People v. Kearney CA3

Filed 2/24/15 P. v. Kearney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C076400

Plaintiff and Respondent, (Super. Ct. No. CRF134506)

v.

ANDREW SCOTT KEARNEY,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

BACKGROUND

On November 2, 2013, defendant Andrew Scott Kearney was in West Sacramento knowingly in possession of a usable amount of methamphetamine and knew its value as a narcotic substance. In addition, defendant had been previously convicted of residential burglary and served a prior prison term. A complaint charged defendant with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1), and false representation of identity to a police officer (Pen. Code, § 148.9, subd. (a)).1 The complaint also alleged defendant had three prior strike convictions (§ 667, subd. (d)) and had served five prior prison terms (§ 667.5, subd. (b)). Defendant pleaded no contest to possession of a controlled substance and admitted he had one or more prior strike convictions and had served a prior prison term. The trial court dismissed the remaining counts and allegations. The trial court sentenced defendant in accordance with the plea to an aggregate term of five years in state prison and ordered defendant to pay a restitution fund fine of $300 (§ 1202.4), a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), a penalty assessment of $150, a drug program fee of $150 (Health & Saf. Code, § 11372.7), a penalty assessment of $450, a $40 court operations assessment (Pen. Code, § 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). The trial court awarded defendant 236 days of presentence custody credit. The trial court denied defendant’s request for a certificate of probable cause. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable