People v. Kelly CA4/1 ( 2020 )

Filed 10/16/20 P. v. Kelly 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, D077357
Plaintiff and Respondent,
v. (Super. Ct. No. SCD283756)
DAN KELLY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey B. Barton, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
OVERVIEW
On November 4, 2019, the District Attorney for San Diego County filed
an information charging defendant Dan Kelly with one count of pimping in
violation of Penal Code section 266h, subdivision (a) (count 1); and one count
of selling a controlled substance, heroin, in violation of Health and Safety
Code section 11352, subdivision (a) (count 2). A jury found defendant guilty
of both offenses.
On February 28, 2020, defendant was sentenced to the upper term of
six years on count 1 and a concurrent three-year term (the lower term) on
count 2. The court further found that defendant had lost his veterans
benefits and had no ability to pay all fines, fees, and assessments except for
the $80 court assessment under Penal Code section 1465.8, and the $60
conviction assessment under Government Code section 70373. The court
reserved its jurisdiction to assess victim restitution under Penal Code section
1202.4, subdivision (f). Defendant was awarded 268 total custody days.
Affirmed.
BACKGROUND
Defendant has provided a detailed statement of facts. We summarize
briefly: In the months leading up to October 2019, the San Diego Police
Department (SDPD) received multiple complaints that narcotics activity and
pimping was taking place at a disabled veteran living facility on Alvarado
Road in San Diego. In early October, Vice Detective Zoller moved into the
facility, pretending to be a resident. He was joined there at times by Vice
Detective McNett, who pretended to be a friend and visitor of Zoller. The
detectives made contact with defendant, who sold heroin to Zoller. The
parties at trial stipulated the “black tar-like substance” defendant handed
Detective Zoller “was heroin and had a net weight that is without packaging
of .26 grams.”
Detective Zoller then asked if defendant could supply him and
Detective McNett with a prostitute who would be willing to have sex with
both men. About 15 minutes later, per their agreement, Detective Zoller
called defendant, and their conversation was recorded. Shortly thereafter,
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defendant brought a prostitute to Detective Zoller’s room. Defendant took
$100 each from Detectives Zoller and McNett, who also gave defendant a $20
“tip” as requested by defendant. Defendant then paid the prostitute $80, and
left the room. A short while later, the detectives gave the “bust signal” and
the prostitute was arrested, as was defendant a few minutes later.
Defendant filed a timely notice of appeal.
DISCUSSION
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal. 3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),
stating she has examined the record and finds no arguable issues which
would modify or reverse the case. She requests this court independently
review the record to determine if we see any issue which would modify or
reverse the case.
To assist the court, appellate counsel directs our attention to the
limiting instruction given by the court with respect to stating aloud that they
had reports about defendant engaging in pimping and narcotics activity;
whether defendant’s conduct met the definition of pimping even though no
lewd conduct occurred; and whether defendant was a candidate for a hearing
under section 1170.91, which would have made defendant’s military service a
mitigating factor if it led to his addiction or other mental health issues.
Defendant has been offered an opportunity to file a supplemental brief
on his own behalf. He has not done so.
We have reviewed the entire record as required by Wende and
Anders. We have not discovered any arguable issues for reversal on appeal,
including on the grounds raised by appellate counsel in her Wende brief.
Competent counsel has represented defendant on this appeal.
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DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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