People v. Kelly CA4/1

California Court of Appeal · D076895 · 2020-10-22 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE384501
Trial judge: Robert O. Amador
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith L. Haller, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:20Z · confidence low

The trial court revoked Kelly's probation for violating a condition regarding misdemeanor conduct and imposed a two-year custody sentence along with mandatory fines and fees. The Court of Appeal 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
Probation revocation and imposition of two-year custody sentence “Kelly’s probation was revoked, and he was sentenced to two years in custody and the minimum mandatory fines and fees were imposed.”	unclear	not reached	unsure The appellate court did not explicitly analyze the merits of the probation revocation or the sentence length; it affirmed based on a Wende review finding no arguable issues.
Imposition of mandatory fines and fees without an ability to pay hearing “Whether Kelly’s due process rights were violated by the mandatory imposition of fines without an ability to pay hearing.”	unclear	not reached	unsure The court identified this as a potential issue raised by counsel but concluded after review that it was not an arguable issue for reversal, without providing specific legal analysis in the opinion text.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are identified.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and request the court to review the record for error.

The appellate opinion: sound with gaps — The opinion is a standard Wende/Anders review where the court states it reviewed the record and found no arguable issues. It does not provide substantive legal analysis for the specific due process claims raised by counsel, relying instead on the procedural mandate of independent review.

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

The trial court revoked Shawn Kelly's probation on his Vehicle Code section 10851 conviction after an evidentiary hearing found he violated Penal Code section 647, subdivision (f), sentenced him to two years in custody, and imposed minimum mandatory fines and fees. On appeal, counsel filed a Wende brief identifying possible due process issues regarding notice of the violation grounds and the fines, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Revocation of probation based on finding that Kelly violated Penal Code section 647, subdivision (f), and imposition of a two-year custodial sentence “We have not discovered any arguable issues for reversal on appeal.”	unclear	correct	agree with court The court conducted a Wende/Anders independent review rather than articulating a standard; the summarized testimony (Kelly intoxicated, passed out in the street, unable to stand or care for himself, kicking a deputy) readily supports a public intoxication finding under the preponderance standard that governs revocation. The notice issue counsel flagged was not discussed, but nothing in the opinion suggests Kelly lacked notice of the 647(f) allegation at the evidentiary hearing.
Imposition of minimum mandatory fines and fees without an ability-to-pay hearing “Whether Kelly’s due process rights were violated by the mandatory imposition of fines without an ability to pay hearing.”	unclear	correct	unsure The court listed this as a potential issue counsel considered but did not explain why it was not arguable. The opinion gives no information about whether Kelly objected below, his financial circumstances, or which fines were imposed, so the correctness of rejecting a Dueñas-type claim cannot be verified from the opinion; appellate courts are divided on Dueñas and forfeiture often applies, so the result is defensible but unexplained.
Finding under Penal Code section 1368 that Kelly was competent and reinstatement of criminal proceedings “Kelly was found to be competent and criminal proceeding were reinstated.”	unclear	correct	agree with court The competency finding was part of the record reviewed under Wende and the court found no arguable issue. The opinion contains no facts about the competency evidence, so there is no basis to identify error, and a competency finding is ordinarily reviewed for substantial evidence with deference to the trier of fact.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
missed: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Due process requires an ability-to-pay hearing before imposing certain fines, fees, and assessments; the opinion identified this issue as a potential ground but did not address Dueñas or explain why the claim was not arguable (persuasive rather than binding authority on another division).

The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, recited the procedural history and facts, listed the issues counsel considered, and confirmed independent review, which is all that is required for a no-issue affirmance. It did not, however, explain why the two identified due process issues (notice of violation grounds and fines without an ability-to-pay hearing) lacked arguable merit, leaving the reasoning on those points undisclosed.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/22/20 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, D076895

Plaintiff and Respondent, v. (Super. Ct. No. SCE384501)

SHAWN PAUL KELLY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Kelly E. DuFord, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In October 2018, Shawn Kelly pleaded guilty to violation of Vehicle Code section 10851, subdivision (a). He was granted probation on various terms and conditions. In June 2019, criminal proceedings were suspended, and a hearing was held to determine Kelly’s competency under Penal Code section 1368.1 Kelly was found to be competent and criminal proceeding were reinstated. In September 2019, an evidentiary hearing was held on allegations of probation violation, specifically, that Kelly violated section 647, subdivision (f), a misdemeanor. Kelly’s probation was revoked, and he was sentenced to two years in custody and the minimum mandatory fines and fees were imposed. Kelly filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel kas not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Kelly the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the evidentiary hearing are accurately summarized in the appellant’s brief. We will adopt that summary for convenience. A. Facts relating to the Underlying Offense Kelly pled guilty to unlawfully and temporarily driving and depriving another of their vehicle without their consent. B. Probation Revocation hearing Deputy Sheriff John Ferris, arrived on the scene of the December 19, 2018 incident. When he arrived, Kelly was “intoxicated and hostile.” Deputy Ferris indicated there was a half empty bottle of vodka near Kelly, along with noticeable slurred speech. Kelly was “unable to stand up on his own, walk on 1 All further statutory references are to the Penal Code unless otherwise specified. 2 his own, [or] make good decisions.” Deputy Ferris also indicated that Kelly was unable to care for himself out in public since he was found passed out in the street. Kelly kicked the other deputy on the scene and tried to flee the vehicle, resulting in Deputy Ferris using force to submiss Kelly. Deputy Sheriff Osmark Gonzalez also testified at the hearing. Deputy Gonzalez indicated he was there for the May 7, 2019 incident. When he arrived, Kelly was on the ground, shirtless, and bleeding from his right hand. Deputy Gonzalez described Kelly as emitting the odor of alcohol and testified Kelly acted out by trying to kick one of the paramedics on scene. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether Kelly was prejudiced by violation of his due process rights due to insufficient notice of the grounds of his probation violation; and 2. Whether Kelly’s due process rights were violated by the mandatory imposition of fines without an ability to pay hearing. We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Kelly on this appeal.

3 DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

Cites, in this corpus

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