P. v. Kirby
Filed 9/13/13 P. v. Kirby CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH DALE KIRBY III,
Defendant and Appellant.
D062899
(Super. Ct.
No. JCF26709)
APPEAL from
a judgment of the Superior Court
of
County, Donal B. Donnelly, Judge. Affirmed as modified; remanded with
directions.
Appellate
Defenders, Patricia Mary Ihara for the Defendant and Appellant under
appointment by the Court of Appeal.
Kenneth
Dale Kirby III pleaded no contest to one count of assault with a firearm (Pen.
Code, § 245, subd. (a)(2)) and admitted allegations that he personally used a
firearm during the commission of the offense (Pen. Code, § 12022.5, subd.
(a)). The trial court denied probation,
awarded two days of actual custody credit,
and sentenced Kirby to a six-year prison term consisting of a three-year
midterm for the assault, and a consecutive three-year term for the
fines. Kirby filed the present
appeal. We affirm the judgment and
remand with directions to amend the abstract of judgment as described below.
FACTUAL AND
PROCEDURAL BACKGROUND
Kirby
pleaded guilty and stipulated to use the preliminary
hearing transcript as the factual basis for his plea. Therefore, we state the facts from that
hearing, in which the sole witness was an investigator for the Imperial County
Sheriff's Office.
On November 24, 2010, Kirby's aunt was
outside William DaSilva's trailer speaking on the phone with her husband, who
was in Afghanistan. DaSilva got into an argument with her and
called her a "bitch."
The next
day, Kirby and his cousin went to the trailer to look for DaSilva, and found
him outside. Kirby was aggressive and
confrontational, and told DaSilva not to "fuck with his aunt when she was
on the phone to Afghanistan." The men engaged in an angry exchange, during
which DaSilva got within inches of Kirby's face. When DaSilva told Kirby to mind his own
business and get out, Kirby pulled out a handgun and pointed it at DaSilva's
face, telling DaSilva he "was going to blow his fucking head off" and
DaSilva should listen to him. When DaSilva's
daughter tried to intervene, Kirby turned the gun to her and told her to mind
her own business or he was going to blow her head off too. Police were eventually involved and Kirby
admitted to an investigator that he went to DaSilva's trailer with a gun for
protection and pulled it out, but denied pointing it at DaSilva.
In May
2012, Kirby pleaded no contest as indicated above. During the plea hearing, the court addressed
Kirby and his codefendant, asking if they both reviewed the change of plea form
carefully with their lawyers and understood the advisement of rights, as well
as the explanation of the consequences of his plea. Kirby responded that he had, and also advised
the court in response to its questions that he understood he was giving up his
right to remain silent; right to a jury trial; right to see, hear, and question
any witnesses that would testify against him; and his right to present
witnesses on his behalf. Kirby stated he
had had enough time to speak with his lawyer about any defenses, about his
rights, about the waivers he had entered into, and the potential consequences
of his plea. He stated he was entering
into the plea in order to take advantage of the plea bargain and to avoid the
possibility of greater punishment if convicted after a jury trial. Kirby's counsel affirmed he spoke with Kirby
about all of those matters, gave him a recommendation based on his legal
opinion about the strengths and weaknesses of his case, and left the ultimate
decision to him. Counsel explained Kirby
was pleading no contest to a strike offense under California
law that would limit his credits in future cases.
In
sentencing Kirby, the court stated in part, "I should probably note for
the record that the Court will consider those facts as defined by law set forth
in the appropriate documents, which would include the probation officer's
reports, reliable portions of statement in mitigation and aggravation, as well
as associated documents that are deemed reliable, including the portions of the
investigative report set forth as part of the sentencing record." It found the primary factors in mitigation
were Kirby's lack of any significant criminal record, and the fact there was no
evidence that in the past he had engaged in violent conduct indicating a danger
to society. It found in aggravation,
however, that Kirby's crime involved a threat of great bodily harm or disclosed
a high degree of callousness. The court sentenced
Kirby as stated above, including by awarding two days of actual custody credits
for Kirby's time in the Imperial County Jail on December 1, 2010, and April 22, 2011.
DISCUSSION
Appointed
appellate counsel has filed a brief summarizing the proceedings below.
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. Under Anders
v. California (1967) 386 U.S. 738, counsel identifies three possible appellate
issues: (1) whether the trial court abused its discretion by finding an
aggravating factor that supported imposition of the midterm on the assault
charge but failing to mention the mitigating factor of Kirby's early admission
of guilt; (2) whether Kirby's presentence credits were correctly calculated;
and (3) whether Kirby was properly advised of his constitutional rights and
consequences of pleading before entering into his no contest plea.
We granted
Kirby permission to file a supplemental brief on his own behalf. He submitted a letter stating there was no
evidence he pointed a gun at anyone; he was not notified about his assault
charge; the incident occurred on November 24, 2010, not the previous day; and
neither his own nor his cousin's statements were in the record or
disclosed. Asserting this was his first
offense, Kirby argues he was a registered gun owner and did not terrorize
anyone, but is a law-abiding citizen who has suffered an injustice.
Our review
of the record pursuant to People v. Wende,
supra, 25 Cal.3d 436 and Anders v. California, supra, 386
U.S. 738, including the possible issues referred to by Kirby and his appellate
counsel, has revealed no reasonably arguable appellate issue. Competent
counsel has represented Kirby on this appeal.
The minutes
and reporter's transcript of Kirby's sentencing hearing indicate that the trial
court imposed an administrative fee of $100 for preparation of the probation
officer's report pursuant to Imperial County Ordinance No. 2.84.040 and Penal
Code section 1203.1b, subdivision (a).
That fee, however, is not reflected in the abstract of judgment. The abstract of judgment shall be amended to
accurately reflect the court's order.
DISPOSITION
We remand
the matter for the trial court to amend the abstract of judgment to reflect
imposition of an administrative fee of $100 for preparation of the probation
officer's report pursuant to Imperial County Ordinance No. 2.84.040 and Penal
Code section 1203.1b, subdivision (a).
The court is directed to forward a certified copy of the amended
abstract of judgment to the Department of
Corrections and Rehabilitation. As
modified, the judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER,
Acting P. J.
McINTYRE,
J.
