IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
November 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL EDMOND KELLY, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM030922)
The opinion of the court was delivered by: Hull , J.
P. v. Kelly
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (Ibid.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant Michael Edmond Kelly and his father, Sean Kelly, cultivated marijuana as part of a medical marijuana cooperative. One of the two properties they used for the cultivation was defendant's property located at 13151 Jordon Hill Road.
In June 2009, law enforcement officials, accompanied by a state fish and game warden, conducted a video-taped search of the Jordon Hill Road property. The videotape, viewed by the jury, showed a marijuana grow area near a stream. The stream had been dammed across its width with a piece of sheet metal and some soil, creating a pool of water above the dam and leaving only a trickle of water to continue flowing downstream. The pool had been excavated and was approximately five to six feet wide, six to nine feet long, and 18 inches deep. There was a hose in the water and a generator running a water pump, removing water from the pool of water. Defendant used the water pumped from the stream to irrigate his marijuana and vegetable garden. A small bridge had been constructed on top of the dam, made from logs, tarp and about 12 inches of fill dirt.
The stream flowed into the Concow Creek. The fish and game warden opined that the dam significantly reduced the water flow and that the fill used could affect aquatic life by smothering fish and drying up crevices that contain eggs. Defendant did not have a permit for the dam.
Defendant and his father were acquitted of illegally possessing or cultivating marijuana (Health & Saf. Code, §§ 11358, 11359), but the jury found defendant guilty of misdemeanor diverting or obstructing a water stream without a permit (Fish & Game Code, § 1602, subd. (a)). The trial court denied defendant's motion for new trial on the ground of insufficient evidence and placed defendant on summary probation for three years on the condition he serve 30 days in county jail. The trial court awarded defendant five days of custody credit, and ordered restitution and probation revocation fines of $100 each, a $30 court security fee, and a $30 criminal conviction assessment.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: RAYE , P. J. DUARTE , J.
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