People v. Howard CA5

Filed 8/12/16 P. v. Howard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F070872 Plaintiff and Respondent, (Super. Ct. No. CRM034115) v.

ROBERT LEE HOWARD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge. Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

*Before Poochigian, Acting P.J., Detjen, J., and Smith, J.

INTRODUCTION Appellant Robert Lee Howard was convicted by a jury of three counts of aggravated sexual assault, in violation of Penal Code1 section 269, and seven counts of lewd and lascivious acts on a child under the age of 14 years, in violation of section 288, subdivision (a). Multiple-victim enhancements, pursuant to section 667.61, subdivisions (b) through (e), also were found true as to each of the seven section 288, subdivision (a), convictions. Howard timely appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTS AND PROCEDURAL HISTORY S.L.B. is Howard’s stepdaughter and was 44 years old at the time of trial. S.L.B.’s mother married Howard when S.L.B. was around three years old. S.L.B. testified at trial pursuant to Evidence Code section 1101, subdivision (b), and section 1108. S.L.B. testified to multiple acts committed by Howard against her when she was a child. When S.L.B. was about three, Howard showed her a picture of a man touching a young girl’s thigh; he then tried to touch her in the same manner. When she was in the first grade, Howard attempted to penetrate her with his penis. On another occasion, Howard forced her to copulate him orally. When S.L.B. was six or seven years old, Howard “made” her “have sex with him” in his truck on the side of the road. Howard threatened her with physical harm if she told anyone. When she was nine, S.L.B. told a neighbor she was “being touched by somebody,” but did not identify the person. An investigation ensued and S.L.B. was placed in foster care; after two weeks she returned home. Howard was not living in the home, but he returned less than a year afterward. About a year after Howard moved back in, S.L.B’s mother went to work outside the home and the molestations resumed about a year later, when S.L.B. was 12.