P. v. Kinney

Filed 4/29/08 P. v. Kinney CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of Inyo County. Dean T. Stout, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

On May 8, 2007, defendant and appellant Stuart Shelby Kinney was charged in a felony complaint with three counts of deliberate, premeditated, attempted murder (Pen. Code,  664, 187, subd. (a) (counts 1-3)), and one count of arson (Pen. Code, 451, subd. (b) (count 4)).

On May 29, 2007, under the terms of a negotiated plea agreement, defendant entered a no contest plea to count 4 (arson) and the trial court dismissed the remaining charges and allegations. The plea agreement left the trial court with sentencing discretion.

On August 24, 2007, defendant filed his Statement in Mitigation and Sentencing brief. On the same date, over defense counsels objection under Cunningham v. California (2007) 549 U.S. 270, the trial court sentenced defendant to the upper term of eight years. The court also ordered a restitution fine of $1,600 and a security fee of $20.

On October 23, 2007, defendant filed a timely notice of appeal.

II^[1]

STATEMENT OF FACTS

In May 2007, defendant and his family resided in a home on Barlow Lane in Bishop. Defendant and his sister, Kimberly Kinney, had been disputing over who was going to get the assignment of the property and home on Barlow Lane.

On May 5, 2007, defendant received a letter from the Bishop Tribal Council of the Bishop Paiute Tribe. The letter advised defendant that his sister would be assigned the house and the surrounding land. Defendant was extremely upset because he was not assigned the house.

On May 6, 2007, about 12:25 a.m., defendant contacted his mother, Judith Kinney, and told her, Judy[,] Im burning down the house. You better get out! The mother noticed a red glow coming from under [defendants] closed bedroom door . . . [and] dark smoke seeping from the door. She called 911. The mother reported that defendant piled pieces of firewood around his couch in the middle of his room, poured gasoline over the firewood and couch, and lit a fire. When Deputy Roberts arrived at the scene, he found a bedroom in flames and smoke coming out the front door.

At the time of the fire, three other people were inside the home. Everyone got out of the home without injury and the fire was extinguished before the entire house incurred damage.

III

ANALYSIS

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief; he has not done so.

We have now concluded our independent review of the record and find no arguable issues.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

GAUT

J.

MILLER

J.

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^[1] The parties stipulated to the police reports for a factual basis for defendants plea. Therefore, the statement of facts is based on the police reports.