Filed 10/16/20 P. v. Kelly CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAN KELLY,

Defendant and Appellant.

 D077357

 (Super. Ct. No. SCD283756)

APPEAL from a judgment of the Superior Court of San Diego County, 

Jeffrey B. Barton, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance by Plaintiff and Respondent.

OVERVIEW

On November 4, 2019, the District Attorney for San Diego County filed 

an information charging defendant Dan Kelly with one count of pimping in 

violation of Penal Code section 266h, subdivision (a) (count 1); and one count 

of selling a controlled substance, heroin, in violation of Health and Safety 
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Code section 11352, subdivision (a) (count 2). A jury found defendant guilty 

of both offenses. 

On February 28, 2020, defendant was sentenced to the upper term of 

six years on count 1 and a concurrent three-year term (the lower term) on 

count 2. The court further found that defendant had lost his veterans 

benefits and had no ability to pay all fines, fees, and assessments except for 

the $80 court assessment under Penal Code section 1465.8, and the $60 

conviction assessment under Government Code section 70373. The court 

reserved its jurisdiction to assess victim restitution under Penal Code section 

1202.4, subdivision (f). Defendant was awarded 268 total custody days. 

Affirmed.

BACKGROUND

Defendant has provided a detailed statement of facts. We summarize 

briefly: In the months leading up to October 2019, the San Diego Police 

Department (SDPD) received multiple complaints that narcotics activity and 

pimping was taking place at a disabled veteran living facility on Alvarado 

Road in San Diego. In early October, Vice Detective Zoller moved into the 

facility, pretending to be a resident. He was joined there at times by Vice 

Detective McNett, who pretended to be a friend and visitor of Zoller. The 

detectives made contact with defendant, who sold heroin to Zoller. The 

parties at trial stipulated the “black tar-like substance” defendant handed 

Detective Zoller “was heroin and had a net weight that is without packaging 

of .26 grams.” 

Detective Zoller then asked if defendant could supply him and 

Detective McNett with a prostitute who would be willing to have sex with 

both men. About 15 minutes later, per their agreement, Detective Zoller 

called defendant, and their conversation was recorded. Shortly thereafter, 
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defendant brought a prostitute to Detective Zoller’s room. Defendant took 

$100 each from Detectives Zoller and McNett, who also gave defendant a $20

“tip” as requested by defendant. Defendant then paid the prostitute $80, and 

left the room. A short while later, the detectives gave the “bust signal” and 

the prostitute was arrested, as was defendant a few minutes later.

Defendant filed a timely notice of appeal. 

DISCUSSION

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 

25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), 

stating she has examined the record and finds no arguable issues which 

would modify or reverse the case. She requests this court independently 

review the record to determine if we see any issue which would modify or 

reverse the case. 

To assist the court, appellate counsel directs our attention to the 

limiting instruction given by the court with respect to stating aloud that they 

had reports about defendant engaging in pimping and narcotics activity;

whether defendant’s conduct met the definition of pimping even though no 

lewd conduct occurred; and whether defendant was a candidate for a hearing 

under section 1170.91, which would have made defendant’s military service a 

mitigating factor if it led to his addiction or other mental health issues. 

Defendant has been offered an opportunity to file a supplemental brief 

on his own behalf. He has not done so.

We have reviewed the entire record as required by Wende and 

Anders. We have not discovered any arguable issues for reversal on appeal, 

including on the grounds raised by appellate counsel in her Wende brief. 

Competent counsel has represented defendant on this appeal.
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DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

DATO, J.