P. v. Johnson

Filed 4/6/07 P. v. Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael K. Kellogg, Judge. Dismissed.

Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Patrick A. Johnson (Johnson) appeals the judgment (order revoking probation) entered following his plea of no contest to failing to annually register as a sex offender (Pen. Code, 290, subdivision (a)(1)(D))^[1]in Superior Court case number TA077620, and the judgment entered following his plea of no contest to making a terrorist threat ( 422) and admission he had previously been convicted of a felony pursuant to the Three Strikes law ( 667, subd. (b) to (i); 1170.12, subd. (a) to (d)) in Superior Court case number BA293282. The trial court sentenced Johnson to a total term of six years in state prison. We dismiss Johnsons appeals as inoperative for failure to obtain certificates of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Case No. TAO77620.

Johnson was convicted of one count of forcible rape and one count of forcible sodomy in the Missouri Superior Court in St. Louis in 1994. He was sentenced to a term of ten years in the Missouri state prison.

After his release from the Missouri prison, Johnson came to California where, in 2002 and 2003, he registered as a sex offender. Johnson failed to register in 2004 and 2005.

b. Case No. BA293282.^[2]

Anthony Johnson (Anthony) testified he and Johnson play together in a musical band. On November 10, 2005, the band was rehearsing at a home on Wilton Avenue in Los Angeles when Johnson became very disruptive. Anthony, who was acting as the band director, asked Johnson to leave and Johnson began cursing at Anthony. Johnson told Anthony he wanted to beat [Anthonys] ass. When Anthony then cursed at

Johnson, Johnson pulled a .45 nickel plated automatic handgun from his waistband and pointed it at Anthony. Johnson was standing approximately three feet from Anthony and, from the look in [Johnsons] eyes, Anthony believed Johnson was going to shoot him. Anthony told Johnson, If you shoot me, you go to jail for life, then ran from the room and telephoned police.

Ann Tucker (Tucker) is the manager of the band and was present at the November 10th rehearsal. She testified Johnson had been late for the rehearsal and the other band members had become agitated. When Johnson finally arrived, Anthony told Johnson he was not going to play in the band that day. Anthony and Johnson began to argue and Johnson told Anthony that he [Johnson] ought to shoot [Anthony.]. For a time, Tucker stood between the two men, with her back to Johnson. At some point, Johnson told Anthony, Motherfucker, Ill blow your head off. Anthony responded by telling Johnson, I dont give a damn anyway. Just get your ass out of here[.] By this time Tucker had moved out from between the two men and toward the door. She was still facing Anthony and had her back to Johnson. Tucker told Anthony to just move, just go out of the room. Anthony then walked quickly out the door. Tucker did not see Johnson in possession of a gun that day.

2. Procedural History.

In a felony complaint in case number TA077620 filed on or about January 10, 2005, Johnson was charged with failing to annually register as a sex offender in violation of section 290, subdivision (a)(1)(D). It was further alleged pursuant to section 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law, that Johnson had previously been convicted of forcible rape and sodomy in St. Louis, Missouri on November 18, 1994.

At proceedings held on January 27, 2005, the trial court struck the alleged prior Three Strikes convictions and Johnson pleaded no contest to failing to annually register as a sex offender. The trial court suspended imposition of sentence and placed Johnson on three years felony probation, under the terms of which he was to spend the first 270 days in county jail. Johnson was given presentence custody credit for 33 days. As one

condition of probation, Johnson was not to own, use or possess an[y] dangerous or deadly weapons.

On March 15, 2005, a petition to revoke Johnsons probation was filed alleging he had failed to report after having been advised of his obligation to do so in a letter sent to his last known address. A bench warrant for Johnsons arrest was issued on April 14, 2005 and he was taken into custody on October 14, 2005.

At a hearing held on November 3, 2005, the trial court found Johnson to be in violation of his probation. Johnsons probation was revoked, then reinstated on the original terms except that the trial court imposed a suspended sentence of three years in state prison and ordered Johnson to serve 360 days in county jail. In addition, the condition that Johnson perform community service was deleted. Johnson was given presentence custody credit for an additional 30 days. He was ordered to report to probation within 24 hours of [his] release from jail and to register pursuant to . . . [section] 290 within five days.

On November 15, 2005, the Los Angeles District Attorneys Office filed a request for revocation of Johnsons probation in case number TA077620, asserting Johnson had been arrested for making terrorist threats and being a felon in possession of a firearm. Johnsons probation was revoked on November 29, 2005.

