People v. Johnson CA5

Filed 6/26/15 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069311
Plaintiff and Respondent,
(Super. Ct. No. PCF288067)
v.
JEREMY PAUL JOHNSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Gary M. Johnson, and Glade F. Roper,† Judges.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, State of California, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Smith, J.
†
Retired judge of the Tulare Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
Jeremy Paul Johnson pled no contest to carrying a concealed dirk or dagger (Pen.
Code, § 21310) and possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)). Johnson initially was placed on felony probation and ordered to participate in
the drug court program. Despite numerous opportunities to do so, Johnson failed to
comply with any of the requirements imposed on him as part of the probation/drug court
sentence. He admitted he violated his probation and was sentenced to a midterm
sentence of two years eight months.
Johnson’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25
Cal. 3d 436 stating she did not identify any arguable issues in the appeal. By letter dated
July 28, 2014, we invited Johnson to submit any arguments he might have about his case.
Johnson responded to our letter. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The complaint contained two causes of action. The first cause of action charged
Johnson with carrying a concealed dirk or dagger. (Pen. Code, § 21310.) The second
cause of action charged Johnson with possession of methamphetamine. (Health & Saf.
Code, § 11377, subd. (a).)1 Johnson pled no contest to each charge when the trial court
indicated it would sentence him to formal probation and order he participate in the drug
court program. Johnson was advised of his constitutional rights and was informed the
maximum sentence he faced was three years eight months.
Johnson failed to appear for his sentencing hearing on September 18, 2013. He
was arrested on the warrant issued for his failure to appear, and on October 7, 2013, was
sentenced to formal probation and ordered to participate in the drug court program. He
was ordered to enroll in an approved drug program. A review hearing was scheduled for
1The complaint alleged Johnson had a prior conviction that constituted a strike
within the meaning of Penal Code section 667, subdivisions (b) through (i). This
allegation was dismissed by the prosecution before Johnson entered his plea.
2.
October 21, 2013. Johnson failed to appear at the review hearing and later was arrested
on the warrant issued as a result of his failure to appear.
On November 14, 2013, he was arraigned on the violation of probation and the
matter was scheduled for a hearing on November 25, 2013. Johnson admitted the
violation of probation at the November 25 hearing and was ordered to serve 14 days as a
sanction for the violation. A review hearing was scheduled for December 2, 2013.
On December 2 Johnson was released, probation was reinstated, and he again was
ordered to participate in the drug court program. He was ordered to enroll in a testing
and drug program. A review hearing was scheduled for December 9, 2013; Johnson
failed to appear and probation was revoked.
Johnson was arrested on the warrant issued as a result of his failure to appear on
December 9, 2013, and was present in court on December 16. He was arraigned on the
violation of probation, which he denied. A review hearing was scheduled for December
18, 2013.
On December 18 Johnson admitted the violation of probation, and the trial court
reinstated probation and ordered Johnson to participate in the drug court program. A
review hearing was scheduled for January 8, 2014; Johnson failed to appear.
On January 24, 2014, Johnson was in custody on the warrant issued as a result of
his failure to appear on January 8, 2014. He was arraigned on the violation of probation,
which he denied. The next hearing was held on February 5, 2014. Johnson admitted the
violation of probation. However, the trial court denied his request to be reinstated into
the drug court program.
On March 26, 2014, the trial court revoked probation and sentenced Johnson to a
midterm sentence of two years eight months in jail. He was given credit for the time he
had served in custody.
3.
Johnson filed a notice of appeal that indicated his appeal was based on the
sentence imposed or other matters that did not affect the validity of the plea. No specific
matter was identified in the notice.
DISCUSSION
Penal Code section 1237.5 precludes an appeal from the judgment entered after a
guilty plea unless the defendant applies for, and the trial court grants, a certificate of
probable cause. Without a certificate of probable cause, any issues raised by the
defendant generally are not reviewable. (People v. Sem (2014) 229 Cal. App. 4th 1176,
1187.)
There are two exceptions to this general rule. A defendant does not need a
certificate of probable cause to appeal when the appeal addresses postplea matters not
challenging the plea’s validity, or when the issue is the lawfulness of a search or seizure
that was first contested in the trial court before the defendant entered a plea. (People v.
Mendez (1999) 19 Cal. 4th 1084, 1096; Cal. Rules of Court, rule 8.304(b)(4).)
In response to our letter, Johnson asserted he was promised a sentence of one year
four months in jail, not two years eight months. We reviewed the record and there is no
evidence to support this assertion. When he pled no contest to the charges in the
complaint, he was advised the maximum sentence was three years eight months. There is
no other discussion of sentence in either the clerk’s transcript or the reporter’s transcript,
except for an indication Johnson would be placed on probation and ordered to participate
in the drug court program. This is the sentence that initially was imposed.
The only other argument advanced by Johnson was that he pled to concealing a
dirk or dagger, but the record indicates he was charged with possession of a dirk or
dagger. The charge to which Johnson pled was carrying a concealed dirk or dagger,
pursuant to Penal Code section 21310. This is the crime with which he was charged.
4.
Finally, Johnson asserts the weapon he was carrying was not a dirk or dagger.
This assertion is not reviewable because Johnson did not obtain a certificate of probable
cause.
In addition to Johnson’s letter, we have reviewed the entire record in this case.
Our review did not identify any arguable issues.
DISPOSITION
The judgment is affirmed.
5.