P. v. Johnson

Filed 10/13/06 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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On August 23, 2005, an information was filed against Bernard Johnson alleging in count 1 a violation of Penal Code^[1] section 207, subdivision (a) (kidnapping) and an enhancement pursuant to section 12022.53, subdivision (b) (personal firearm use); in counts 2, 3, 4, and 5, each, a violation of section 245, subdivision (a)(2) (assault with a firearm) and an enhancement pursuant to section 12022.5, subdivision (a)(1) (personal firearm use); in counts 6, 7, 8, 9, and 14, each, a violation of section 422 (criminal threats) and an enhancement pursuant to section 12022.5, subdivision (a)(1); in counts 10, 11, 12, and 13, each, a violation of section 236 (false imprisonment by violence) and an enhancement pursuant to section 12022.5, subdivision (a)(1); and in count 15 a violation of section 459/460, subdivision (a) (first degree burglary) and an enhancement pursuant to section 12022.5, subdivision (a)(1).

On October 20, 2005, the court denied Johnson’s Marsden^[2] motion for appointment of new counsel.

On November 1, 2005, the court denied Johnson’s second Marsden motion for appointment of new counsel. Following the denial of the second Marsden motion, Johnson pled guilty to violation of section 245, subdivision (a)(2) and admitted the 12022.5, subdivision (a)(1) enhancement, as alleged in count 5, and pled guilty to three counts of violation of section 422, as alleged in counts 6, 7, and 8. He entered his pleas with the understanding that the remainder of the information would be dismissed and he would be sentenced to state prison for a stipulated term of four years for violation of section 245, subdivision (a)(2), a stipulated middle term of four years for the 12022.5, subdivision (a)(1) enhancement, and one-third the middle term, or eight months, for each violation of section 422, for a total prison term of ten years.

On December 9, 2005, the court sentenced Johnson to state prison for the stipulated ten-year sentence. He was awarded 284 days of presentence credit against the prison term. In addition, the court ordered him to pay a $3,000 restitution fine, a $3,000 fine pursuant to section 1204.45 that was stayed pending successful completion of parole, and a $20 court security fee.^[3]

A timely notice of appeal was filed on December 9, 2005.

Johnson’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel that Johnson was advised he could file his own brief with this court. By letter on April 17, 2006, we invited Johnson to submit additional briefing. To date, he has not done so.

After independently reviewing the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.

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

^[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[3] On April 5, 2006, the $20 court security fee was deleted and an amended abstract of judgment issued reflecting the deletion.