People v. Simmons CA4/1

Filed 9/8/20 P. v. Simmons CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076685

Plaintiff and Respondent,

v. (Super. Ct. No. SCD281722)

KENNETH DEWAYNE SIMMONS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Sentence vacated and remanded with directions. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION A jury found Kenneth Dewayne Simmons guilty of carrying a concealed dirk or dagger (Pen. Code, § 21310)1 (count 1), resisting an officer (§ 148, subd. (a)(1)) (count 2), possessing heroin (Health & Saf., § 11350, subd. (a)) (count 3), and possessing methamphetamine (Health & Saf., § 11377, subd. (a)) (count 4). After the jury returned its verdicts, Simmons admitted three prison prior enhancement allegations (§§ 667.5, subd. (b), 668). The trial court sentenced Simmons pursuant to section 1170, subdivision (h) to a split sentence of six years, including four years in jail and two years of mandatory supervision. The court’s sentence consisted of the upper term of three years for carrying a concealed dirk or dagger (§ 21310) (count 1) and three consecutive one-year terms for the three prison prior enhancements (§§ 667.5, subd. (b), 668). The court imposed concurrent terms on the remaining misdemeanor counts (counts 2, 3, and 4). As a condition of mandatory supervision, the trial court imposed an electronics search condition requiring Simmons to submit his “computers[ ] and recordable media to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer.” II. FACTUAL BACKGROUND One night in May 2019, at around 11:00 p.m., police officers responded to a robbery call in downtown San Diego. One of the officers spoke to the victim, M.S. While speaking to the officer, M.S. pointed to Simmons and