People v. Kelley CA3

California Court of Appeal May 28, 2015 No. C077107Unpublished

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Holding. The court affirmed the defendant's conviction, finding that his claims of ineffective assistance of counsel were not cognizable on appeal because they relied on matters outside the record, and that his other challenges to the plea and evidence were meritless.

Issues

Whether the trial court erred in finding a sufficient factual basis for the defendant's no contest plea.
Whether the defendant's guilty plea waived his right to contest the sufficiency of the evidence.
Whether the defendant's claim of ineffective assistance of counsel is cognizable on direct appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence at the preliminary hearing, as summarized in our recitation of the facts, established a prima facie case of possession of child pornography by a person with a prior sex offense conviction.”

“A guilty plea admits every element of the charged offenses, waiving any right to contest the sufficiency of the evidence.”

“As defendant’s assertion of ineffective assistance of counsel is based on facts outside the appellate record, it is not cognizable on appeal.”

Filed 5/28/15 P. v. Kelley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C077107

Plaintiff and Respondent, (Super. Ct. No. 62-128429)

JOHN ALAN KELLEY,

Defendant and Appellant.

Defendant John Alan Kelley pleaded no contest to possession of child pornography and admitted one prior strike and two prior prison terms. He was sentenced to six years in state prison. He obtained a certificate of probable cause and appeals. We provide the following brief summary of the facts and procedural background. (People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On February 23, 2014, defendant was discovered printing photographs of mostly underage females at a self-service photo booth in a Target store in Auburn. Defendant had printed 51 photographs. The subjects in the pictures ranged from about eight years

old to an adult woman. They were naked in some of the photographs. In only a small number of the photographs was it not clear that the subjects were minors; many of them were of prepubescent girls displayed in a very sexually suggestive manner.

Defendant was on parole and a registered sex offender. After being given his Miranda1 warnings, defendant said he downloaded the images onto a thumb drive from a computer at the Auburn public library. He admitted printing the photographs and knowing it was wrong to possess them.

Defendant was charged with possession of child pornography after having suffered a prior conviction for a sex offense (Pen. Code, § 311.11, subd. (b))2 with allegations of two strikes (§ 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667.5, subd. (b)). Defendant pleaded no contest to the charged offense and admitted one strike and two prior prison terms; the remaining allegations were dismissed under the plea agreement. The trial court imposed a stipulated term of six years in state prison, ordered various fines and fees, and awarded 260 days of presentence credit (130 actual and 130 conduct).

People v. Kelley CA3

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THE PEOPLE, C077107

JOHN ALAN KELLEY,

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DISPOSITION

BUTZ , J.

HOCH , J.

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