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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

Plaintiff and Respondent,

v.

WESLEY WILLIAM KESSLER,

Defendant and Appellant.

C079257

(Super. Ct. No. 14F04267)

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.
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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 

 

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 Further undesignated statutory references are to the Penal Code.
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the “cost of urinalysis testing”; a $40 court operations assessment (§ 1465.8, subd. 

(a)(1)); and a $30 court facility fee (Gov. Code, § 70373). 

The abstract of judgment reflects imposition of a $300 restitution fine (§ 1202.4); 

a $300 parole revocation fine (§ 1202.45), stayed pending successful completion of 

parole; a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a $30 court 

facility fee (Gov. Code, § 70373). The abstract correctly omits the $702 fee for the 

presentence report and the $46 monthly fee for probation costs, as both fees require an 

express finding of an ability to pay and there was no grant of probation. (See § 1203.1b, 

subds. (a) & (b).) The $25 fee was also properly omitted from the abstract, as there was 

no testing order.

On January 6, 2015, defendant filed a petition for reduction of his felony 

conviction for violation of section 21310 to a misdemeanor pursuant to Proposition 47. 

The trial court denied the petition, finding defendant ineligible as his current conviction

was not subject to reduction under Proposition 47. 

On February 17, 2015, defendant filed an untimely notice of appeal and request 

for certificate of probable cause. 

On April 2, 2015, defendant filed an ex parte motion for disposition of fines 

(§ 1205, subd. (a)) requesting that his fines be converted into days of imprisonment and 

run concurrent with his confinement. The trial court denied the request.

On June 15, 2015, defendant filed a second notice of appeal and request for 

certificate of probable cause. On June 19, 2015, defendant filed a third notice of appeal 

and request for certificate of probable cause. This court granted defendant’s request for 

permission to file a notice of appeal under the constructive filing doctrine and deemed 

defendant’s notice timely for all purposes. Defendant did not secure a certificate of 

probable cause.
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DISCUSSION

Counsel filed an opening brief that sets forth the facts of the case and requests this 

court review the record and determine whether there are any arguable issues on appeal. 

(Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of his right to file a 

supplemental brief within 30 days of the date of filing of the opening brief. 

Defendant filed a supplemental one-page brief claiming--as far as we are able to 

discern--that his trial counsel was ineffective for (1) failing to obtain a reduction of his 

felony conviction for violating section 21310, either by way of a Proposition 47 petition 

or some other means; and (2) failing to secure an order for “a rehabilitation program” for 

defendant. 

First and foremost, because defendant did not secure a certificate of probable 

cause, to the extent that he argues ineffective assistance of counsel led him to enter a 

felony plea instead of a plea to a misdemeanor and thus erroneously receive a 

(negotiated) felony sentence, his claim is barred. (See People v. Cuevas (2008) 44 

Cal.4th 374, 381, 382 [where defendant does not directly challenge the plea but 

challenges “the very sentence he negotiated as part of the plea bargain,” he attacks the 

validity of his plea].) However, because we cannot be sure of the exact nature of 

defendant’s claims, we nevertheless address them briefly.

To establish a claim of ineffective assistance of counsel, defendant must prove that 

(1) trial counsel’s representation was deficient because it fell below an objective standard 

of reasonableness under prevailing professional norms, and (2) the deficiency resulted in 

prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389.) “In general, the 

proper way to raise a claim of ineffective assistance of counsel is by writ of habeas 

corpus, not appeal.” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1; accord 

People v. Mai (2013) 57 Cal.4th 986, 1009.) 
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With respect to reduction of defendant’s felony conviction to a misdemeanor, 

Proposition 47 created a resentencing provision, codified in section 1170.18, which 

provides that a person currently serving a sentence for certain designated felonies may 

petition for recall of the sentence to reduce the felony to a misdemeanor. Section 21310 

is not one of those designated felonies, thus making defendant ineligible for reduction 

under Proposition 47, as correctly noted in the trial court’s denial of defendant’s 

January 6, 2015, petition. 

With respect to the remainder of defendant’s claims, we cannot discern from this 

record the reason or reasons why defendant’s counsel acted as he did in plea negotiations, 

nor can we discern what, if anything, occurred regarding defendant’s claimed request for 

“a rehabilitation program.” Thus, those matters are more appropriately pursued on 

habeas corpus, to the extent that defendant’s claims, when fleshed out, do not go to the 

validity of his plea. (See In re Chavez (2003) 30 Cal.4th 643, 651 [“A defendant who 

challenges the validity of [a guilty] plea on the ground that trial counsel rendered 

ineffective assistance in advice regarding the plea may not circumvent the requirements 

of section 1237.5 by seeking a writ of habeas corpus”].)

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant.
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DISPOSITION

The judgment is affirmed.

 /s/

Duarte, J.

We concur:

 /s/

Hull, Acting P. J.

 /s/

Hoch, J.