P. v. Kester CA3

Filed 3/27/13 P. v. Kester CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C070665

Plaintiff and Respondent, (Super. Ct. No. CRF11-242)

v.

DONALD EARL KESTER,

Defendant and Appellant.

Appointed counsel for defendant Donald Earl Kester has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

Defendant was charged with three counts of committing lewd and lascivious acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).) Two counts were alleged to have occurred between March 18 and 19, 2011 (counts 1 and 2), and one count was alleged to have occurred between November 1, 2010 and March 18, 2011 (count 3).

Defendant waived his right to a jury trial and proceeded with a court trial. He also agreed to waive his right to confront and cross-examine three child witnesses, including the victim, and stipulated that the prior recorded multidisciplinary interview center interviews would be presented by way of DVD recording. The People agreed to seek a finding on only one of the charged counts.

The following facts were adduced at trial. Defendant lived alone in an apartment beginning in August 2010. His grandson, A.C. (age 11), and two granddaughters, E.K. (the victim, age nine) and M.K. (age seven), would spend the weekend visiting approximately twice a month. While there, the children would play video games and watch television. A.C. reported that defendant drank heavily during the visits. The children slept together in a bedroom separate from defendant.