People v. Porter CA1/3 ( 2021 )

Filed 10/19/21 P. v. Porter CA1/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A162486
v.
JOSHUA ALAN PORTER, (Del Norte County
Super. Ct. No. CRF21-9020)
Defendant and Appellant.
Defendant Joshua Alan Porter appeals a judgment entered upon his
plea of guilty to dissuading a witness.1 His counsel has filed an opening brief
raising no issues and asking this court for an independent review of the
record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised
of his right personally to file a supplemental brief, but he has not done so.
Defendant was charged on January 20, 2021 with felony first degree
burglary (Pen. Code, §§ 459, 460, subd. (a); count 1);2 felony dissuading a
witness by force or threat (§ 136.1, subds. (b)(1) & (c)(1); count 2);
misdemeanor contempt of court for violation of a protective order (§ 166,
The notice of appeal erroneously refers to the case number below as
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CRF21-9021, but the attached abstract of judgment contains the correct
number, CRF21-9020.
2 All undesignated statutory references are to the Penal Code.
subd. (c)(1); count 3); and misdemeanor resisting, obstructing, or delaying a
peace officer or emergency medical technician (§ 148, subd. (a)(1); count 4).
As to counts 1 and 2, the complaint alleged defendant had suffered a prior
conviction for making a criminal threat (§ 422), which was both a strike
(§§ 667, subd. (d), 1170.12, subd. (b)) and a serious felony (§ 667, subd. (a)(1)).
Defendant initially pled not guilty and denied the special allegations.
He later entered into a plea agreement under which he would plead guilty to
count 2 and admit a strike allegation, with a four-year aggravated sentence
(§ 136.1, subds. (b)(1) & (c)(1)) doubled for the strike (§ 1170.12, subd. (c)(1)),
for a total term of eight years, and the District Attorney would refrain from
filing charges on two other violations of section 136.1. The plea waiver form,
which defendant signed and initialed, included the terms and consequences of
the plea agreement and the rights he was giving up; a statement that he
consulted with his attorney and had sufficient time to consider the
agreement; and defense counsel’s certification that he had explained the
contents of the agreement to defendant and the signature was defendant’s
own.
At a hearing on February 2, 2021, defense counsel stated the terms of
the agreement, which included dismissing the remaining counts with a
Harvey waiver for purposes of restitution (People v. Harvey (1979) 25 Cal.3d
754) at the time of sentencing. On the court’s inquiry, defendant confirmed
he understood the terms and consequences of the agreement, the rights he
was giving up, and the possible fines and restitution he might be required to
pay; that he had had sufficient time to speak with his attorney; and that he
had signed a firearms relinquishment form.
The prosecutor stated a factual basis for the plea: defendant went to
his former wife’s house on January 17, 2021, broke in by kicking the rear
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door, broke locks to prevent her from locking him out, refused to leave when
she asked him to do so, and threatened that “things could go bad for her” if
she called law enforcement. He also sent her text messages telling her that if
she called law enforcement, “bad things will happen to her.”
Defendant pled guilty to count 2 and admitted a prior strike. The trial
court accepted the plea, finding defendant had freely and knowingly waived
his rights and understood the charges and possible consequences of the plea
and that there was a factual basis for the plea.
On February 25, 2021, the trial court sentenced defendant to a prison
term of eight years in accordance with the agreement. The trial court found
defendant had no ability to pay attorney fees, assessed the minimum
restitution, court security, and criminal conviction fines, fees, and
assessments (§§ 1204.4, 1465.8, Gov. Code, § 70373), gave him credit for time
served and conduct credits, and issued a domestic violence protective order
(§ 136.2, subd. (i)(1)). The remaining counts and enhancements were
dismissed, and the court reserved jurisdiction for purposes of victim
restitution.
Defendant filed a timely notice of appeal and requested a certificate of
probable cause on the ground his attorney falsely told him he would be
eligible for parole as a nonviolent offender. The trial court granted a
certificate of probable cause.
Defendant was represented by counsel throughout the proceedings, and
the record on appeal discloses no ineffective assistance. The probation report
confirms the factual basis for the plea. Defendant was informed of the rights
he was giving up and the consequences of his plea, and he was sentenced in
accordance with the plea. The sentence is authorized by law. We see no
meritorious issues to be argued.
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DISPOSITION
The judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
PETROU, J.
RODRIGUEZ, J.
People v. Porter (A162486)
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