P. v. Johnson

Filed 6/26/07 P. v. Johnson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Paul Samuel Johnson appeals his conviction, following a plea of no contest, of one count of burglary. (Pen. Code,  459.)^[1] His appellate counsel has raised no issues on appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel also advised appellant in writing that a Wende brief was being filed and that appellant was entitled to file his own statement identifying any issues he wanted to call to the courts attention. Appellant has declined to file any such statement. (See People v. Kelly (2006) 40 Cal.4th 106.)

BACKGROUND

After appellant was charged by information with one count of burglary of a flower shop, he pled no contest and executed a written waiver of rights. He also agreed that the court had indicated it would suspend execution of an aggravated prison term and that he would waive all custody credits of any kind if he was accepted into a long-term residential treatment program. On March 17, 2004, the court suspended execution of the three-year aggravated sentence and placed appellant on three years probation. Conditions of probation included serving 12 months in county jail, with placement in a residential treatment program if a bed became available, and not leaving the residential program without written consent of the program director or his probation officer.

Appellant violated probation; probation was reinstated. He violated probation again. His probation was reinstated under the original terms and conditions, plus his additional waiver of any rights under Blakely v. Washington (2004) 124 S.Ct. 2531, and his reaffirmtion of waiver of all past, present, and future custody credits. After his third probation violation his probation was reinstated when he agreed to participate in and was accepted into the drug court program ( 1210). Thereafter, he was remanded into custody several times for violation of the drug court requirements.

On July 20, 2006, appellants probation was summarily revoked based on a police report of an altercation between appellant and his girlfriend and her mother. He admitted this conduct constituted a violation of his probation. On August 8, appellant was terminated from drug court.

The presentence report recommended, in light of his performance on probation, that appellants probation be revoked and appellant be committed to the Department of Corrections on the previously imposed three-year sentence. The court executed the sentence. Although appellant had waived all future custody credit at his second probation revocation hearing on August 25, 2004 , the court granted him 279 days of credit for time spent in jail between August 24, 2004 and his September 7, 2006 sentencing. It also imposed a $200 restitution fine.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant was represented by counsel throughout the proceedings. He was fully apprised of his constitutional rights and the consequences of his plea. He expressly waived his rights, and his waiver was knowing, intelligent and voluntary. His sentence comported with applicable law and his plea agreement. Execution of sentence, rather than reinstatement of probation, was not an abuse of discretion. Custody credits were calculated accurately, and appellant received a fair hearing and due process.

DISPOSITION

The judgment is affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Needham, J.

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^[1]All further section references are to the Penal Code.