People v. Kibby CA3

Filed 9/4/15 P. v. Kibby CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C078026

Plaintiff and Respondent, (Super. Ct. No. CM038284)

v.

ELIJAH BLUE KIBBY,

Defendant and Appellant.

Defendant Elijah Blue Kibby pleaded no contest to first degree burglary (Pen. Code, § 459) and was sentenced to the upper term of six years in state prison.1 On appeal, defendant contends the trial court abused its discretion in imposing the upper term. We conclude the court acted within its discretion and shall affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND

On March 13, 2013, a 13-year-old girl was home alone when she heard a knock at the front door. She looked through the peephole and saw defendant, a 25-year-old man, five feet nine inches tall, 200 pounds, with tattoos on his forearms, neck, and face, standing at her front door. She did not open the door; defendant continued knocking for five minutes.

Defendant then walked through the side gate and opened the side door into the house. The young girl heard the noise at the side of the house and she saw the door “partially opened” with defendant standing “in front of it.” She slammed the door closed and locked it before defendant could get inside. Undeterred, defendant turned the door handle several times and pushed on the door, while repeatedly asking the girl if she was home alone. Scared, the girl called her father and began locking all the windows in the house.

The young girl’s father drove home immediately and saw defendant standing in front of the family home. The father approached defendant and defendant denied being on the property; defendant started to walk away and the father followed him. While following defendant, the father called the Butte County Sheriff’s Department. Sheriff’s deputies soon arrived and arrested defendant, whom they believed to be under the influence of a controlled substance.