People v. Whitesides CA4/3

Filed 8/6/14 P. v. Whitesides CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048833

v. (Super. Ct. No. 10NF0718)

KYLE JASON WHITESIDES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. David L. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

A jury found defendant Kyle Jason Whitesides guilty of the rape of Kim M. by force as charged in count one of the information, and guilty of sodomy by force of Kim M. as charged in count two of the information. Defendant was charged with another count of forcible rape of Amy D. in count three, as well as sodomy by force of Amy D. in count four, but the jury was unable to reach verdicts on those counts. The court granted the People’s motion to dismiss counts three and four. We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant. In February 2009 Kim M. was living at a board and care facility with two roommates in Anaheim. That evening, Kim M. and Rose, one of her roommates, were sharing wine in the room, despite the fact wine was not permitted in the facility. After being invited by Rose, defendant came to the room. The first time Kim M. realized defendant was planning on spending the night was when Rose pulled a sleeping bag out of the closet and placed it on the floor between beds. At a time when defendant was sitting or laying back on the floor and the three of them were talking, defendant touched Kim M.’s vaginal area over her clothes with his foot three or four times. Each time, Kim M. pushed his foot away. After the fourth time, Kim M. got up and went into the bathroom. Six people at the board and care share one bathroom; therefore, pursuant to the routine at the facility, Kim M. did not lock the bathroom door. Kim M. was feeling nauseous and was sitting on the edge of the bathtub when the door opened. Defendant pulled her up and bent her over the sink, untied her scrubs and pulled her scrubs and underpants down to her knees. Kim M. said: “I felt