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P. v. Kelley

P. v. Kelley
02:10:2006

P. v. Kelley
Filed 2/2/06 P. v. Kelley CA4/1



NOT TO BE PUBLISHED


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.




COURT OF APPEAL, FOURTH APPELLATE DISTRICT





DIVISION ONE





STATE OF CALIFORNIA








THE PEOPLE,

Plaintiff and Respondent,

v.

DAN KELLEY, JR.,

Defendant and Appellant.
D046700

(Super. Ct. No. SCD181962)


APPEAL from a judgment of the Superior Court of San Diego County,

Kenneth K. So, Judge. Affirmed.

Dan Kelley, Jr., entered a guilty plea to selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)). He admitted a prior conviction of selling a controlled substance (Health & Saf. Code, §§ 11352, subd. (a), 11370.2, subd. (a)) that made him ineligible for probation (Pen. Code, § 1203.07, subd. (a)(11)) and serving four prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668). The court dismissed the prior drug conviction enhancement and one prior prison term enhancement and sentenced him to prison for seven years: the four-year middle term for selling a controlled substance enhanced by three one-year terms for the prior prison terms. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Kelley's guilty plea was constitutionally valid; (2) whether the sentence was in accord with the plea agreement; (3) whether there was a sufficient factual basis for the guilty plea; (4) whether the trial court abused its discretion in imposing the prison term; (5) whether Kelley was denied the right to represent himself; and (6) whether the punishment was cruel and unusual.[1]

We granted Kelley permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Kelley on this appeal.

DISPOSITION
The judgment is affirmed.


BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


AARON, J.

Courtesy of San deago Criminal Lawyers (with http://www.mcmillanlaw.us.), and San deago Lawyer Directory ( http://www.fearnotlaw.com)

[1] Because Kelley entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in detail.





Description A criminal law decision on selling controlled substance.
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