People v. Kelly CA4/1

California Court of Appeal · D077357 · 2020-10-16 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD283756
Trial judge: Jeffrey B. Barton
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), O'Rourke, William S. Dato

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:21Z · confidence high

The trial court found the defendant guilty of pimping and selling heroin, sentencing him to six years in prison. The appellate court affirmed the judgment after an independent review of the record pursuant to People v. Wende, finding no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Affirmance of the judgment of conviction and sentence “We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal, including on the grounds raised by appellate counsel in her Wende brief.”	de novo	correct	agree with court The court applied the standard Wende review, which requires an independent examination of the record to determine if there are any arguable issues. The court found none, which is the correct procedural outcome when no valid legal errors are identified in the record.
Rejection of the argument regarding the limiting instruction on prior reports “Appellate counsel directs our attention to the limiting instruction given by the court with respect to stating aloud that they had reports about defendant engaging in pimping and narcotics activity”	abuse of discretion	correct	agree with court The court reviewed the specific issue raised by counsel regarding the limiting instruction. By stating it found no arguable issues, the court implicitly determined that the trial court's instruction was proper or that any error was harmless. This is consistent with standard appellate review of evidentiary rulings.
Rejection of the argument that the conduct did not meet the definition of pimping “whether defendant’s conduct met the definition of pimping even though no lewd conduct occurred”	de novo	correct	agree with court The court reviewed the sufficiency of the evidence and the legal definition of the crime. The defendant's actions of procuring a prostitute and taking payment satisfy the elements of pimping under Penal Code section 266h, regardless of whether the lewd act was completed or observed. The court correctly found no error.
Rejection of the argument for a section 1170.91 hearing “whether defendant was a candidate for a hearing under section 1170.91, which would have made defendant’s military service a mitigating factor if it led to his addiction or other mental health issues”	abuse of discretion	correct	agree with court The court reviewed the trial court's decision not to grant a hearing under section 1170.91. The defendant failed to provide sufficient evidence linking his military service to his addiction or mental health issues to warrant a hearing. The court correctly found no arguable issue.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the requirement for appellate counsel to file a brief identifying arguable issues and for the court to independently review the record in cases where counsel finds no issues.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the federal constitutional requirement for appointed counsel to file a brief identifying arguable issues and for the court to independently review the record.

The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a case where appellate counsel finds no arguable issues. The court explicitly states it reviewed the entire record and found no errors, which is the required standard of review in this context.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

A San Diego jury convicted Dan Kelly of pimping (Pen. Code, § 266h, subd. (a)) and selling heroin (Health & Saf. Code, § 11352, subd. (a)), and the trial court imposed the upper term of six years on the pimping count with a concurrent lower term on the drug count, finding he could not pay fines and fees beyond the mandatory assessments. On appeal, appointed counsel filed a Wende/Anders brief, defendant filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Judgment of conviction on both counts following jury trial (reviewed under Wende/Anders independent review) “We have not discovered any arguable issues for reversal on appeal, including on the grounds raised by appellate counsel in her Wende brief.”	unclear	correct	agree with court The court applied the Wende/Anders procedure: counsel filed a no-issue brief, defendant was offered and declined the chance to file a supplemental brief, and the court states it reviewed the entire record. The stipulated heroin sale and the recorded procurement of a prostitute for $220, of which defendant kept $140, supply substantial evidence for both counts on the facts recited. Nothing in the opinion suggests a procedural defect in the Wende process.
Limiting instruction regarding detectives' testimony that police had received reports of defendant engaging in pimping and narcotics activity “the limiting instruction given by the court with respect to stating aloud that they had reports about defendant engaging in pimping and narcotics activity”	unclear	correct	unsure The opinion identifies this as an issue flagged by counsel but does not describe the instruction, the testimony, or any objection, and simply concludes it is not arguable. Without the text of the instruction or the testimony it is impossible to assess from the opinion alone whether the limiting instruction adequately cured any hearsay or propensity concern, although a limiting instruction is the ordinary remedy and juries are presumed to follow it.
Sufficiency of the evidence that defendant's conduct constituted pimping where no lewd act occurred “whether defendant’s conduct met the definition of pimping even though no lewd conduct occurred”	unclear	correct	agree with court Penal Code section 266h, subdivision (a) is violated by one who, knowing another person is a prostitute, solicits or receives compensation for soliciting for that person; completion of a sex act is not an element. The facts recited show defendant agreed to supply a prostitute, brought her to the room, collected $220 from the undercover detectives, paid her $80, and kept the balance. That is receiving compensation for soliciting for a prostitute, so the court's conclusion that the issue is not arguable is supported by the record described.
Sentencing: imposition of the upper term on count 1 and whether defendant was entitled to consideration of military service under Penal Code section 1170.91 “whether defendant was a candidate for a hearing under section 1170.91, which would have made defendant’s military service a mitigating factor if it led to his addiction or other mental health issues.”	unclear	correct	unsure The record as recited establishes defendant was a veteran (the court found he lost his veterans benefits) and he received the upper term. Section 1170.91, subdivision (a) requires the sentencing court to consider service-related trauma, substance abuse, or mental health problems as a mitigating factor. The opinion does not say whether the trial court did so or whether defendant presented any evidence linking his service to such conditions, so the opinion's bare conclusion cannot be independently verified from its text.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, but must file a brief referring to anything in the record that might arguably support the appeal, and the court must then conduct its own examination of the record.

