People v. Davey CA4/1 ( 2015 )

Filed 3/25/15 P. v. Davey CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065984
Plaintiff and Respondent,
v. (Super. Ct. No. SCD134140)
KEVIN ROGER DAVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth
K. So, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Kevin Roger Davey appeals the denial of his motion to recall his sentence under
Penal Code section 1170.126. Davey had been convicted in California of committing
sexual offenses against minors. He had also been convicted of aggravated sodomy
against a nine-year-old child and aggravated burglaries in other states. In 1998, Davey
pleaded guilty to failing to register as a sex offender and was sentenced to 25 years to
life.
Appointed appellate counsel filed a brief presenting no argument for reversal, but
invited this court to review the record for error in accordance with People v. Wende
(1979) 25 Cal. 3d 436. After having independently reviewed the entire record for error, as
required by Anders v. California (1967) 386 U.S. 738 and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Davey filed a motion to recall his sentence under Penal Code section 1170.126.
At a hearing on April 11, 2014, Davey said he was mentally ill and needed treatment. He
was not seeking release into the community but wanted to attend a program designed for
violent sexual offenders committed to the state mental health system. Davey's trial
counsel acknowledged if Davey qualified as a sexually violent predator, he would not be
eligible for a hearing to recall his sentence under section 1170.126.
The People presented evidence concerning Davey's prior criminal offenses and
extensive prison disciplinary record, his admissions that he wanted to have sexual
relations with boys, and a psychologist's report stating that he obviously represents a
sexual threat to the community were he not incarcerated.
The trial court found that resentencing Davey would pose an unreasonable public
safety risk and denied his petition.
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DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings in the trial court. Counsel has presented no argument for reversal, and
invited this court to review the record for error in accordance with People v. Wende,
supra, 25 Cal. 3d 436. Pursuant to Anders v. California, supra, 386 U.S. 738, counsel
identified the following as a possible, but not arguable, issue: "Did the trial court abuse
its discretion in rendering judgment?"
A review of the record pursuant to Wende and Anders, including the issue
suggested by counsel, has disclosed no reasonably arguable appellate issue. Davey has
been represented by competent counsel on this appeal. We granted Davey permission to
file a brief on his own behalf. He has not responded.
DISPOSITION
The judgment is affirmed.
MCDONALD, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
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