People v. Hess CA5 ( 2020 )

Filed 11/24/20 P. v. Hess CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080204
Plaintiff and Respondent,
(Super. Ct. No. MF013005A)
v.
KEITH MICHAEL HESS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Chad A. Louie,
Judge.
James E. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Smith, J. and Meehan, J.
STATEMENT OF THE CASE
On June 19, 2018, a complaint was filed, charging Keith Michael Hess (defendant)
with unlawful possession of a firearm (Pen. Code,1 § 29800, subd. (a)(1); count 1) and
unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2).2
On December 11, 2018, defendant was advised of, and waived, his constitutional
rights pursuant to Boykin/Tahl.3 He was advised of the consequences of pleading guilty
or no contest to count 1, including that his maximum confinement time was three years,
but, pursuant to the plea agreement, he would receive three years’ probation and up to
180 days in custody with a referral to the Work Release Program; be subject to certain
monetary obligations; and that count 2 and two other pending cases would be dismissed
with a Harvey waiver.4 Counsel stipulated that the offense reports furnished a factual
basis for the plea.
Defendant pled no contest to count 1. The remaining count and other cases were
dismissed with a Harvey waiver, on condition that the plea remained in full force and
effect. In addition, defendant entered an Arbuckle waiver with respect to sentencing.5
On February 8, 2019, imposition of sentence was suspended, and defendant was
placed on probation on various terms and conditions, including that he spend 180 days in
1 All statutory references are to the Penal Code unless otherwise stated.
2 The remaining four counts of the complaint pertained to a codefendant and are not
pertinent to this appeal.
Defendant’s possession of a firearm and ammunition were alleged to be unlawful
based on his prior felony conviction of a drug offense. That offense was reduced to a
misdemeanor pursuant to section 1170.18, subdivisions (a) and (b), prior to the filing of
the instant complaint. Reduction of the offense did not reinstate defendant’s right to
possess a firearm or prevent his conviction under section 29800 et seq. (§ 1170.18,
subd. (k).)
3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
4 People v. Harvey (1979) 25 Cal.3d 754.
5 People v. Arbuckle (1978) 22 Cal.3d 749.
2.
custody with a referral to the Work Release Program. Defendant was ordered to enroll in
that program by February 15, 2019, or report to jail on March 8, 2019. Defendant was
also ordered to pay a $40 fee pursuant to section 1465.8, a $30 fee pursuant to
Government Code section 70373, a $300 restitution fine pursuant to section 1202.4,
subdivision (b), a $300 probation revocation restitution fine (which was suspended
subject to probation revocation proceedings) pursuant to section 1202.44; reimburse the
county $401 for the cost of preparation of the presentence investigation report; and pay
$40 per month for supervision costs. Defendant was awarded a total of four days’ time
credits, calculated on a two-for-two basis.
On April 12, 2019, probation was revoked after defendant failed to report to the
Work Release Program or jail as ordered. On June 6, 2019, defendant was advised of and
waived his rights, and admitted the violation of probation on condition that he receive the
middle term of two years in prison, to run concurrently with the sentence in another
case.6 Counsel stipulated there was a factual basis for the admission based on the new
law violation.
On August 16, 2019, probation was terminated. Defendant was sentenced to state
prison for the middle term of two years, to run concurrently with his sentence in another
case. He was awarded a total of 137 days of credit, calculated on a two-for-two basis.
The monetary obligations previously imposed on February 8, 2019, were reimposed, in
addition to which defendant was ordered to pay the previously suspended $300 probation
revocation fine. In addition, the court imposed a $300 restitution fine pursuant to section
1202.45, but suspended payment of that fine subject to parole or postrelease supervision
revocation proceedings.
Defendant filed a timely notice of appeal and obtained a certificate of probable
cause.
6 That case is not before us on this appeal.
3.
FACTS7
On the night of June 16, 2018, deputies were dispatched to a residential property
regarding suspicious circumstances. There, they contacted defendant and another man.
A rifle was found in plain view on the rear passenger floorboard of defendant’s truck.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating that defendant was advised he
could file his own brief with this court. By letter dated February 26, 2020, we invited
defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
7 The facts are derived from the probation officer’s report, which summarized the
offense reports that furnished the factual basis for defendant’s plea.
Defendant filed a motion for return of property, ostensibly concerning the firearm
seized in this case. The facts asserted therein (including the date the gun was seized and
the type of firearm) do not — contrary to the facts set out in the probation report —
comport with the allegations contained in count 1 of the complaint.
4.