Filed 7/31/14 P. v. Kent CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049669

                   v.                                                  (Super. Ct. No. 06WF3671)

DAVID NEIL KENT,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Affirmed.
                   Michelle C. Zehner, under appointment by the Court of Appeal, for
Defendant and Appellant.
                                              *              *               *
              A jury convicted David Neil Kent of possessing child pornography
(Pen. Code, § 311.11, subd. (a)(1)), all statutory references are to the Penal Code unless
noted), attempting to distribute child pornography (§ 311.2, subd. (c); § 664), and
distributing child pornography (§ 311.2, subd. (c)). It also convicted him of possessing
methamphetamine for sale (Health & Saf. Code, § 11378) and possessing cocaine (Health
& Saf. Code § 11350).
              The court imposed a sentence of three years and four months,1 but
suspended execution of the sentence and placed Kent on probation under various terms

and conditions, including a 365-day jail term and lifetime registration as a sex offender.
We affirmed the judgment. (People v. Kent (Nov. 25, 2013, G047157) [nonpub. opn.].)
              In July 2013, the probation officer filed a petition alleging Kent violated
probation. In January 2014, the probation officer filed a second violation petition. The
trial court found Kent violated probation and lifted the suspension of his sentence.
              Kent’s appointed counsel filed a brief under the procedures outlined in
People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel summarized the facts of the
case, the procedural history, and possible legal issues with citations to the record and
appropriate authority, but raised no specific issues, and asked this court to review the

record to determine whether there were any arguable issues. Counsel did not argue
against her client or assert the appeal was frivolous. Counsel submitted a declaration
stating she reviewed the case, she advised Kent of the nature of the brief, she sent Kent a
copy of the brief and the appellate record, and informed him he could file a brief on his
own behalf. Counsel did not seek to withdraw, but she advised Kent he could move to



       1
              At the original sentencing, the trial court misstated the aggregate term as
four years and four months, and we repeated the error in our prior opinion.

                                             2
have counsel relieved. We gave Kent 30 days to file a supplemental brief. He did not
avail himself of the opportunity.
                         FACTS AND PROCEDURAL BACKGROUND
              On July 19, 2013, the probation department filed a petition alleging Kent
violated his probation. According to the petition, Kent was required as condition of his

probation to submit his person and property to search and seizure at any time of the day
or night by probation officers or law enforcement personnel. He was also required to
“not subscribe to or have access to any form of on-line internet service, without written

permission of the probation officer.”
              According to the petition, on July 17, 2013, Kent failed to provide the
passcode to an Apple iPod device found in his bedroom upon demand of the probation
officer. A search of the iPod revealed Kent “had multiple automatic Wi-Fi wireless
network connections for internet access in the vicinity of his residence” and “[t]he device
also showed [Kent] had recent correspondence with use of multiple email accounts and
accessed Craiglist’s personal posting.” Under the heading “Circumstances of the
Violation,” the petition recounted that during the search of Kent’s bedroom, an iPod was
found and Kent “was directed to provide the pass code to the iPod device; however, he

claimed he did not know it and that the iPod belonged to his sister. The undersigned
[probation] officer2 contacted [Kent’s] sister Susan C. and learned she had two iPod
devices, one in her possession and the other she did not know of its whereabouts.” Susan


       2
               The petition provides near the bottom of the first page the statement, “I
declare under penalty of perjury that the foregoing is true and correct.” The copy of the
petition in our record does not include a signature, but contains the printed statement it is
“by” Jerrold K Suclla, Supervising Probation Officer, “[o]n behalf of Con Van Nguyen,”
“Supervising Probation Officer.” The court did not admit the petition as evidence, and
neither Suclla nor Nguyen testified at the violation hearing.

