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The People v. Kevin Stark

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN STARK, DEFENDANT AND APPELLANT.

(Del Norte County Super. Ct. No. CRPB09-5154)

The opinion of the court was delivered by: Ruvolo, P. J.

P. v. Stark CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Kevin Stark appeals from a four-year state prison sentence he received following his plea of no contest to one count of possession of a weapon in prison. Appellant's counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared he has notified appellant that no issues are being raised by counsel on appeal, and that an independent review under Wende instead is being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has personally been filed by appellant.

A criminal complaint was filed by the Del Norte County District Attorney's Office charging appellant with three counts, including: attempted murder (Pen. Code,*fn1 § 664/187), assault on an inmate with a deadly weapon (§ 4501), and possession of a weapon by a state prison inmate (§ 4502, subd. (a)). Numerous special allegations were also pleaded. Initially, appellant entered a plea of not guilty to the charges, and denied the special allegations.

Appellant is an inmate at Pelican Bay State Prison. A "Crime/Incident Report" prepared by staff of the California Department of Corrections, and dated December 2, 2007, reported that on that same day, correctional officers responded to an audible alarm, and went to the cell shared by appellant and an inmate named Page. When officers arrived it was determined that appellant had stabbed Page with "an apparent inmate manufactured weapon." Page was removed and sent to a hospital for treatment, while appellant was removed from the cell and rehoused in "ASU-F06."

On August 28, 2009, appellant signed a change of plea that was filed on September 3, 2009, by which he agreed to plead no contest to the possession of a weapon count, with a stipulated sentence of four years in state prison, to run consecutive to the sentence he was then serving. He also agreed to make restitution to the victim. In return, all remaining counts and special allegations would be dismissed.

Appellant entered his plea in open court on September 3, 2009. At that time, as he did on the written plea form, in exchange for the plea deal appellant voluntarily waived his rights including the right to a jury trial, to call witnesses, and to testify. The trial court accepted the plea. Appellant also waived his right to a presentence review and report, and indicated a desire to be sentenced immediately. The court then sentenced appellant in accordance with the plea agreement, including the imposition of a four-year state prison term to be served consecutive to all other time appellant was then serving.

The only issue left unresolved at the time the plea was entered and appellant was sentenced was that of the amount of restitution. A discussion ensued as to whether appellant could be ordered to pay restitution for the cost of the victim's government-paid medical expenses. The court ordered the probation department to prepare a report on the amount of restitution, and the matter was continued.

At the continued hearing to discuss restitution, the prosecutor reported that the cost to treat the victim totaled $160,000, and that $40,000 in transportation costs were incurred as a result of the victim's evacuation to a hospital by air. The matter was continued again, and subsequently, hearings were held on November 19, 2009, March 4, May 13, June 17, and July 8, 2010. At the July 8 hearing, appellant waived the right to have a restitution hearing, although he contested "the appropriateness of ordering that amount to the inmate." The court ordered restitution to be paid by appellant to the inmate in the amount of $40,900.54, a sum equaling that paid by the prison to medical providers, plus an administrative fee and interest.

Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the plea or in sentencing. The restitution fines and penalties imposed were supported by the law and facts. (See People v. Hove (1999) 76 Cal.App.4th 1266.) At all times, appellant was represented by counsel.

DISPOSITION

The judgment is affirmed.

We concur: SEPULVEDA, J. RIVERA, J.


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