People v. Evans CA3 ( 2021 )

Filed 10/15/21 P. v. Evans 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
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THE PEOPLE, C092806
Plaintiff and Respondent, (Super. Ct. Nos.
18CF00099, 19CF05374,
v. 20CF00532)
KEMAIN ANDREW EVANS,
Defendant and Appellant.
Appointed counsel for defendant Kemain Andrew Evans has asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This appellate action arises from three separate cases that defendant resolved
through no contest or guilty pleas. On April 18, 2018, defendant resolved case No.
18CF00099 (the resisting case) by pleading no contest to resisting an executive officer
(Pen. Code, § 69, subd. (a))1 and admitting one prior prison term (§ 667.5, subd. (b)) in
1 Undesignated statutory references are to the Penal Code.
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exchange for the dismissal of the other enhancement allegations. On July 25, 2018, the
trial court sentenced defendant to an aggregate local prison sentence of four years,
comprised of the upper term of three years in county prison for resisting plus one year
consecutive for the prior prison term. The court imposed a split sentence, suspending the
last 731 days for defendant to serve on mandatory supervision. The court also imposed a
$300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation restitution
fine (§ 1202.45), a $30 conviction assessment (Gov. Code, § 70373), and a $40 court
operations assessment (§ 1465.8). Defendant also was awarded 176 actual days plus 176
conduct days, for a total of 352 days of custody credit.
On December 13, 2019, defendant resolved case No. 19CF05374 (the jail case) by
pleading no contest to bringing a controlled substance into jail (§ 4573.5) and the
remaining count was dismissed. Defendant was initially released on his own
recognizance, but was back in custody by the time of his original sentencing hearing on
new charges.
On August 19, 2020, defendant resolved case No. 20CF00532 (the weapon case)
by pleading guilty to possession of metal knuckles (§ 21810), and in exchange the court
dismissed the remaining count and allegation.
Resentencing on the resisting case and initial sentencing for the other two cases
was originally scheduled for September 30, 2020, but it was determined on that date that
defendant already had completed his time in the resisting case. Sentencing for the jail
and weapon cases was rescheduled for October 7, 2020, at which time the court imposed
an aggregate local prison sentence of two years. This was comprised of the low term of
16 months for the jail case and a consecutive term of eight months (one-third the midterm
of two years) for the weapon case. Given defendant’s poor prior performance on
mandatory supervision, further mandatory supervision was denied. The court also
imposed a $300 restitution fine for each case (§ 1202.4, subd. (b)), two $30 conviction
assessments (Gov. Code, § 70373), and two $40 court operations assessments (§ 1465.8).
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For the jail case, the court awarded 95 days actual credit plus 94 days conduct credit, for
a total of 189 days.
Defendant timely filed notices of appeal in each case without seeking certificates
of probable cause. Defendant’s attorney on appeal successfully sought correction of the
custody credit allocation from the October 7, 2020 sentencing, resulting in the award of
additional custody credits that had been erroneously credited to the resisting case.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and asks this court to
review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days from the date the opening brief was filed. More than
30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable errors that would result in a disposition more favorable to defendant.
Accordingly, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
HULL , Acting P. J.
RENNER , J.
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