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was evasive about whether she allowed Kent to use her iPod, but she provided a pass
code that unlocked the device found in Kent’s bedroom. “Upon inspection of the iPod, it
was learned the device had multiple automatic Wi-Fi wireless connections for internet
access in the vicinity of [Kent’s] residence. There were multiple e-mail address accounts
with [Kent’s] name and his mobile phone number was found in some of his e-mail
correspondences. The most recent e-mail correspondence was dated July 15, 2013
between the probationer and a known associate” of Kent’s. The petition also provided
other information indicating Kent’s performance on probation was “extremely poor” in

the probation officer’s opinion.~
              On January 8, 2014, the probation department filed a second petition
alleging Kent violated his probation: “On or about December 17, 2013, a forensic search

of the probationer’s Apple iPod 4 was completed in the High Technology Lab of the
Orange County Probation Department. The Extraction Report provided 190 entries of
Internet Web History from April 20, 2013 to July 11, 2013.”3 Under the heading
“Circumstances of the Violation,” the petition stated the district attorney requested a
forensic search of the iPod, the ensuing extraction report was 1,896 pages, the report
reflected the device had been used to perform various Internet searches involving sexual

matter and drugs.
              On January 9, 2014, the prosecutor filed a brief on the admissibility of
evidence at a probation revocation hearing. It noted reliable hearsay was admissible.
The brief did not address the specific evidence in the case.
              Jason Doud testified at the January 9, 2014 probation violation hearing he
was a probation officer assigned to the sex crimes unit. He and Kent’s probation officer,

       3
              This petition was “by” David P. Haner, Supervising Probation Officer,
“[o]n behalf of Jason Doud,” “Supervising Probation Officer.”

                                             4
Van Nguyen, searched Kent’s bedroom on July 17, 2013, and found an iPod. Doud gave
the iPod to Eric McCully in the department’s high technology crime lab. Doud received
a forensic or extraction report reflecting the iPod accessed the Internet on dates ranging
from April 20, 2013 through July 11, 2013.
              The court overruled Kent’s objections to the foundation for the extraction
report, and Doud’s qualifications. Counsel noted there were “two separate violations” or
petitions filed, and asked “which one the prosecution is going on.” The prosecutor
responded “both.” Kent apparently supplied health records (not in the appellate record)

showing he was hospitalized until June 27 “which was pretty well close to when this
incident happened.”
              The court took a recess to review documents (not in the appellate record)

and found Kent violated probation. The court noted it “doesn’t find that [] discussion of
what appears to be consensual – consensual adult contact via e-mail between two people
is in any way a violation.” The court scheduled a sentencing hearing.4
              At the sentencing hearing on January 30, 2014, the court stated it had
considered “extensive additional documents” provided by Kent (not in the appellate
record). It lifted the stay of the previously imposed prison sentence. The court credited

Kent with the actual days spent in jail as a condition of probation and following his arrest
for the probation violation, plus applicable conduct credits.
              Kent filed a notice of appeal February 11, 2014, indicating he was
appealing after a contested probation violation. (§ 1237, subd. (b).) Appointed appellate

       4
              In early December 2013, Kent file a motion to dismiss the probation
violation proceeding on due process grounds, arguing he had been arrested July 17, and
he had not been provided a hearing within a reasonable time. At the violation hearing,
counsel complained “they waited so long to bring forth this information about the
extraction.” The court evidently denied the motion to dismiss.

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counsel advised this court of possible issues, including whether Kent’s trial counsel
performed ineffectively, whether sufficient evidence supported Kent’s probation
violation, and whether the court correctly calculated Kent’s custody and conduct credits.
                                       DISCUSSION

              Following the Wende guidelines, we have reviewed counsel’s brief and the
entire appellate record and discern no arguable issue. Kent has not availed himself of the
opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106 [appellate
court must address issues raised personally by appellant in a Wende proceeding]), nor has
he requested to have appellate counsel relieved. Consequently, we affirm the judgment.
(Wende, supra, 25 Cal.3d at p. 443.)
                                       DISPOSITION
              The judgment is affirmed.




                                                 ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




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