People v. Earby CA6

Filed 7/21/14 P. v. Earby CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040349 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1353724)

v.

DARNELL JOSEPH EARBY,

Defendant and Appellant.

Defendant Darnell Joseph Earby appeals after pleading no contest to stalking with a prior felony stalking conviction (Pen. Code, § 646.9, subd. (c)(2)),1 admitting that he had three prior strikes (§§ 667, subds. (b)-(i), 1170.12), and admitting that he had served two prior prison terms (§ 667.5, subd. (b)). He was sentenced to five years in prison. On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant. Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme

1 All further statutory references are to the Penal Code unless otherwise indicated.

Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.

FACTUAL AND PROCEDURAL BACKGROUND A. Offense2 Defendant’s ex-girlfriend reported to the police that defendant had made threats to her and her family primarily by text messages beginning in early August 2012. While the victim was making the report to the police, she received a text message from defendant that contained a picture of defendant holding a gun to his mouth. Defendant’s numerous text messages included threats to kill the victim, her children, and her mother. For example, text messages to the victim stated, “Bitch, I’m gonna kill you, your kids, mama,” “somebody gonna die,” and “I’m coming for your kids bitch.” Text messages to the victim’s family members included statements such as “let her know I’m going to kill that bitch,” and that defendant was going to “ ‘F her up.’ ” In multiple messages defendant also indicated he was coming to the house, and that “somebody is going to pay.” The text messages were sent at different times, including late at night and in the early morning hours. After the victim stopped responding to the texts, defendant became “extremely vicious and graphic” with descriptions of how he would kill the victim or her children. For example, he stated that he would beat their faces in until they died. The victim also reported that in the early morning of August 14, 2012, she saw defendant climbing in her bedroom window with a flashlight in one hand and a gun in the other hand. The victim ran to a neighbor’s house and called the police. The victim was extremely fearful for her life and the lives of her mother and children. She told the police that she was not going to return to her residence and that she