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People v. Kueny

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D058927 (Cal. Ct. App. Jan. 13, 2012)

Opinion

D058927 Super. Ct. No. SCD218738

01-13-2012

THE PEOPLE, Plaintiff and Respondent, v. TIFFANY BARBETTE KUENY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Tiffany Barbette Kueny pleaded guilty to one count each of corporal injury to a cohabitant (count 2) and violating a court order (count 4). (The reporter's transcript and the change of plea form incorrectly state that the guilty plea was to counts 2 and 3. Review of the statutes violated, as recited by the court and as written in the change of plea form, shows that the guilty plea was to count 2 (Pen. Code, § 273.5, subd. (a)) and count 4 (Pen. Code, § 273.6, subd. (a)). At the time of the plea, the trial court stated it would reduce count 2 to a misdemeanor if Kueny violated no laws and complied with a restraining order between the date of the plea and the date of sentencing. At the sentencing hearing, the trial court found that Kueny had not complied with the conditions for reduction of count 2 to a misdemeanor, but again indicted it would consider this reduction if Kueny complied with the terms and conditions of probation for a year. The court then suspended the imposition of sentence for three years and placed Kueny on probation.

About eight months later, an order to show cause why probation should not be revoked was filed alleging that Kueny had violated several conditions of probation, including failing to: (1) remain law abiding; (2) abstain from alcohol; (3) not use force, threats or violence on another; (4) enroll in a domestic violence program; and (5) make payment of fines and restitution. Kueny admitted to violating probation by drinking alcohol and not completing the domestic violence program. The trial court imposed the middle term of three years on count 2 and a concurrent three-year term on count 4, both of which it ordered stayed. The court then reimposed probation with credit for time served.

In a supplemental report, the probation department recommended that probation be revoked because Kueny violated the terms of her probation by engaging in a physical altercation with her former boyfriend, failing to report to probation as directed and failing to enroll in a domestic violence treatment program. Kueny moved to enforce her agreement with the court or, alternatively, to withdraw her plea. The trial court granted the defense motion for specific performance of the plea agreement and agreed to adjudicate the offenses as misdemeanors nunc pro tunc to the date of the sentencing hearing when probation was originally granted. It held an evidentiary hearing on the alleged violations of probation. The trial court found that Kueny had violated probation by failing to report to probation, failing to enroll in a domestic violence recovery program, and engaging in a violent act. It ordered probation formally revoked and sentenced Kueny to consecutive one-year terms on each count for a total of 730 days of custody. Finally, Kueny received 513 days custody credit consisting of 257 days actual time and 256 days conduct credit under Penal Code section 4019.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738 (Anders), he listed as possible but not arguable issues, whether the trial court: (1) abused its discretion in refusing to reinstate probation and instead sentencing Kueny to two years in custody; and (2) deprived Kueny her due process right to confront the evidence against her by admitting hearsay testimony concerning her failure to enroll in the domestic violence recovery program. We granted Kueny permission to file a brief on her own behalf. She has not responded.

Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal. Competent counsel has represented Kueny on this appeal.

DISPOSITION

The judgment is affirmed.

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MCINTYRE, J.
WE CONCUR:

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HUFFMAN, Acting P. J.

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AARON, J.


Summaries of

People v. Kueny

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D058927 (Cal. Ct. App. Jan. 13, 2012)
Case details for

People v. Kueny

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIFFANY BARBETTE KUENY, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 13, 2012

Citations

D058927 (Cal. Ct. App. Jan. 13, 2012)