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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

         v.

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.




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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




1   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.




                                              3
                                       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.)




                                               4
       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.




                                              5
                                   DISPOSITION
       The judgment is affirmed.




                                                  /s/
                                            Duarte, J.



We concur:



      /s/
Hull, Acting P. J.



     /s/
Hoch, J.




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