Opinion
2d Crim. No. B303754
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN KARL KEPLER, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2018032398)
(Ventura County)
John Karl Kepler appeals an order denying his petition for resentencing pursuant to Penal Code sections 667, subdivision (a), and 1385. The resentencing petition concerned his May 1, 2019, conviction of first degree burglary with findings of two prior serious felony and strike convictions and service of three prior prison terms. (§§ 459, 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) Pursuant to a negotiated plea, the trial court sentenced Kepler to a prison term of 10 years.
All statutory references are to the Penal Code. --------
We appointed counsel to represent Kepler in this appeal. After examination of the record, counsel filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) In response, we advised Kepler that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him asserting that a lesser prison term would permit him to participate in residential drug rehabilitation. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a brief factual and procedural summary of the case.
On September 18, 2018, the Ventura County District Attorney charged Kepler with residential burglary. The circumstances of the crime involved Kepler's September 16, 2018, burglary of a Ventura hotel room during the absence of its registered guests. The prosecutor charged Kepler with residential burglary, and alleged that he suffered two prior serious felony and strike convictions and served three prior prison terms. (§§ 459, 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
On March 27, 2019, pursuant to a plea agreement, Kepler waived his constitutional rights and pled guilty to residential burglary. He also admitted the serious felony and strike allegations and service of the prior prison terms. The maximum sentence that could be imposed upon Kepler was 37 years to life, a sentence that the prosecutor requested.
As the trial court had indicated during Kepler's plea, it sentenced him to a 10-year prison term. The court struck one of the two serious felony and strike convictions and two of the three prior prison term enhancements. The court imposed a low term of two years, which it then doubled; a five-year term for the remaining serious felony enhancement of section 667, subdivision (a); and one year for a prior prison term enhancement of section 667.5, subdivision (b). The court imposed certain fees and assessments but found that Kepler had no financial ability to pay others, and it awarded him 456 days of presentence custody credit. Kepler did not appeal the conviction and it has long been final.
On December 19, 2019, Kepler filed a petition seeking resentencing pursuant to the January 1, 2019, amendments to sections 667, subdivision (a) and 1385. The trial court summarily denied the petition, noting that it knew of and already had exercised its discretion to dismiss one of the two serious felony and strike convictions when it sentenced Kepler on May 27, 2019. Given Kepler's 30-year criminal history of drug, property, and violent crimes, the court did not abuse its discretion by not striking the second section 667, subdivision (a) five-year enhancement.
Kepler then filed a second resentencing petition seeking relief pursuant to the January 1, 2020, amendment to section 667.5, subdivision (b). The trial court summarily denied the petition, correctly noting that Kepler's conviction had long been final and that the amendment did not apply.
The order is affirmed.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
David M. Hirsch, Judge
Superior Court County of Ventura
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.