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Filed 8/12/22 P. v. Kelley CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY DEAN KELLEY,

Defendant and Appellant.

C095672

(Super. Ct. No. CRF2101367)

Appointed counsel for defendant, Gregory Dean Kelley, has asked this court to 

review the record and 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 trial court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS

The People’s complaint charged defendant with driving or taking a vehicle 

without the consent of the owner (Veh. Code, § 10851, subd. (a)) with an allegation he

had suffered a prior strike (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subd. (b).)

(Statutory section citations that follow are found in the Penal Code.) The parties resolved 

the case with defendant pleading guilty and admitting the prior strike. In exchange, 
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defendant would receive a stipulated sentence to the lower term of 16 months doubled to 

32 months because of the prior strike. The stipulated factual basis for the plea was that 

defendant took his friend’s Ford Expedition with a value over $1,000 without permission. 

The Expedition was reported stolen, but was not recovered until after it was involved in 

an accident approximately a week later. 

On October 18, 2021, the trial court sentenced defendant in accordance with the 

plea agreement and awarded defendant 83 actual days plus 82 conduct daysfor a total of 

165 days custody credits. The court also imposed a $300 restitution fine (§ 1202.4), a 

$300 suspended parole revocation restitution fine (§ 1202.45), a $40 court operations 

assessment fee (§ 1465.8), a $30 conviction assessment fee (Gov. Code, § 70373), and a 

$4 emergency medical air transportation fee (Gov. Code, § 76000.10(c)(1)). Finally, the 

court reserved jurisdiction to award victim restitution and set the matter for a contested 

restitution hearing. (§ 1202.4, subd. (f).) The court denied defendant’s ex parte request 

to modify the sentence to waive these fines and fees on January 20, 2022. 

At the contested restitution hearing on January 27, 2022, defendant failed to offer 

any evidence contradicting the victim’s $3,500 request for the loss of the Ford 

Expedition. Finding the victim’s opinion valuing the Expedition legally sufficient, the 

court awarded the $3,500 and reserved jurisdiction to award the additional $500

requested upon an explanation of the losses from inside the Expedition justifying the 

award. The same day, defendant filed a notice appealing the January 27, 2022 restitution 

order. The record does not reflect a separate notice of appeal from the underlying 

October 18, 2021 judgment.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief that sets forth the facts and procedural history of the case and requests this court to 

review the record and determine whether there are any arguable issues on appeal. 
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(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right 

to file a supplemental brief within 30 days from the date the opening brief was filed. 

More than 30 days have elapsed, and defendant has not filed a supplemental brief.

We have located no published authority that speaks to the applicability of Wende

procedures to an appeal from a trial court’s original order setting victim restitution where 

the court reserved jurisdiction at the original sentencing hearing (§§ 1202.4, subd. (f), 

1202.46) and defendant has not appealed the underlying judgment of conviction. 

However, because defendant’s contested restitution hearing was part of his original 

criminal prosecution and a continuation of sentencing (People v. Dehle (2008) 

166 Cal.App.4th 1380, 1386), we have reviewed the record in accordance with Wende. 

Having done so, we find no arguable issue that could result in a disposition more 

favorable to defendant. Accordingly, we will affirm the trial court’s restitution order.

DISPOSITION

The trial court’s order is affirmed. 

 

HULL, Acting P. J.

We concur:

 

RENNER, J.

 

EARL, J.