People v. Kincherlow CA2/7 ( 2021 )

Filed 9/7/21 P. v. Kincherlow CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310653
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141321-03)
v.
KOBE KINCHERLOW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Pat Connolly, Judge. Affirmed.
Larenda R. Delaini, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________
Kobe Kincherlow appeals from the judgment entered after
he was resentenced in accordance with this court’s instructions in
Kincherlow’s direct appeal. (People v. Smith (Sept. 9, 2020,
B290425) [nonpub. opn.].) No arguable issues have been
identified following review of the record by Kincherlow’s
appointed appellate counsel or our own independent review. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial Kincherlow and his confederate
Justin Glen Smith were convicted of various gang-related crimes
arising from their participation in a scheme to extort money from
a recycling center in South Los Angeles. We affirmed the
convictions and remanded the matters as to both Kincherlow and
Smith for resentencing due to several sentencing errors, as well
as to permit the trial court to apply new ameliorative sentencing
legislation.
Specifically with respect to Kincherlow, the trial court had
originally sentenced him as a third strike offender to 25 years to
life for robbery, plus 10 years for a criminal street gang
enhancement and one year for a firearm enhancement, plus a
consecutive term of 14 years to life as a second strike offender for
conspiracy to commit extortion to benefit a criminal street gang,
plus five years for a prior serious felony conviction (aggregating
55 years to life). The court imposed concurrent sentences of
22 years for assault with an assault weapon with enhancements,
24 years for assault with a semiautomatic weapon with
enhancements, three years for possession of a firearm by a felon
and life plus one year for extortion with enhancements. The
court also imposed $240 in court operation assessments, $180 in
court construction fees and a restitution fine of $5,000.
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The sentence on the robbery charge, we explained on
appeal, was incorrect. Rather than imposing Penal Code
section 186.22, subdivision (b)(1)(C)’s 10-year criminal street
gang enhancement for a violent felony, the court should have
imposed the 15-year minimum parole eligibility of section 186.22,
subdivision (b)(5). In addition, Kincherlow had been convicted of
both conspiracy to commit extortion and the underlying crime of
extortion. The trial court ordered the sentences for the two
offenses to run concurrently, but, as the Attorney General
conceded, the sentence for extortion (including enhancements)
should have been stayed under Penal Code section 654.
The enhancements for Kincherlow’s concurrent sentence for
assault with a semiautomatic firearm were also misapplied.
Kincherlow was sentenced to the upper term of nine years, to
which the court added 10 years for the true finding on the gang
enhancement and five years for the prior serious felony
enhancement under Penal Code section 667, subdivision (a), for a
total of 24 years. The prior serious felony enhancement should
not have been applied to both this count and to the count for
assault with an assault weapon since determinate terms were
imposed for each aggravated assault. As for the gang
enhancement, the court imposed 10 years under Penal Code
section 186.22, subdivision (b)(1)(C), when it should have imposed
the five-year enhancement under subdivision (b)(1)(B), as the
crime was a serious felony, not a violent one.
We also held Kincherlow was entitled to the benefit of
Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2), which,
effective January 1, 2019, gave the trial court discretion to strike
the formerly mandatory five-year prior serious felony
enhancement of Penal Code section 667, subdivision (a), and
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Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), which, effective
January 1, 2020, limited the one-year prior prison term
enhancement of Penal Code section 667.5, subdivision (b), to
certain sexually violent offenses. Finally, we held at
resentencing Kincherlow could request an ability-to-pay hearing
with respect to the imposition of fines, fees and assessments as
provided in our decision in People v. Dueñas (2019)
30 Cal.App.5th 1157.
At the resentencing hearing held January 27, 2021, the
trial court followed our directions and imposed an aggregate
indeterminate sentence of 26 years to life: 25 years to life as a
third strike offender for robbery, plus one-year for the firearm
enhancement with a minimum 15-year parole eligibility. A term
of 14 years to life for conspiracy to commit extortion (seven years
to life doubled as a second strike offender) was imposed to run
concurrently with the sentence for robbery. The five-year prior
serious felony enhancements pursuant to Penal Code section 667,
subdivision (a), were dismissed; the prior prison term
enhancements were stricken; and the court corrected the gang
enhancement on the concurrent aggravated assault sentence.
Sentence on the extortion count was stayed, as we had
instructed.
The court denied Kincherlow’s motion to waive all fees,
fines and assessments, but reduced the restitution fine from
$5,000 to $300 based on Kincherlow’s financial status. The other
fines and fees remained the same.
Kincherlow filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Kincherlow on appeal.
After reviewing the record, counsel filed a brief raising no issues.
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On July 19, 2021 counsel wrote Kincherlow and advised him that
counsel intended to file a no-issue brief and that Kincherlow
personally could submit his own supplemental letter brief in
which he identified any contentions or issues he wished us to
consider. We have received no response.
We have reviewed the entire record in this case and are
satisfied appellate counsel for Kincherlow has complied with
counsel’s responsibilities and there are no arguable issues.
(Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly
(2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d
436, 441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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