. The lewd conduct counts were stayed under Penal Code section 654 since they were based on the same acts.
DISCUSSION
Weaver filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which fully set forth the facts of the case. Counsel did not argue against his client, but advised the court he could find no issues to argue on appellant's behalf. Appellant was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of appellant's lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which appellant would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief.
The only thing that distinguishes this case from most is that it is so strong. It was not a complex case. It was based on eyewitness identification, corroborated to a remarkable degree by the circumstantial evidence - including that provided by his ankle bracelet - against him. Appellate counsel considered and rejected the possibility of attacking the sufficiency of the evidence, and we can certainly see why. The evidence was not only considerably greater than the legal standard requires, it was overwhelming.
We have examined the procedural niceties of the case (an amended information had to be filed to add the second incident, the prior had to be proven, and the court heard and denied a motion pursuant to Pen. Code, § 1118.1) and can find nothing with which to find fault. The court and counsel handled them flawlessly.
Nor can we find anything to criticize in the sentencing. While no case is "average" there were no significant ameliorating factors in this one that would have suggested a lower sentence might be in order. If anything, appellant is fortunate the court did not raise the ante because all this happened while appellant was wearing an anklet as a probationer.
In short, we have searched for other issues and we have found none that we think has any chance of success. We believe counsel's decision to file a Wende brief was well-advised. The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.