People v. May CA6

Filed 7/13/15 P. v. May CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041740 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1120473)

v.

ROBERT LEWIS MAY,

Defendant and Appellant.

On June 3, 2014, defendant Robert Lewis May pleaded guilty to one count of committing a lewd or lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a), count 1) and two counts of committing a lewd or lascivious act on a child aged 14 or 15 (id., § 288, subd. (c)(1), counts 2 & 3). He was sentenced to the middle term of six years on count 1, along with concurrent two year terms on both counts 2 and 3. He was also ordered to pay a restitution fine of $3,600 and fines pursuant to Penal Code section 1465.8 and Government Code section 70373. We appointed counsel to represent May in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified May of his right to submit written argument in his behalf within 30 days, and he has filed a letter brief claiming he was misled regarding the terms of his plea agreement and his trial counsel rendered ineffective assistance. Pursuant to People v. Wende (1979) 25 Cal.3d 436 we have reviewed the entire record and have concluded there are no arguable issues. We will provide “a brief

description of the facts and procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly, we will consider May’s letter brief and will explain why we reject his contentions. (Id. at p. 113.) I. FACTUAL AND PROCEDURAL BACKGROUND1 The victim (victim) was 19 years old at the time of the preliminary examination in August 2012. Victim testified that May, her uncle, had touched her inappropriately five times when she was a child. The first incident occurred when she was 12 years old and, along with her brother, had driven to the mountains with May. While her brother slept in the back seat, May placed his hand on her inner thigh, close to her crotch, as he drove. Victim said he kept his hand there for perhaps 30 minutes. The second incident took place when victim was 13 or 14 years old. She was seated in a chair at May’s worksite when he came up to her, lifted her shirt and rubbed and kissed her stomach, before unbuttoning her pants. She got frightened and got up to use the restroom. When she returned, May laughed and said she should “watch out or he would steal her virginity.” May told her that they had not done anything wrong, and if she told anyone what had happened, he could get in trouble. About a year later, when victim was 14 years old, she was lying on the couch at May’s house watching television one evening. May lay down behind her and put his arms around her. He put his hands on her stomach, under her shirt, and pressed his face against her neck. Victim was very uncomfortable and told May she had to go to the bathroom. When she returned, she sat in a different location.