Opinion
D080652
02-28-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN EUGENE KELLY, Defendant and Appellant.
John Eugene Kelly, in pro. per; and Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. SCD124427, Michael S. Groch, Judge.
John Eugene Kelly, in pro. per; and Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
In this appeal, John Eugene Kelly contends he is entitled to an additional one or two day of custody credits in the sentence imposed in March 1997.
In 1997, a jury convicted Kelly of robbery (Pen. Code, § 211) and the court found true a serious felony prior conviction (§ 667, subd. (a)(1)) and two strike priors (§ 667, subds. (b)-(i)). The court sentenced Kelly to an indeterminate term of 30 years to life.
All further statutory references are to the Penal Code.
In 2022, Kelly filed a motion to correct the record by granting an extra day of custody credits. The court found Kelly was asking for duplicate credits, to which he was not entitled and therefore denied Kelly's motion without a hearing.
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 has 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. Kelly has responded with a supplemental brief. We will discuss his submission later in this opinion.
DISCUSSION
Counsel's Wende brief indicates counsel has reviewed the record and has not presented any arguable issues for reversal on appeal. Counsel has identified one possible issue for our consideration consistent with Anders v. California (1967) 386 U.S. 738 (Anders) and counsel's duty to apprise the court of the issues that have been considered: Whether the trial court erred in denying Kelly's motion to correct his custody credits.
In his brief, Kelly repeats his argument from the trial court submission. He contends that on the day of his transfer from county jail to state prison he spent five hours in local custody before he was moved to prison. Thus, he argues he should get one more day of credit, in addition to the credit he received for the same day in his prison custody credits. Based on the record before us, Kelly's contention does not raise any arguable issues for reversal on appeal.
We have reviewed the entire record for error, consistent with the Wende procedure and the principles of Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Kelly on this appeal.
DISPOSITION
The order denying Kelly's motion to correct custody credits is affirmed.
WE CONCUR: IRION, J., DO, J.