On December 1, 2005, a preliminary hearing was held in case number BA293282. At the close of the hearing, Johnson was held to answer to the charges of making a terrorist threat and being a felon in possession of a firearm.

An information was filed in case number BA293282 on December 15, 2005. The information charged Johnson with making a terrorist threat in violation of section 422, during the commission of which he personally used a firearm in violation of section 12022.5, and being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1). It was further alleged Johnson had suffered four prior felony convictions (two counts of forcible rape and two counts of forcible sodomy) within the meaning of sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law, and suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).

At proceedings held on April 5, 2006, Johnson pleaded no contest in case number BA293282 to making a terrorist threat in violation of section 422 and admitted having been convicted of one prior felony within the meaning of the Three Strikes law. In exchange, the trial court sentenced Johnson to the upper term of three years in prison, then doubled the term to six years. All remaining counts and allegations were dismissed. Johnson was awarded 219 days of presentence custody credit.

At the same proceedings, the trial court imposed in case number TA077620 the three-year suspended sentence, the term to run concurrently with the six year sentence imposed in case number BA293282. Johnson was awarded 519 days of presentence custody credit.

On June 9, 2006, Johnson filed a motion/writ of error corum nobis, or motion to vacate or set aside his plea, in case number BA293282. Johnson asserted he was pressured into entering the [no contest] plea . . . . He further stated he could show on the record that the People were not able to produce necessary witnesses and thus, even though he faced a maximum prison term of 80 years, the prosecutor could not prove [he committed the alleged crimes]. Finally, Johnson indicated that his deputy alternate defender did not speak with his witnesses.

A hearing was held on June 20, 2006. The trial court denied the motion, stating, There is no basis [on which] to set aside this plea. This [was] a negotiated settlement where the defendant [Johnson] was facing somewhere in the neighborhood of 40 years to life and they offered him a determinate sentence of six years. The court was satisfied at the time of the plea . . . the defendant was made fully aware that this was a strike and that he would be sentenced to six years and that it would be at 80 percent . . . .

On June 21, 2006, Johnson timely filed a notice of appeal from the judgments entered in both case number TA077620 and case number BA293282. His notice of appeal indicates his appeal is based on the sentence and other matters occurring after the plea as well as the validity of the plea.

Johnson requested a certificate of probable cause, asserting (1) the trial court erred in denying his petition or motion to withdraw his plea, (2) he was pressured into entering the plea in case number BA293282, (3) he did not understand his no contest plea [in case number BA293282] at the time it was entered, and (4) he was deprived of his constitutional right to a jury trial. On June 28, 2006, the trial court denied Johnsons request.

On October 24, 2006, counsel was appointed to represent Johnson on appeal.

CONTENTIONS

After examining the record, Johnsons counsel sought correction of the abstract of judgment in the trial court with regard to the number of presentence custody credits awarded to Johnson. Counsel then filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed January 19, 2007, the clerk of this court advised Johnson to submit within 30 days any contention, ground of appeal, or argument he wished this court to consider. In response, on February 16, 2007, Johnson filed a letter in which he asserted imposition in case number BA293282 of the upper term sentence of three years in prison, doubled to six years pursuant to the Three Strikes law, violated the rules of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (20070) 549 U.S. __ [127 S.Ct. 856] (Cunningham).

DISCUSSION When a defendant enters a plea of guilty or no contest, he may not bring an appeal challenging the validity of the plea unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562; see 1237.5.) Further, a certificate must be obtained regardless of other procedural challenges being made. . . . [A] defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. [Citations.] (In re Chavez (2003) 30 Cal.4th 643, 651.)

Johnsons contention that imposition of the bargained for upper term sentence violated the rules of Apprendi, Blakely and Cunningham goes to the validity of the plea itself and, as such, is not cognizable on appeal absent a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766 [ [A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause.].) Moreover, even if we were to consider Johnsons contention, it would be without merit. By accepting the negotiated sentence in exchange for dismissal of numerous alleged charges, Johnson waived any claim imposition of the upper term was improper. (Id. at p. 767; People v. Buttrum (2003) 30 Cal.4th 773, 783.)

REVIEW ON APPEAL

We have examined the entire record and are satisfied Johnsons counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Johnson pleaded no contest and failed to obtain certificates of probable cause, the appeals must be dismissed as inoperative. (In re Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1094-1099; 1237.5.)

DISPOSITION

The appeal (order revoking probation) from Superior Court case number TA077620 is dismissed.

The appeal from Superior Court case number BA293282 is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P.J

.

CROSKEY, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

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

^[2] The facts are taken from the transcript of the December 1, 2005, preliminary hearing.