Filed 1/23/20 P. v. Kocak CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN KOCAK,

Defendant and Appellant.

D076176

(Super. Ct. No. SCD110465)

APPEAL from an order of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

John Kocak appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.91. His counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) to determine whether there are any arguable issues for review. We informed Kocak of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995, a jury convicted Kocak of one count of rape by foreign object (§ 289, subd. (a); count 11), three counts of forcible rape (§ 261, subd. (a)(2); counts 12, 15, and 19), one count of attempted forcible rape (§§ 664 and 261, subd. (a)(2); count 13), two counts of sodomy by use of force (§ 286, subd. (c); counts 14 and 21), one count of forcible oral copulation (§ 288a, subd. (c); count 20), three counts of first degree burglary (§§ 459, 460, and 462; counts 1, 8, and 10), two counts of false imprisonment by violence (§§ 236 and 237; counts 3 and 18), two counts of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), counts 6 and 16), and two counts of first degree robbery (§§ 211 and 212.5, subd. (a); counts 7 and 17).

On January 26, 1996, a judge sentenced Kocak to an indeterminate term of 50 years to life for counts 12 and 15 and a determinate term of 50 years for the remaining counts, including sentences based on the upper term for counts 7, 11, 14, 19, 20, and 21.

In November 2018, Kocak filed a petition for writ of habeas corpus seeking relief pursuant to section 1170.91. The superior court deemed the petition a petition for resentencing and Kocak filed a statement of mitigation in support of resentencing pursuant to section 1170.91. Kocak asserted that he suffered from posttraumatic stress disorder (PTSD) and substance abuse following a sexual assault that occurred while he was an active member of the Unites States military, but that he had not previously raised the issue and the superior court therefore had not considered it as a mitigating factor at his original sentencing.

The superior court held a hearing on the petition on July 8, 2019. After considering the pleadings and hearing arguments from the parties, the superior court denied the motion.

Kocak subsequently filed a timely notice of appeal.

DISCUSSION

Kocak’s appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, indicating he has not been able to identify any arguable issues for reversal on appeal, and asking this court to review the record for error as mandated by Wende. We informed Kocak of his right to file supplemental briefing, and he has not done so.

To assist this court in its review of the record and as required by Anders, supra, 386 U.S. 738, Kocak’s counsel has identified the issues he considered in evaluating the merits of this appeal as follows: “Did the trial court abuse its discretion in refusing to resentence pursuant to section 1170.91?”

If the party moving for resentencing pursuant to section 1170.91 establishes that he or she is or was a member of the United States military and “may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service” (§ 1170.91, subd. (a)), “the court may, in its discretion, resentence the person following a resentencing hearing” (§ 1170.91, subd. (b)(3)). Here, the superior court accepted Kocak’s representations as true but nevertheless denied his request for resentencing. Given the severity of the underlying crimes, we find no abuse of discretion in that decision.

We have independently reviewed the entire record and have considered the issue identified by appellate counsel as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issues for reversal on appeal.

Competent counsel has represented Kocak on this appeal.

DISPOSITION

The order is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.