People v. Johnson CA6 ( 2016 )

Filed 9/28/16 P. v. Johnson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
H041579
Plaintiff and Respondent, (Monterey County
Super. Ct. No. SS131701A)
v.
CEDRIC CHESTER JOHNSON,
Defendant and Appellant.
THE PEOPLE, H042761
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. SS150250A,
SS150256A, SS150683A)
v.
CEDRIC CHESTER JOHNSON,
Defendant and Appellant.
I. INTRODUCTION
Defendant Cedric Chester Johnson appeals from final judgments related to four
criminal actions. Appointed counsel filed an opening brief summarizing the cases but
raising no issues. We notified defendant of his right to submit written argument on his
own behalf. Defendant responded by filing a supplemental brief.
Pursuant to People v. Wende (1979) 25 Cal. 3d 436 and People v. Kelly (2006)
40 Cal. 4th 106, we have reviewed the appellate records in their entirety and find no
arguable issues on appeal. Following the California Supreme Court’s direction in Kelly,
we provide “a brief description of the facts and procedural history of the case[s], the
crimes of which the defendant was convicted, and the punishment imposed.” (Id. at
p. 110.) We discuss defendant’s contentions and explain why we will affirm the
judgments. (Ibid.)
II. DISCUSSION
A. H041579
Defendant was charged with assault with a deadly weapon on a peace officer
(Pen. Code, § 245, subd. (c)), with two prior prison terms (§ 667.5, subd. (b)).1
According to the preliminary hearing transcript, in August 2013 officers were dispatched
to a residence to respond to a possible restraining order violation. Defendant, who was
leaving the scene as the officers arrived, “slightly struck” an officer in the knee with his
car travelling about five to eight miles per hour.
In May 2014, the information was orally amended to add a misdemeanor count of
being an accessory to battery on a peace officer (§§ 32, 245, subd. (c)). Defendant
pleaded no contest to that charge. Imposition of sentence was suspended and defendant
was placed on three years’ conditional probation. The court imposed a base fine and
penalty assessments totaling $2502 (§ 672), a $150 restitution fund fine (§ 1202.4,
subd. (b)), a suspended $150 probation revocation fine (§ 1202.44), a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment
(Gov. Code, § 70373).
Defendant filed a timely notice of appeal indicating a challenge to the sentence or
other matters occurring after the plea.
1
Undesignated statutory references are to the Penal Code.
2
The reporter’s transcript notes a “$260 fine that includes penalties and
assessments.” The clerk’s minutes indicate a “fine of $250.” To the extent there is
disagreement as to the figure, we adopt the minutes, as it appears to inure to defendant’s
benefit.
2
B. H042761
1. Superior Court Case No. SS150256A
In January 2015, defendant physically injured his girlfriend of seven months (Doe)
during an argument at his residence. Doe testified at the preliminary hearing in
March 2015 that defendant head butted her, grabbed her, threw her to the floor, and hit
her face with a clenched fist. When Doe tried to leave, defendant blocked the door and
pushed her away. Defendant finally opened the door and pushed her out. Doe sustained
a knot on her head and lacerations under her eye. Defendant was charged with felony
corporal injury to a spouse or cohabitant with a prior conviction (§ 273.5, subds. (a), (f);
count 1), and felony false imprisonment (§ 236; count 2). The information alleged two
prior prison terms (§ 667.5, subd. (b)).
2. Superior Court Case No. SS150250A
According to the probation report, in February 2015 police initiated a traffic stop
on defendant’s vehicle after receiving a tip that defendant, who was on probation, was
using and possibly selling drugs, and had been involved in a domestic violence incident.
Defendant resisted an officer’s attempt to restrain him, hitting the officer in the face and
walking away. Defendant aggressively resisted arrest. It took four officers to handcuff
him, and one officer fell to the ground injuring his knee during the struggle. Defendant
was found in possession of .6 grams of methamphetamine and 7.2 grams of marijuana.
Defendant’s passenger (Doe) gave the police a bag containing 27.1 grams of
methamphetamine when asked whether defendant had given her anything to hide during
the traffic stop.
A probation search of defendant’s home uncovered a digital scale with what
appeared to be traces of methamphetamine, glass smoking pipes, and a laptop computer
reported stolen. Police found several small baggies near 77 grams of marijuana,
suggesting that the marijuana was being prepared for sale. Neighbors informed the
officers searching the residence that there had been constant pedestrian traffic in and out
3
of defendant’s home day and night, and text messages on defendant’s phone suggested
defendant was selling methamphetamine.
Defendant was charged with felony counts of transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a); count 1), possession for sale of
methamphetamine (Health & Saf. Code, § 11378; count 2), possession of marijuana for
sale (Health & Saf. Code, § 11359; count 3), receiving stolen property (§ 496, subd. (a);
count 4), and misdemeanor counts of battery on a peace officer (§ 243, subd. (b); count 5)
and resisting an officer (§ 148, subd. (a)(1); count 6). The complaint also alleged two
prior prison terms. (§ 667.5, subd. (b).)
3. Superior Court Case No. SS150683A
According to the probation report, 11 days after the preliminary hearing in case
No. SS150256A, Doe reported to police that she had received several letters from
defendant, who was in custody at the county jail. The letters contained threatening
remarks, causing Doe to fear for her safety and the safety of her daughter. Doe also
reported having received phone calls from strangers asking her to put money in
defendant’s account at the jail. Defendant was charged with felony counts of making
criminal threats (§ 422, subd. (b); count 1), stalking (§ 646.9, subd. (b); count 2),
dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 3), and six
misdemeanor counts of violating a criminal protective order (§ 166, subd. (c)(1);
counts 4–9).
