People v. Myers CA3

Filed 9/1/21 P. v. Myers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C091811

v. (Super. Ct. No. 19CF03521)

DAVID LEE MYERS,

Defendant and Appellant.

Defendant David Lee Myers pleaded guilty to committing a lewd act upon a child and the trial court sentenced him to the midterm of six years in prison. Defendant now contends the trial court improperly relied on two aggravating factors in sentencing him. Because defendant has not established prejudicial error, we will affirm the judgment. BACKGROUND The stipulated factual basis for defendant’s plea is taken from the probation report. In June 2019, K.L.’s family hosted a birthday party for K.L.’s father. K.L. was seven years old at the time. Her parents’ friend brought defendant, a 39-year-old man, to the party. K.L.’s father had met defendant previously, but he did not know defendant’s name. At the party, defendant drank alcohol and became heavily intoxicated. He eventually fell asleep on the living room couch, where K.L.’s parents let him stay the night so he would not be arrested for an alcohol-related offense.

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In the middle of the night, defendant went into K.L.’s bedroom and tapped her to wake her up. He repeatedly told her “I love you” and touched her vaginal area and buttocks over her clothes. Defendant also inserted a portion of his thumb into her vagina, from outside of her clothing, pushing the clothing into her vagina a few times. He then began to pull her pajama bottoms and underwear down, but K.L. pulled them up and ran out of the bedroom and into the living room, where she tried to go to sleep on the loveseat. Defendant followed her and tried to lie down next to her. K.L. then moved to a small recliner and turned on the television. Defendant laid down on the floor and fell asleep. K.L.’s mother heard K.L. talking and woke up. She went to K.L.’s bedroom, where K.L. told her that defendant touched her “no-no zone.” K.L.’s parents confronted defendant, who was still lying on the floor, and demanded that he leave. They then contacted the police, who arrested defendant at his residence. When the police interviewed defendant, he first denied touching K.L. inappropriately. He claimed that he found K.L. crying in the hallway for her parents. He said he took her back to bed, where he touched her back and face to comfort her in a fatherly way. Defendant then stated it was possible he had touched K.L.’s vagina and buttocks on the outside of her clothing when he tucked her in, but he did not mean to make her uncomfortable or hurt her. He denied telling her that he loved her and said that if she felt he was “too ‘handsy’ ” he would like to apologize. Defendant eventually pleaded guilty to one count of a lewd act upon a child. (Pen. Code, § 288, subd. (a).)1 In exchange, the People dismissed two additional counts with a Harvey waiver.2 At the first sentencing hearing, the prosecution asked that