Opinion
C082296
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT FRANCIS KISHELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF16-49)
Appointed counsel for defendant Robert Francis Kishell asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In 2007, defendant lived with a minor and the minor's mother. For approximately nine years, from 2007 through January 2016, defendant touched the minor's penis, masturbated the minor, and orally copulated the minor. Defendant made the minor orally copulate him. Defendant also showed the minor pornography. This conduct began when the minor was seven years old and continued after he turned 14 years old.
A complaint charged defendant with oral copulation with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)—counts 1 and 2), continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a)—count 3), and lewd acts on a child 14 or 15 years old (§ 288, subd. (c)(1)—counts 4 and 5). Defendant pleaded no contest to continuous sexual abuse of a child under 15 years old (count 3) with a Harvey waiver, and the remaining counts were dismissed. The trial court released defendant pending sentence, pursuant to a Cruz waiver. The parties agreed if defendant complied with the terms of the Cruz waiver, the sentence would be capped at the midterm. Defendant complied with the terms of the Cruz waiver.
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
People v. Cruz (1988) 44 Cal.3d 1247. --------
The trial court sentenced defendant to the midterm of 12 years in state prison. The trial court awarded defendant 54 days of presentence custody credit. The trial court also ordered defendant to pay a restitution fine of $3,600 (§ 1202.4, subd. (b)), with an additional $3,600 fine suspended pending successful completion of parole (§ 1202.45), $630 to the Victims of Crime Fund, plus 10 percent interest, plus a 10 percent collection fee, a conviction assessment fee of $30 (Gov. Code, § 70373), and a court operations assessment of $40 (Pen. Code, § 1454.8, subd. (a)(1)). The trial court also ordered defendant to submit to AIDS testing. (§ 1202.1.) Defendant did not obtain a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that we review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: DUARTE, J. RENNER, J.