People v. Erickson CA4/1

Filed 2/2/24 P. v. Erickson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081788

Plaintiff and Respondent,

v. (Super. Ct. No. SCN436047) JASON WAYNE ERICKSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Anthony J. Campagna, Judge. Affirmed. Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Jason Wayne Erickson appeals from a judgment following conviction by a jury. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Erickson the opportunity to file his own brief on appeal, but he has not responded.

FACTUAL AND PROCEDURAL BACKGROUND Erickson visited K.S.’s apartment on March 12, 2022, as a guest of her roommate. Erickson arranged to sleep on the couch. That night, K.S. smoked marijuana and had a cocktail before leaving the apartment to visit a bar. At the bar, she drank an additional five drinks and was intoxicated when she returned home, stumbled inside, and went to sleep. K.S. awoke a few hours later with Erickson in her bed beside her and with her dress pushed up above her stomach. His hand was inside her underwear, and he used his finger or fingers to penetrate her vagina. When she awoke, K.S. heard Erickson asked if she “like[d] that” before she exited the room. The People charged Erickson with one count of sexual penetration of an

unconscious victim (Pen. Code, § 289, subd. (d), count 1)1 and one count of assault with intent to commit unlawful sexual penetration (Pen. Code, § 220, subd. (a)(1), count 2). The People subsequently dismissed count 2. At trial in January 2023, the victim, her roommates, a police officer, police detective, the nurse who performed a forensic exam of the victim, DNA experts, a memory expert, and Erickson’s friends testified; Erickson also testified in his defense. The jury convicted Erickson of one count of sexual penetration of an unconscious victim. (Pen. Code, § 289, subd. (d).) Given the statutory provision of which he was convicted, Erickson was ineligible for probation. (§ 1203.065, subd. (a).) At the March 7, 2023, sentencing hearing, Erickson was sentenced to prison for the lower term of three years and was assessed various fines and fees totaling $2,170. The court did not impose a victim restitution fine at the time of sentencing.