4. Motions and Disposition
A Marsden3 motion was heard and denied on March 27, 2015. On May 12,
counsel was relieved and new counsel was appointed. A second Marsden motion was
heard and denied on June 9. Shortly thereafter, defendant’s attorney declared a conflict
and new counsel was appointed.
3
People v. Marsden (1970) 2 Cal. 3d 118.
4
On June 25, 2015, after the cases were consolidated for trial, defendant entered a
negotiated disposition for a four-year prison term in case No. SS150256A consecutive to
a two-year prison term in case No. SS150683A and concurrent to all other sentences. In
case No. SS150256A defendant pleaded no contest to count 1 (corporal injury to a spouse
or cohabitant with a prior domestic violence battery conviction); in case No. SS150683A
defendant pleaded no contest to count 3 (dissuading a witness); and in case
No. SS150250A defendant pleaded no contest to count 1 (transporting a controlled
substance), count 5 (battery on a peace officer), and count 6 (resisting a peace officer).
On August 6, 2015, defendant filed a motion to withdraw his pleas. According to
trial counsel’s affidavit supporting the motion, on July 3 defendant informed counsel that
he wished to withdraw his pleas. Counsel then reviewed the court reporter’s transcripts
from February 24 and discovered that “the preliminary hearing [in case No. SS150250A]
was waived in order to keep a concurrent offer of an HS 11379 [count 1] and PC 148
[count 6] open.” In addition to counts 1 and 6, the prosecutor’s global offer included a
plea to count 5. Defendant argued that his pleas were subject to withdrawal because
(1) counsel rendered ineffective assistance by advising him to accept the global offer
while unaware of the February 24 agreement, and (2) the district attorney failed to abide
by the agreement. That motion was denied.
The court heard and denied further Marsden motions on August 19 and on
August 27, after it denied defendant’s motion to withdraw his pleas.
Defendant was sentenced to the middle term of four years on count 1 in case
No. SS150256A; the middle term of two years on count 2 in case No. SS150683A
consecutive to case No. SS150256A; and the middle term of three years on count 1, with
concurrent 180-day sentences on counts 5 and 6 in case No SS150250A concurrent with
case Nos. SS150256A and SS150683A. The remaining charges and allegations were
dismissed.
5
The court imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and
a $30 court facilities assessment (Gov. Code, § 70373) for each conviction, and a $300
restitution fund fine (§ 1202.4, subd. (b)) with a suspended $300 restitution fund fine
(§ 1202.45) for each felony conviction. In case No. SS150256A, the court issued an
order under section 273.5, subdivision (j), restraining defendant from any contact with
Doe for 10 years.4 In case No. SS150250A, the court imposed a $50 criminal laboratory
analysis fee (Health & Saf. Code, § 11372.5), a $50 drug program fee (Health &
Saf. Code, § 11372.7), and related penalty assessments. In case Nos. SS150250A and
SS150256A, the court ordered victim restitution in an amount to be determined
(§ 1202.4).
C. Defendant’s Supplemental Brief
Defendant argues that his plea was not voluntary or intelligent because his
attorney was unaware that the prosecutor had agreed to keep a plea offer open in case
No. SS150250A to a concurrent sentence for count 1 (transportation of
methamphetamine) and count 6 (resisting an officer) in exchange for his waiver of a
preliminary hearing in that case. He argues that counsel was ineffective and was “unable
to properly inform [defendant] of the benefits and detriments of accepting [the] new
offer” to which he pleaded.
The appellate issues raised by defendant arise after his no contest pleas and
therefore require a certificate of probable cause. (§ 1237.5; People v. Johnson (2009)
47 Cal. 4th 668, 676–680.) Defendant filed a notice of appeal in pro per. In support of
his request for a probable cause certificate, he alleged speedy trial violations and charging
4
In case No. SS150256A, the trial court also imposed a $500 domestic violence
fee under section 1203.097. That fee was imposed in error because section 1203.097
authorizes the fee as a condition of probation and defendant was not placed on probation.
At the request of appellate counsel, the trial court issued a corrected minute order in
March 2016 removing that fee. We have granted defendant’s request for judicial notice
of that order.
6
delay, that his drug offense was wrongly charged as a felony, and that he had wanted to
go to trial on the domestic violence offense because the victim confessed that he never
slapped her. The trial court denied that request. Trial counsel also filed a notice of
appeal supported by a request for a certificate of probable cause on the following
grounds: “Denial of motion to withdraw plea based on prosecution failure to abide by
preliminary hearing waiver offer in case No. SS150250A. [Defendant] plead to an
additional charge outside of the waiver offer and wants to withdraw pleas in all cases
based on that breach of agreement as this was a global disposition.” The trial court
denied that request, and appellate counsel filed a petition for a writ of mandate in this
court challenging that denial. (Johnson v. Superior Court, case No. H042948.) This
court denied that petition on December 17, 2015. That order is final and not subject to
reconsideration here. Defendant’s failure to secure a certificate of probable cause bars
consideration of his challenges. (People v. Shelton (2006) 37 Cal. 4th 759, 771.)
III. DISPOSITION
The judgments are affirmed. We dispose of defendant’s related petition for writ of
habeas corpus in case No. H043827 by separate order filed today.
7
____________________________________
Grover, J.
WE CONCUR:
____________________________
Rushing, P.J.
____________________________
Walsh, J.
People v Johnson
H041579 and H042761

Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.