People v. Hooper CA1/4

Filed 6/13/24 P. v. Hooper CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A168470 v. (Humboldt County Super. Ct. KENNETH COLIN HOOPER, Nos. CR2103112A, CR2301470) Defendant and Appellant.

Defendant Kenneth Colin Hooper’s appointed appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. He informed Hooper of his right to file a supplemental brief, which Hooper has not filed. After conducting an independent review of the record, we found no appellate issues requiring further briefing, except that we directed the parties to file supplemental briefs as to whether the trial court improperly sentenced Hooper to a concurrent term of three years for count 1 in case number CR2301470 rather than a concurrent term of two years as the parties had agreed to in a negotiated disposition of the case, and which the trial court had accepted. Hooper filed a supplemental brief arguing that the concurrent three-year sentence was improper, whereupon we issued an order stating our tentative view that the sentence should be vacated and the case remanded to

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the trial court for imposition of the concurrent two-year sentence and modification of the abstract of judgment. In their respondent’s brief, the People concur that the sentence should be vacated and the matter remanded for resentencing consistent with the terms of the parties’ plea agreement. We adopt our tentative view and otherwise affirm the judgment. I. BACKGROUND A. Case Number CR2103112A In October 2021, the Humboldt County District Attorney filed a complaint against Hooper charging him with felony possession of a firearm, a nine-millimeter pistol, by a felon, Hooper having been previously convicted of a felony in April 2011. The district attorney also charged him and Marissa Faye Hooper with misdemeanor unlawful manufacture or assembly of a firearm, a nine-millimeter pistol (Pen. Code, § 29180, subd. (a)1; count 2); felony possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378; count 3); and felony child abuse (§ 273a, subd. (a); count 4). The district attorney specially alleged that Hooper was previously convicted of four felonies within the meaning of section 1203, subd. (e)(4), which prohibits the grant of probation except in unusual cases in which the interests of justice would be best served. In February 2023, the parties agreed to a negotiated disposition of the case. Hooper would plead guilty to possession of a firearm as a felon (count 1) and possession of methamphetamine for sale (count 3). Counts 2 and 4 would be dismissed with Hooper waiving his rights under People v. Harvey (1979) 25 Cal.3d 754, 758–759, thereby allowing consideration of these charges at sentencing. It was also agreed that Hooper would receive probation and