Opinion
H045927
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID PORTER KILGORE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1762347, C1762862, C1765476)
I. PROCEDURAL BACKGROUND
On April 20, 2017, in case number C1762862 appellant David Porter Kilgore was charged with two misdemeanors, calling 911 with intent to harass, and resisting an officer. (Pen. Code, §§ 653x, 148, subd. (a)(1).) On April 26, 2017 he was again charged with calling 911 in case number C1762347. (Pen. Code, § 653x.) On June 8, 2017, he was charged a third time in case number C1765476 for calling 911, using a phone to annoy, throwing a rock at a vehicle, and resisting an officer. (Pen. Code, §§ 653x, 653m, subd. (b), 23110, subd. (a), and 148, subd. (a)(1).) On August 2, 2017, the trial court declared a doubt as to Kilgore's competence in all three cases. (Pen. Code, § 1368.) On May 21, 2018, the date set for a competency trial, Kilgore moved pursuant to People v. Marsden (1970) 2 Cal.3d 118 to relieve his appointed counsel. After the court denied the motion, it found Kilgore not competent. On May 29, 2018 Kilgore filed a timely notice of appeal. On June 7, 2018, the court exonerated Kilgore's bail, released him on his own recognizance, and directed him to see a psychiatrist. On May 3, 2019, the district attorney dismissed the criminal cases under Penal Code section 1370.2.
On appeal, we appointed counsel to represent Kilgore in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543-544 (Ben C.); People v. Taylor (2008) 160 Cal.App.4th 304.) Pursuant to Ben C., on August 15, 2019, we notified Kilgore of his right to submit written argument on his own behalf within 30 days. On September 13, 2019 we received a supplemental brief from Kilgore.
II. DISCUSSION
In his supplemental brief Kilgore contends that his Marsden motion was wrongfully denied. He contends that his trial counsel provided ineffective assistance of counsel because she lied to the court in declaring a doubt as to his competence. He states that she had never met with him before making the declaration. Kilgore has not supported his claims with any reference to the record, nor does the record support such a claim. By his own admission Kilgore had met with counsel two times during the pendency of the action below. The court found that counsel was an expert in competency matters, and that there was no breakdown in the attorney-client relationship.
Even if Kilgore could argue that counsel was deficient in declaring a doubt as to his competence, his ineffective assistance of counsel claim fails. To show ineffective assistance of counsel, an appellant must show not only that counsel's performance was deficient, falling below an objective standard of reasonableness, but also that appellant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Kilgore is unable to show any prejudice because the trial court received and relied on psychiatric reports to declare Kilgore incompetent. Therefore, counsel's declaration and the ultimate finding were well supported.
Kilgore having failed to raise any issue on appeal, we must dismiss the appeal. (Ben C., supra, 40 Cal.4th 529.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.