People v. Kessler CA3

California Court of Appeal Mar 8, 2016 No. C079257Unpublished

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Holding. The court affirmed the defendant's conviction and sentence, finding no arguable error in the record and noting that the defendant's ineffective assistance of counsel claims were either barred for lack of a certificate of probable cause or more appropriately raised via habeas corpus.

Issues

Whether the defendant's ineffective assistance of counsel claims are barred by the failure to obtain a certificate of probable cause.
Whether the defendant's conviction under Penal Code section 21310 is eligible for reduction to a misdemeanor under Proposition 47.
Whether the record supports any arguable error on appeal under People v. Wende.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 21310 is not one of those designated felonies, thus making defendant ineligible for reduction under Proposition 47”

“Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.”

Filed 3/8/16 P. v. Kessler CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C079257

Plaintiff and Respondent, (Super. Ct. No. 14F04267)

WESLEY WILLIAM KESSLER,

Defendant and Appellant.

Appointed counsel for defendant Wesley William Kessler has asked us to review his conviction pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant filed a supplemental brief asserting ineffective assistance of counsel at trial. We will affirm the judgment.

BACKGROUND On June 24, 2014, defendant was charged by criminal complaint with felony carrying a concealed dirk or dagger (Pen. Code, § 21310 -- count one)1 and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364.1 -- count two). The complaint alleged defendant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and that he was ineligible to be sentenced to a term of imprisonment other than in state prison (§ 1170, subd. (h)(3)). On August 4, 2014, defendant entered a negotiated plea of no contest to count one and admitted the prior strike in exchange for a stipulated sentence of 32 months in state prison and dismissal of the balance of charges and allegations against him. The factual basis for the plea was as follows: On June 23, 2014, defendant, on parole for a prior 2012 conviction for arson, was stopped by a police officer. A three-inch locked blade dirk or dagger was found concealed inside defendant’s waistband. Defendant had previously been convicted on November 29, 2012, of arson (§ 451, subd. (d)), a strike. On October 1, 2014, the trial court sentenced defendant to the low term of 16 months on count one, doubled pursuant to the prior strike, for an aggregate sentence of 32 months in state prison. The court awarded defendant 202 days of presentence custody credit (101 actual days plus 101 days of conduct credit), and imposed “[o]nly mandatory minimum fines and fees” and “each and every condition contained on pages 7 through 9 of the probation report.” The relevant pages of the probation report contain the following fees and fines: a $300 restitution fine (§ 1202.4); a $300 parole revocation fine (§ 1202.45), stayed pending successful completion of parole; $702 for the “[c]ost of investigation and presentence report”; $46 for the “monthly cost of probation”; $25 for

People v. Kessler CA3

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THE PEOPLE, C079257

WESLEY WILLIAM KESSLER,

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