Filed 10/17/17 P. v. Johnstone CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
JACK RYAN JOHNSTONE,
Defendant and Appellant.
| C083290
(Super. Ct. No. 16CF00604)
|
Appointed counsel for defendant Jack Ryan Johnstone asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
BACKGROUND[1]
The victim and defendant had planned a date. Defendant picked up the victim at her house, driving a sports utility vehicle (SUV). While driving, defendant scratched his crotch. The victim joking asked if he had crabs.
Defendant got angry, and unbuttoned and unzipped his pants exposing an erection. He grabbed the victim by the hair and forced her head into his lap. He pulled over and forced her to perform oral sex—despite her telling him her soft upper pallet caused her pain.
Defendant then dragged her, by her hair, to the back of the SUV; the rear seats were folded down. There, he forced her to perform oral sex again. He then pulled off her pants, placed her on her stomach, and sodomized her. As he did so, he held her down and ignored her pleas for him to stop. After he ejaculated, he again forced her to perform oral sex on him.
He then told the victim to lie next to him. When defendant fell asleep, the victim found her phone and sent a text message to a friend, telling the friend to call and say she needed to come home immediately.
When the victim’s cell phone rang, defendant allowed her to answer it. She told her friend on the phone that she was with defendant, and he would be taking her home. Fearing defendant would kill her, she repeatedly told her friend she was with defendant.
Defendant crawled to the driver’s seat and said he would take her home. On the way home he forced her to perform oral sex on him again. He also forced her to pose for a photo with her breast exposed and threatened to post the photo to the Internet if she told anyone.
Bringing her home, defendant stopped his SUV a few houses away from the victim’s home. At home, the victim told her roommate and a friend what happened. She then called the police.
The victim’s cell phone contained text messages and a call history that corroborated her telling of the events. The victim’s injuries included rectal bleeding and redness, swelling, and abrasions. A pillow found in the rear of the SUV had semen on it and reddish brown stains, consistent with dried blood.
Defendant pleaded no contest to one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)), in exchange, the remaining counts were dismissed with a Harvey[2] waiver.
The trial court imposed the upper term of eight years, along with various fines and fees. The court awarded 230 days of credit (200 actual; 30 conduct).
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
HULL , J.
ROBIE , J.
