People v. Kern CA3

Opinion

Filed 9/22/26 P. v. Kern CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

THE PEOPLE, C103849 Plaintiff and Respondent, (Super. Ct. No. 20F2508) v. JOSEPH JASON KERN, Defendant and Appellant.

Appointed counsel for defendant Joseph Jason Kern asked this court to independently review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having done so, we shall modify the judgment to dismiss defendant’s misdemeanor conviction as contemplated by the parties’ plea agreement and affirm the judgment as modified.

BACKGROUND In November 2019, multiple parents reported a man with a large knife riding back and forth on a bike in front of their children’s school. Police located defendant across the street from the school with a large knife in a sheath suspended from his belt and another attached to the bicycle frame. Defendant had three other knives concealed in various pants pockets.

1 In August 2020, defendant pled no contest to one felony count of carrying a dirk or dagger (Pen. Code, § 21310; count 1)1 and one added misdemeanor count for the same offense (§ 21310; count 2) in exchange for a two-year suspended sentence and felony probation on various terms and conditions, as well as dismissal of several pending cases. Under the plea agreement, if defendant completed probation, his plea to count 1 would be withdrawn nunc pro tunc, and the count dismissed. If defendant did not complete probation, the count 1 conviction would remain, and count 2 would be withdrawn and dismissed. Defendant also agreed to have no contact with R.L.,2 the victim in one of the dismissed cases. In January 2021, defendant moved to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. After hearing from both defendant and his counsel during an in camera hearing, the trial court found counsel had not provided ineffective assistance and denied the motion. After denying the Marsden motion, the trial court suspended the imposition of the sentence and placed defendant on formal probation for two years subject to various terms and conditions, including 60 days in county jail. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a $300 probation revocation restitution fine (§ 1202.44), and imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code, § 70373). The court also imposed, but stayed pending successful completion of probation, a total fine of $780 pursuant to 1 Undesignated statutory references are to the Penal Code. 2 To protect her privacy, we will refer to the victim by her initials. (Cal. Rules of Court, rule 8.90(b)(4).)

2 section 672.3The court found defendant had no ability to reimburse the county for the cost of probation services or for the cost of his appointed counsel. In August 2022, the probation department filed a petition to revoke defendant’s probation based on his failure to report since May 2022. The trial court summarily revoked probation and issued a bench warrant for defendant’s arrest. Defendant sought to represent himself, and, after admonishing defendant pursuant to Faretta v. California (1975) 422 U.S. 806, the court granted the request. In September 2022, defendant admitted the probation violation. The probation department prepared a supplemental probation report recommending probation be revoked, reinstated, and extended. In November 2022, defendant retained counsel. The following month, in December 2022, the probation department filed a second petition to revoke probation, alleging several new violations. The trial court summarily revoked probation. Defendant admitted he violated probation, and the probation officer recommended the court terminate probation and sentence defendant to an aggravated term. At a contested hearing in September 2023, the trial court formally revoked and declined to reinstate probation. The court sentenced defendant to a split midterm of two years in county jail, with the initial six months in custody and the last 18 months on mandatory supervision with various terms and conditions (§ 1170, subd. (h)(5)(A)-(B)). The previously imposed fines, fees, and assessments remained unchanged.

3 This fine included a $200 base fine (§ 672 [where no fine is statutorily prescribed for a criminal conviction punishable by jail or prison, the court may impose a fine on the offender not exceeding $1,000 for misdemeanors or $10,000 for felonies]); a $200 penalty assessment (§ 1464, subd. (a)); a $20 DNA penalty assessment (Gov. Code, § 76104.6); an $80 DNA penalty assessment (Gov. Code, § 76104.7); a $100 state court facilities construction fee (Gov. Code, § 70372, subd. (a)(1)); a $140 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)); and a $40 state criminal fine surcharge (§ 1465.7, subd. (a)).

3 In March 2025, the probation department filed a petition to revoke mandatory supervision, alleging that in February 2025 defendant completed the custody portion of his sentence but then failed to report to the probation department as required. In April 2025, defendant was arraigned on the petition to revoke mandatory supervision, and the trial court appointed him counsel at his request. Defendant then admitted the violation, and the court referred the matter for a supplemental probation report, which recommended that mandatory supervision be revoked and not reinstated. On May 21, 2025, the trial court revoked and declined to reinstate mandatory supervision. The court sentenced defendant to the midterm of two years in county jail on count 1 (§ 1170, subd. (h)) and awarded him 274 days of credit (150 actual days plus 124 days of conduct credit), which left 456 days remaining to be served. The court lifted the stay on the previously imposed probation revocation restitution fine (§ 1202.44, subd. (b)), probation having been revoked. Defendant timely appealed.

DISCUSSION Defendant’s appointed counsel asked this court to independently review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days from the date the opening brief was filed. We have not received any communication from defendant. Having undertaken an examination of the record, we have discovered an error at sentencing. The terms of the parties’ plea agreement required the trial court to dismiss the misdemeanor count for carrying a dirk or dagger (count 2) because defendant failed to successfully complete probation, leaving the felony count remaining. While the trial court sentenced defendant to two years on the felony count, it did not address the misdemeanor count. In accordance with the parties’ plea agreement, we shall dismiss 4 defendant’s misdemeanor conviction for carrying a dirk or dagger. (People v. Segura (2008) 44 Cal.4th 921, 930-931 [a plea agreement is a contract that is binding upon the parties and the court].)

DISPOSITION The judgment is modified to dismiss defendant’s misdemeanor conviction for carrying a direct or dagger (§ 21310; count 2). As so modified, the judgment is affirmed.

\s\ KRAUSE, J.

We concur:

\s\ MAURO, Acting P. J.

\s\ BOULWARE EURIE, J.