Filed 7/13/15 P. v. May CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LEWIS MAY,

Defendant and Appellant. H041740 (Santa Clara County Super. Ct. No. C1120473)

On June 3, 2014

, defendant Robert Lewis May pleaded guilty to one count of

committing a lewd or lascivious act on a child under 14 years of age (Pen. Code, § 288,

subd. (a), count 1 ) and two counts of committing a lewd or l ascivious act on a child aged

14 or 15 ( id

., § 288, subd. (c)(1), counts 2 & 3 ). He was sentenced to the middle term of

six years on count 1 , along with concurrent two year terms on both counts 2 and 3

. He

was also ordered to pay a restitution fine of $3

, 600 and fines pursuant to Penal Code

section 1465.8 and Government Code section 70373.

We appointed counsel to represent May in this court. Appointed counsel filed an

opening brief which states the case and the facts, but raises no specific issues. We

notified May of his right to submit written argument in his behalf within 30 days, and he

has filed a letter brief claiming he was misled regarding the terms of his plea agreement

and his trial counsel rendered ineffective assistance

.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 we have revie wed the entire

record and have concluded there are no arguable issues. We will provide “a brief2

description of the facts and procedural hist ory of the case, the crimes of which defendant

was convicted, and the p u nishment imposed.” ( People v. Kelly (2006) 40 Cal.4th 106,

110.) Pursu ant to Kelly , we will consider May ’s letter brief and will explain w hy we

reject his contentions. ( Id . at p. 113.)

I. F ACTUAL AND P ROCEDURAL B ACKGROUND 1

The victim (victim) was 19 y ears old at the time of the preliminary examination in

August 2012. Victim testified that May, her uncle, had touched her inappropriately five

times when she was a child.

The first incident occurred when she was 12 years old and

, along with her brother

,

had driven to the mountains with May . While her brother slept in the back seat

, May

placed his hand on her inner thigh , close to her crotch, as he drove. Victim said he kept

his hand there for perhaps 30 minutes.

The second incident took place when vi ctim was 13 or 14 years old. She was

seated in a chair at May’s worksite when he came up to her, lifted her shirt an d rubbed

and kissed her stomach, before unbuttoning her pants. She got frightened and got up to

use the restroom. When she returned, May laughed and said she should “watch out or he

would steal her virginity.” May told her that they had not done anything wrong, and if

she told anyone what had happened, he could get in trouble.

About a year later, when victim was 14 years old, she was lyi ng on the couch at

May’s house watching television one evening

. May lay down behind her and put his

arms around her. He put his hands on her stomach, under her shirt, and pressed his face

against her neck. Victim was very uncomfortable and told May s he had to go to the

bathroom. When she returned, she sat in a different location.

1 Since May pleaded guilty, we take the facts from transcript of the preliminary hearing and the probation officer’s report

.3

When victim was in high school she took a trip to Reno with May to look at a

university. She was not yet 18, but thought she was probably a senior in high school at

the time

. They stayed in the same hotel room which had two beds. While victim was

lyin g on one of the beds watching television

, May straddled her and began rubbing her

back underneath her pajamas. He tried to unfasten her bra at which point she made some

excuse to move away from him.

The last incident victim remembered occurred when she was 17 and was staying at

May’s house. She was lying on an air mattress in the living room watching television

when May lay down next to her and rubbed her stomach and breasts under her clothing.

He told her he thought her bellybutton ring was sexy. She could feel his erect penis

against her body. May told her he and his wife had not had sex for months. Victim

moved away from him and May gave her a hug, saying “Thank you. I was feeling really

lonely. Thanks for cuddling with me.”

Victim also said that May had, on various occasions, made comments to her about

her body which made her feel uncomfortable. He commented on her breasts, telling her

she had a “nice rack,” and also told her she had a “nice ass” or a “hot ass.”

On September 7, 2011, victim participated in a pretext call with May

. She told

him she did not understand what he was thinking when he touched her on the occasions

described above . May apologized to he r and admitted he was sexually attracted to her.

He told victim he loved her and “If [he] could take it all back, [he] would take it all

back.”

May ’s letter brief argues revers al is necessary because he was not properly advised

of the consequences of his plea

. He claims his trial counsel told him that he was agreeing

to a plea deal with a “top” and “bottom” term and that he would be “getting the low end

of the plea which is, 1 year, of which 6 months are served in county [jail].” He

subsequently clai ms his tax lawyer told him that he had actually signed an “open” plea

and should ask to withdraw it. May asked his trial counsel to withdraw his plea, but she4

refused to do so. May was “shocked” to hear that the probation report recommended a

six

- year se ntence.

The record does not support May ’s contentions. He signed and initialed a plea

form in which he acknowledged he could receive a maximum sentence of nine years and

four months if convicted on the charges, but that he was agreeing to plead guilty in

exchange for a sentence of “probation up to 8 years [in] prison.” During the plea hea ring,

the trial court advised May that “the [sentencing] range could include anything from

proba t ion up to eight years in prison. ” Additionally, the court advised May that it was

“giv[ing] no indication

. . . of what the sentence would be at this time.” May verbally

acknowledged he understood these statements , admitted he signed and initialed the

w aiver of rights, and told the court he had no further questions of his trial counsel o r of

the court. Therefore, we find May was adequately advised of the right s he was waiving

and the consequences of his plea

. May also claim s his tria l counsel rendere d ineffective assistance . Like his claim

that he was misadvised about the terms of his plea agreement, this assertion is

unsupported by the record. The California Supreme Court has “repea tedly stressed ‘that

“[i]f the record on appeal sheds no light on w hy cou nsel acted or failed to act in the

manner challenged[,]

. . . unless counse l was asked for an explanation and failed to

provide one, or unless there s imply could be no satisfactory explanation,” the claim on

appeal must be rejected .’ [Citations.] A claim of ineffective assistance in suc h a case is

more appropriately decided in a habeas corpus proceeding.” ( People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266

- 267.)

In addition to considering the argum ents set forth by May in his letter brief, we

have also conducte d an independent review of the record pursuant to Wende and Kelly

a nd have concluded there are no arguable issues on appeal.

I I. D ISPOSITION

The judgment is affirmed.Walsh, J. *

WE CONCUR:

Rushing, P.J.

Elia, J.

* Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.