Opinion
A157504
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. KEHINDE JEDEDIAH JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC200085A)
Defendant Kehinde Jedediah Jackson appeals from the trial court's resentencing order, which modified his sentence in this case due to a subsequent conviction. Jackson's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues and requesting that this court review the record and determine whether any arguable issue exists on appeal. Having done so, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2018, Jackson pleaded guilty to one count of resisting an executive officer in the performance of his duties. (Pen. Code, § 69.) Pursuant to a negotiated disposition, the court suspended imposition of sentence, placed Jackson on probation for three years, and ordered him to serve a 364-day county jail term, which was time served. As one of his terms of probation, Jackson was ordered to conduct himself "in a law-abiding manner."
Statutory references are to the Penal Code unless otherwise specified.
A petition to revoke Jackson's probation was filed in May 2018, noting that Jackson had failed to report to probation or respond to telephone messages. Jackson admitted the allegations on May 30, 2018, and probation was reinstated on the same terms and conditions with a 30-day jail sanction. A second petition was filed soon thereafter, alleging that on June 17, 2018, Jackson had disobeyed the probation condition that he lead a law-abiding life by using force and violence against Laura A., in violation of sections 242 (battery) and 236 (false imprisonment).
While the second probation violation was pending, Jackson's Marsden motion was denied in July 2018. Thereafter, the proceedings were suspended pursuant to section 1368 when defense counsel expressed doubt as to Jackson's competency. After receipt of evaluations from a psychologist and a psychiatrist, the court found Jackson competent in October 2018.
People v. Marsden (1970) 2 Cal. 3d 118.
A contested probation revocation hearing was held on December 3, 2018. Laura A. testified that she and her husband were loading their car outside of a garden center in San Rafael on June 17, 2018, when she noticed a man—later identified as Jackson—and a woman standing across the street. Laura A. noticed movement out of the corner of her eye and looked up to see Jackson running towards her. Jackson drew back his right fist and, after Laura A. turned her head away, struck her in the right temple area. Jackson next punched Laura A. two or three times in the torso, while her husband tried to separate them. Jackson then grabbed Laura A. by the hair and dragged her about 15 feet into the street, with her husband still attempting to intervene. Jackson eventually let go of Laura A. and walked away. According to Laura A., as he was leaving, he turned around and said, "Sorry."
At the conclusion of the hearing, the court found that Jackson had violated the terms of his probation. The next day, the court terminated Jackson's probation and, finding that circumstances warranted the aggravated term, sentenced Jackson to three years in prison to be served in county jail. Jackson did not appeal.
Jackson was subsequently prosecuted and convicted for his assault on Laura A. On April 4, 2019, the trial court in that proceeding sentenced Jackson. Deeming that case to be the principal term, the court sentenced Jackson to seven years in state prison. The court then resentenced Jackson in these proceedings to the aggravated term of three years, with eight months imposed—calculated as one-third the midterm for the offense—and 28 months stayed. (See § 1170.1, subd. (a).) The parties stipulated that Jackson had a total of 1,042 days of credit with respect to both matters.
Jackson's appeal challenging this conviction is currently pending before this court (People v. Jackson, A157033).
Jackson mailed a notice of appeal from prison on June 1, 2019, which was timely filed by the superior court clerk on June 7, 2019. (See Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 118 [discussing prison-delivery rule].)
DISCUSSION
As stated above, Jackson appealed from the trial court's April 2019 order resentencing him with respect to his June 2018 probation violation. We appointed counsel to represent him. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (Wende, supra, 25 Cal.3d at p. 441; see People v. Kelley (2006) 40 Cal.4th 106, 109-110.) Jackson was advised by his attorney of the opportunity to file a supplemental brief with this court, but he has not done so.
We have examined the entire record and are satisfied that Jackson's attorney has complied with his responsibilities and that no arguable issue exists. We see no error in the trial court's April 2019 resentencing. The trial court concluded that the aggravated term of three years was appropriate under the circumstances (as had the prior sentencing court) and then stayed the bulk of the sentence as required by statute. (See § 1170.1, subd. (a) [subordinate consecutive term imposed at "one-third of the middle term of imprisonment prescribed" for that felony].)
Jackson's failure to appeal from the original probation revocation matter would normally bar our consideration of the propriety of those proceedings. (Cal. Rules Court, rule 8.308(a) [criminal defendant must file an appeal within 60 days of rendition of judgment]; see People v. Senior (1995) 33 Cal.App.4th 531, 538 ["where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay"].) However, there is some indication in the record that Jackson may have unsuccessfully attempted to file a notice of appeal challenging the revocation and initial sentencing, and as stated above, we have already reviewed the entire record. We therefore exercise our discretion to consider the propriety of the underlying revocation proceeding.
We find no arguable issues. Substantial evidence supports both the trial court's October 2018 finding that Jackson was competent (People v. Lawley (2002) 27 Cal.4th 102, 131) and the trial court's December 2018 finding that Jackson violated the terms of his probation (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849). Nor was it an abuse of discretion to deny Jackson's July 2018 Marsden motion or revoke his probation. (People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Rodriquez (1990) 51 Cal.3d 437, 443.)
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J.
WE CONCUR:
/s/_________
Margulies, Acting P.J.
/s/_________
Banke, J.