The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, recited the facts and procedural history, noted the issues counsel flagged, and confirmed defendant declined to file a supplemental brief, which is all that is required for a no-issue affirmance. It did not, however, explain even briefly why the three flagged issues—particularly the section 1170.91 sentencing question for a veteran who received the upper term—lack arguable merit, leaving the reader unable to verify those conclusions from the opinion itself.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/16/20 P. v. Kelly 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, D077357

Plaintiff and Respondent, v. (Super. Ct. No. SCD283756)

DAN KELLY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. OVERVIEW On November 4, 2019, the District Attorney for San Diego County filed an information charging defendant Dan Kelly with one count of pimping in violation of Penal Code section 266h, subdivision (a) (count 1); and one count of selling a controlled substance, heroin, in violation of Health and Safety Code section 11352, subdivision (a) (count 2). A jury found defendant guilty of both offenses. On February 28, 2020, defendant was sentenced to the upper term of six years on count 1 and a concurrent three-year term (the lower term) on count 2. The court further found that defendant had lost his veterans benefits and had no ability to pay all fines, fees, and assessments except for the $80 court assessment under Penal Code section 1465.8, and the $60 conviction assessment under Government Code section 70373. The court reserved its jurisdiction to assess victim restitution under Penal Code section 1202.4, subdivision (f). Defendant was awarded 268 total custody days. Affirmed. BACKGROUND Defendant has provided a detailed statement of facts. We summarize briefly: In the months leading up to October 2019, the San Diego Police Department (SDPD) received multiple complaints that narcotics activity and pimping was taking place at a disabled veteran living facility on Alvarado Road in San Diego. In early October, Vice Detective Zoller moved into the facility, pretending to be a resident. He was joined there at times by Vice Detective McNett, who pretended to be a friend and visitor of Zoller. The detectives made contact with defendant, who sold heroin to Zoller. The parties at trial stipulated the “black tar-like substance” defendant handed Detective Zoller “was heroin and had a net weight that is without packaging of .26 grams.” Detective Zoller then asked if defendant could supply him and Detective McNett with a prostitute who would be willing to have sex with both men. About 15 minutes later, per their agreement, Detective Zoller called defendant, and their conversation was recorded. Shortly thereafter, 2 defendant brought a prostitute to Detective Zoller’s room. Defendant took $100 each from Detectives Zoller and McNett, who also gave defendant a $20 “tip” as requested by defendant. Defendant then paid the prostitute $80, and left the room. A short while later, the detectives gave the “bust signal” and the prostitute was arrested, as was defendant a few minutes later. Defendant filed a timely notice of appeal. DISCUSSION Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), stating she has examined the record and finds no arguable issues which would modify or reverse the case. She requests this court independently review the record to determine if we see any issue which would modify or reverse the case. To assist the court, appellate counsel directs our attention to the limiting instruction given by the court with respect to stating aloud that they had reports about defendant engaging in pimping and narcotics activity; whether defendant’s conduct met the definition of pimping even though no lewd conduct occurred; and whether defendant was a candidate for a hearing under section 1170.91, which would have made defendant’s military service a mitigating factor if it led to his addiction or other mental health issues. Defendant has been offered an opportunity to file a supplemental brief on his own behalf. He has not done so. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal, including on the grounds raised by appellate counsel in her Wende brief. Competent counsel has represented defendant on this appeal.

3 DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

DATO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12