People v. Napier CA1/5

Filed 7/12/23 P. v. Napier CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A165405 v. KEITH L. NAPIER, (Alameda County Super. Ct. No. H54603) Defendant and Appellant.

Appellant Keith Napier (appellant) appeals from the trial court’s order denying recall and resentencing under Penal Code section 1172.1.1 Appellant has not shown the court abused its discretion. PROCEDURAL BACKGROUND In September 2013, the Alameda County District Attorney filed an information charging appellant with assault with a deadly weapon (§ 245, subd. (a)(1); count 1); aggravated mayhem (§ 205; count 2); and attempted murder (§§ 187, subd. (a), 664; count 3). The information included allegations that appellant personally inflicted great bodily injury (permanent paralysis) (§ 12022.7, subd. (b)) and that appellant personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)). The information further

1 All undesignated statutory references are to the Penal Code.

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alleged that appellant committed the offenses while on parole (§ 1203.085, subd. (b)), that he had served four prior prison terms (§ 667.5, subd. (b)), and that he had suffered two prior serious and violent felony convictions (§§ 667, subd. (a)(1), 667.5, subd. (a)). In October 2014, appellant pleaded no contest to the assault charge and admitted the allegations that he had inflicted great bodily injury and had suffered a prior serious felony conviction. The plea was in exchange for a term of 14 years in prison and the dismissal of the remaining charges and allegations. The trial court sentenced appellant to the agreed-upon term, comprised of 4 years for the assault conviction, 5 years for the injury enhancement, and 5 years for the prior serious felony conviction. In October 2019, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall of appellant’s sentence and resentencing under former section 1170, subdivision (d)(1) (now section 1172.1). The letter referenced an amendment to section 1385 giving the trial court discretion to dismiss an enhancement under section 667, subdivision (a)(1). In compliance with the procedures of section 1172.1, the trial court appointed counsel and held a hearing. In April 2022, the court denied recall and resentencing on the ground that appellant posed an unreasonable risk of danger to public safety. The present appeal followed. FACTUAL BACKGROUND According to the probation officer’s report, on the evening of June 4, 2012, Hayward police officers responded to a report of “a man down on the sidewalk.” The officers learned from witnesses that the victim, appellant, and two others drove from Vallejo to a Motel 6 in Hayward, close to the location where the officers responded. “The victim was attempting to meet