Filed 9/22/26 P. v. Kern 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
THE PEOPLE, C103849
Plaintiff and Respondent,
(Super. Ct. No. 20F2508)
v.
JOSEPH JASON KERN,
Defendant and Appellant.
Appointed counsel for defendant Joseph Jason Kern asked this court to
independently review the record to determine whether there are any arguable issues on
appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having done so, we shall modify the
judgment to dismiss defendant’s misdemeanor conviction as contemplated by the parties’
plea agreement and affirm the judgment as modified.
BACKGROUND
In November 2019, multiple parents reported a man with a large knife riding back
and forth on a bike in front of their children’s school. Police located defendant across the
street from the school with a large knife in a sheath suspended from his belt and another
attached to the bicycle frame. Defendant had three other knives concealed in various
pants pockets.
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In August 2020, defendant pled no contest to one felony count of carrying a dirk
or dagger (Pen. Code, § 21310; count 1)1 and one added misdemeanor count for the same
offense (§ 21310; count 2) in exchange for a two-year suspended sentence and felony
probation on various terms and conditions, as well as dismissal of several pending cases.
Under the plea agreement, if defendant completed probation, his plea to count 1 would be
withdrawn nunc pro tunc, and the count dismissed. If defendant did not complete
probation, the count 1 conviction would remain, and count 2 would be withdrawn and
dismissed. Defendant also agreed to have no contact with R.L.,2 the victim in one of the
dismissed cases.
In January 2021, defendant moved to replace his appointed counsel under People
v. Marsden (1970) 2 Cal.3d 118. After hearing from both defendant and his counsel
during an in camera hearing, the trial court found counsel had not provided ineffective
assistance and denied the motion.
After denying the Marsden motion, the trial court suspended the imposition of the
sentence and placed defendant on formal probation for two years subject to various terms
and conditions, including 60 days in county jail. The court imposed a $300 restitution
fine (§ 1202.4, subd. (b)), imposed and suspended a $300 probation revocation restitution
fine (§ 1202.44), and imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1))
and a $30 criminal conviction assessment (Gov. Code, § 70373). The court also imposed,
but stayed pending successful completion of probation, a total fine of $780 pursuant to
1 Undesignated statutory references are to the Penal Code.
2 To protect her privacy, we will refer to the victim by her initials. (Cal. Rules of
Court, rule 8.90(b)(4).)
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section 672.3The court found defendant had no ability to reimburse the county for the
cost of probation services or for the cost of his appointed counsel.
In August 2022, the probation department filed a petition to revoke defendant’s
probation based on his failure to report since May 2022. The trial court summarily
revoked probation and issued a bench warrant for defendant’s arrest. Defendant sought
to represent himself, and, after admonishing defendant pursuant to Faretta v. California
(1975) 422 U.S. 806, the court granted the request.
In September 2022, defendant admitted the probation violation. The probation
department prepared a supplemental probation report recommending probation be
revoked, reinstated, and extended.
In November 2022, defendant retained counsel. The following month, in
December 2022, the probation department filed a second petition to revoke probation,
alleging several new violations. The trial court summarily revoked probation. Defendant
admitted he violated probation, and the probation officer recommended the court
terminate probation and sentence defendant to an aggravated term.
At a contested hearing in September 2023, the trial court formally revoked and
declined to reinstate probation. The court sentenced defendant to a split midterm of two
years in county jail, with the initial six months in custody and the last 18 months on
mandatory supervision with various terms and conditions (§ 1170, subd. (h)(5)(A)-(B)).
The previously imposed fines, fees, and assessments remained unchanged.
3 This fine included a $200 base fine (§ 672 [where no fine is statutorily prescribed
for a criminal conviction punishable by jail or prison, the court may impose a fine on the
offender not exceeding $1,000 for misdemeanors or $10,000 for felonies]); a $200
penalty assessment (§ 1464, subd. (a)); a $20 DNA penalty assessment (Gov. Code,
§ 76104.6); an $80 DNA penalty assessment (Gov. Code, § 76104.7); a $100 state court
facilities construction fee (Gov. Code, § 70372, subd. (a)(1)); a $140 county penalty
assessment (Gov. Code, § 76000, subd. (a)(1)); and a $40 state criminal fine surcharge
(§ 1465.7, subd. (a)).
3
In March 2025, the probation department filed a petition to revoke mandatory
supervision, alleging that in February 2025 defendant completed the custody portion of
his sentence but then failed to report to the probation department as required. In April
2025, defendant was arraigned on the petition to revoke mandatory supervision, and the
trial court appointed him counsel at his request. Defendant then admitted the violation,
and the court referred the matter for a supplemental probation report, which
recommended that mandatory supervision be revoked and not reinstated.
On May 21, 2025, the trial court revoked and declined to reinstate mandatory
supervision. The court sentenced defendant to the midterm of two years in county jail on
count 1 (§ 1170, subd. (h)) and awarded him 274 days of credit (150 actual days plus 124
days of conduct credit), which left 456 days remaining to be served. The court lifted the
stay on the previously imposed probation revocation restitution fine (§ 1202.44, subd.
(b)), probation having been revoked.
Defendant timely appealed.
DISCUSSION
Defendant’s appointed counsel asked this court to independently review the record
to determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within
30 days from the date the opening brief was filed. We have not received any
communication from defendant.
Having undertaken an examination of the record, we have discovered an error at
sentencing. The terms of the parties’ plea agreement required the trial court to dismiss
the misdemeanor count for carrying a dirk or dagger (count 2) because defendant failed to
successfully complete probation, leaving the felony count remaining. While the trial
court sentenced defendant to two years on the felony count, it did not address the
misdemeanor count. In accordance with the parties’ plea agreement, we shall dismiss
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defendant’s misdemeanor conviction for carrying a dirk or dagger. (People v. Segura
(2008) 44 Cal.4th 921, 930-931 [a plea agreement is a contract that is binding upon the
parties and the court].)
DISPOSITION
The judgment is modified to dismiss defendant’s misdemeanor conviction for
carrying a direct or dagger (§ 21310; count 2). As so modified, the judgment is affirmed.
\s\
KRAUSE, J.
We concur:
\s\
MAURO, Acting P. J.
\s\
BOULWARE EURIE, J.
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