P. v. Fahey CA4/3

Filed 6/20/13 P. v. Fahey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047489

v. (Super. Ct. No. 09HF0428)

MATHEW MACUL FAHEY, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Defendant Mathew Macul Fahey filed a notice of appeal. His appointed counsel filed a brief setting forth a statement of the case, but advised this court she found no issues to support an appeal. Fahey filed his own written brief after we provided him an opportunity to do so. We conclude Fahey’s arguments are without merit, and after conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTS An amended felony complaint filed in April 2009 charged Fahey with committing lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless noted) between January 1996 and December 1998 (count 3), and again in September 2001 (count 1), and possessing child pornography (§ 311.11, subd. (a)) in June 2008 (count 2). The complaint alleged Fahey had substantial sexual conduct (§ 1203.066, subd. (a)(8) [masturbation]) with the victim in count 3, and committed sexual offenses against more than one victim (§ 667.61, subd. (b), (e)). Laguna Beach Police Officer Deborah Kelso testified at Fahey’s October 2010 preliminary hearing that in May 2008 Nicole F. (born in February 1991) disclosed she met Fahey at the beach in September 2001. He claimed he was a professional photographer and asked to photograph her. After a subsequent photo shoot at a park, Nicole accompanied Fahey to a Laguna Beach apartment. Fahey asked her to remove her shirt and get on a bed. She complied, and he took additional photos of her in her jeans and underwear. He then asked her to remove her pants and get on her hands and knees. He took photos of her vagina. He then physically manipulated her vagina and took additional close-up photos. He moved his finger back and forth and told her not to tell her mother.