Filed 10/11/13 P. v. Kelly 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066241
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. LF009086A)
                   v.

KEVIN LEROY KELLY,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Deborah Prucha, 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 Wiseman, Acting P.J., Levy, J. and Cornell, J.
       The following was alleged in a criminal complaint filed May 23, 2012: Appellant,
Kevin Leroy Kelly, committed second degree burglary (Pen. Code, §§ 459; 460, subd.
(b)) and three other felonies; as to each charged offense, he was ineligible for a county
jail sentence due to prior convictions (Pen. Code, § 1170, subd. (h)(3)); he had suffered
three “strikes”;1 and he had served seven separate, prior prison terms for felony
convictions (Pen. Code, § 667.5 subd. (b)).
       On October 12, 2012, pursuant to a plea agreement, appellant pleaded no contest
to the second degree burglary charge and admitted one strike and one prior prison term
enhancement allegation. In that same proceeding, the court, consistent with the plea
agreement, dismissed, on the condition that the plea agreement remain in effect, the
remaining substantive offense charges, special allegations, and the charges in a separate
case. Also consistent with the plea agreement, on October 18, 2012, the court struck the
single strike appellant had admitted and imposed a sentence of four years, consisting of
the three-year upper term on the burglary count and one year on the prior prison term
enhancement.
       On November 30, 2012, appellant filed a timely notice of appeal in which he
indicated his appeal was “based on the sentence or other matters occurring after the plea.”
Insofar as the record reveals, appellant did not request, and the court did not issue, a
certificate of probable cause (Pen. Code, § 1237.5).
       Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)




1       We use the term “strike,” in its noun form, as a synonym for “prior felony
conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-
(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a
defendant to the increased punishment specified in the three strikes law.


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       Appellant has not responded to this court’s invitation to submit additional briefing.
We affirm.
                                          FACTS
       It was alleged in count 1 of the complaint, to which appellant pleaded no contest,
that “on or about between March 12, 2012 and March 13, 2012, [appellant] … willfully
and unlawfully enter[ed] a building belonging to Norman Etchison Custom Harvesting,
with the intent to commit larceny or any felony ….” (Unnecessary capitalization
omitted.)2
                                      DISCUSSION
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




2      No preliminary hearing was conducted and the abbreviated probation officer’s
report did not contain a summary of the facts of the instant offense.


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