P. v. Johnson







Filed 3/8/17 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

LEON MARCELL JOHNSON,

Defendant and Appellant.



E066542

(Super.Ct.No. FVI1600230)

OPINION


APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Leon Marcell Johnson pled no contest to assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).)[1]In exchange for the plea, a trial court dismissed one count of battery with serious bodily injury (§ 243, subd. (d)) and one prior strike conviction(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).In accordance with the plea agreement, thecourt placed defendant on probation for a period of three years under specified conditions.Subsequently, the court found him in violation of his probation and sentenced him to the upper term of four years in state prison. Defendant now appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Offense
On January 28, 2016, defendant’s uncle was asleep in his bedroom when he heard to door being forced open. Defendant entered the room and punched his uncle’s head and upper body with both fists. His uncle lost consciousness. According to defendant, he had been having issues with his uncle all day, as his uncle was saying disrespectful things to him.
The Probation Violation
On June 10, 2016, the probation department filed a petition for revocation of probation, alleging that defendant violated his probation by failing to cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives.
On July 29, 2016, a hearing was held on the petition. Defendant’s probation officer testified that she conducted a compliance check on May 5, 2016, and directed defendant to report on May 9, 2016. She testified that defendant failed to report as directed on May 9, 2016, and that he was therefore in violation of his probation. He eventually reported on May 11, 2016. The probation officer further testified that, on June 7, 2016, another compliance check was conducted, and defendant refused to answer basic questions about his employment, stating, “[i]t’s none of your business,” and “[w]hat does this have to do with probation?” Then, on June 28, 2016, the probation officer spoke with defendant on the phone and asked if he would be willing to cooperate with the probation terms. At first, he said he would, but then he indicated there were several terms he was just not willing to comply with.
After hearing testimony, the court found defendant in violation of his probation. It explained that he was being found in violation because he failed to report on May 9, 2016, as directed and because his attitude on probation “was wholly inadequate.” The court then found several aggravating circumstances, including that the underlying crime involved great violence, great bodily harm, or threat of bodily harm; that defendant had engaged in violent conduct, which indicated a serious danger to society; and that his prior convictions as an adult were numerous and of increasing seriousness. The court found no mitigating factors as to defendant. It revoked his probation, pronounced the judgment that was previously withheld, and sentenced him to the upper term of four years in state prison.
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent defendant. 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, and identifying two potential arguable issues: whether there was sufficient evidence to support the court’s finding that defendant violated his probation, and whether the court erred in imposing the upper term.
Defendant was offered an opportunity to file a personal supplemental brief, which he has not done.
Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


HOLLENHORST
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.


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[1] All further statutory references are to the Penal Code unless otherwise indicated.