People v. Kessler CA4/2

• Court: California Court of Appeal
• Decided: November 30, 2022
• Docket: E078939
• Status: Unpublished

Opinion

Filed 11/30/22 P. v. Kessler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078939

v. (Super.Ct.Nos. FVI20002445 FVI20003332) MICHAEL WILLIAM KESSLER, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Miriam Ivy

Morton, Judge. Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 STATEMENT OF THE CASE

On August 19, 2020, in case No. FVI2002445 (Case 1), a felony complaint

charged defendant with operating a “chop shop” under Vehicle Code section 10801

(count 1); and receiving a stolen vehicle under Penal Code1 section 496d (count 2).2 The

complaint also alleged that defendant had suffered one prior strike conviction within the

meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667,

subdivisions (b) through (i).

On November 20, 2020, in case No. FVI20003332 (Case 2), a felony complaint

charged defendant with assault with a deadly weapon under section 245, subdivision

(a)(1) (count 1); and vandalism under section 594, subdivision (a) (count 2). The

complaint also alleged that defendant had suffered two serious felony convictions under

section 667, subdivision (a)(1), and two prior strike convictions under section 1170.12,

subdivisions (a) through (d), and 667, subdivisions (b) through (i).

On March 17, 2022, in Case 2, defendant pled no contest to assault with a deadly

weapon (count 1), and vandalism (count 2). Defendant also admitted having suffered one

prior strike conviction. Defense counsel then stipulated that an aggravated term was

appropriate because the offense involved “great violence.”

1 All further statutory references are to the Penal Code unless otherwise specified.

2The complaint alleged a third count against codefendant Robin Renee Johnston. Johnston is not a party to this appeal.

2 On the same day, in Case 1, defendant pled no contest to receiving stolen property

(count 2). Defendant also admitted having suffered one prior strike conviction.

The remainder of the counts in Case 1 and Case 2, in addition to all the counts in a

third case, case No. FVI20003598, were dismissed with a waiver under People v. Harvey

(1979) 25 Cal.3d 754.

On April 20, 2021, the trial court sentenced defendant to a total term of 10 years

eight months in state prison as follows: (1) the upper term of four years, doubled per the

prior strikes, in Case 1, count 1; (2) a consecutive term of one year four months (one-

third the midterm, doubled), in Case 1, count 2; and (3) a consecutive term of one year

four months (one-third the midterm, doubled), in Case 1, count 2.

In both cases, the trial court also ordered defendant to pay restitution fines of $300

under section 1202.4, subdivision (b); and fines in the same amount under section

1202.45, stayed. The trial court retained jurisdiction on the issue of victim restitution.

Moreover, the trial court awarded defendant 981 days presentence custody credit,

491 actual days, and 490 days under section 4019.

On May 4, 2022, defendant filed timely notices of appeal in both cases, and the

trial court granted defendant certificates of probable cause.

FACTUAL AND PROCEDURAL HISTORY

A. CASE NO. FVI2002445 (CASE 1)

Sheriff deputies saw a reportedly stolen U-Haul rental van inside of the fenced

yard at defendant’s home. The deputies conducted surveillance of the property. During

the surveillance, the deputies saw assorted vehicle parts, and two other vehicles being

3 dismantled. Pursuant to a search warrant, the deputies conducted a search of the home.

They found keys to the van inside of the house, next to mail addressed to defendant.

B. CASE NO. FVI20003332 (CASE 2)

Sheriff deputies received a report of an assault with a deadly weapon at the home

of defendant’s former girlfriend, Robin Johnston, shared with the victim. When the

deputies arrived, they noticed a trail of blood leading up the front steps, across the living

room, and into the kitchen; and a broken window. The victim was found in the kitchen

bleeding from two large lacerations on his head.

The victim told the deputies that he was inside his home earlier when he heard a

loud bang, and someone yelling from outside. The victim went outside and found

defendant. Defendant was yelling for Johnston to come outside; defendant wanted the

return of his belongings and money. When the victim told defendant that Johnston was

not home, defendant left.

Johnston returned later that evening to the home. She was sitting in her bedroom

when her window broke. When Johnston looked out of her window, defendant was

standing in the yard and yelling at her. Johnston told defendant that his belongings were

in the garage, and that defendant could go in the garage to retrieve the items. Defendant

demanded that Johnston give him some money.

The victim went outside and demanded that defendant pay for the broken window.

The two “began to push each other and the victim put [defendant] in a chokehold.”

Defendant then grabbed a brick and tried to hit the victim with it.

4 Brian Wagley, who also resided in the house, came out and separated defendant

and the victim. Wagley demanded that defendant leave. Instead of leaving, defendant

picked up a broken shard of glass and stabbed the victim in the head twice. Wagley

separated defendant and the victim a second time, “and escorted [defendant] off of the

property. [Defendant] ran east from the residence to an unknown location.”

Paramedics responded and transported the victim to Desert Valley Medical Center

for treatment of his stab wounds. “[The victim] had two large lacerations, one on his

forehead and one on the center portion of his head. The victim also had defensive stab

wounds between his middle and ring fingers.”

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of

the case, a summary of the facts, and potential arguable issues, and has requested this

court to undertake a review of the entire record. Pursuant to Anders, counsel identified

the following issue to assist the court in its search of the record for error:

1. “Was appellant’s plea voluntary and intelligent? Boykin v. Alabama (1969)

95 U.S. 238.”

We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error. We are satisfied that defendant’s

5 attorney has fully complied with the responsibilities of counsel and no arguable issue

exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)

DISPOSITION

The judgments in both case numbers FVI2002445 and FVI20003332 are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

CODRINGTON J.

FIELDS J.