P. v. Johnson CA6

Filed 5/16/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038674
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS110094)
v.
FREDRICK LAMONT JOHNSON,
Defendant and Appellant.
In 2011, defendant Fredrick Lamont Johnson pled guilty to one felony count of
transportation of methamphetamine (Health & Saf. Code, §11379, subd. (a)) and one
misdemeanor count of possession of controlled substance paraphernalia. (Health & Saf.
Code, § 11364.) He also admitted a strike prior and two prison priors. (Pen. Code,
§§ 1170.12, subd. (c)(1), 667.5, subd. (b).) After striking the prior serious felony
conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 504), the trial court sentenced defendant to serve the upper term of
four years for the felony plus two consecutive one year terms for the prison priors. The
court ordered the sentence suspended and placed defendant on probation for three years.
On February 15, 2012, a notice of violation of probation was filed based on a new
offense. On June 6, 2012, defendant admitted the probation violation. On
August 8, 2012, the court imposed the previously suspended sentence of six years, and
awarded defendant 223 days of credit plus 110 days of good time credit. Defendant filed
a notice of appeal on August 9, 2012, and an amended notice of appeal on
October 9, 2012.
On appeal, we appointed counsel to represent defendant in this court. Appointed
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende) which states the case and the facts but raises no specific issues. Wende review is
only available in a first appeal of right. (People v. Serrano (2012) 211 Cal.App.4th 496,
501 (Serrano).) Because defendant’s appeal is from an order after judgment, and not a
first appeal of right, he is not entitled to Wende review. (Ibid.) Therefore, we will
proceed with this appeal pursuant to the standard we enunciated in Serrano.
Pursuant to Serrano, on March 14, 2013 we notified defendant of his right to
submit written argument in his own behalf within 30 days. On April 22, 2013, we
received a letter from defendant. In his letter defendant contends that his sentence was
cruel and unusual and should be modified pursuant to the Realignment Act. Nothing in
defendant’s letter raises any arguable issues on appeal.1 Therefore, we decline to retain
the case, and will dismiss the appeal as abandoned. (Serrano., supra, 211 Cal.App.4th at
pp. 503-504.)
1
We note that in conjunction with his Serrano letter, defendant submitted a
“Petition for Modification of Sentence” to this Court. Such a petition is properly filed in
the Monterey Superior Court. We have, therefore, forwarded defendant’s petition to the
superior court for consideration and disposition.
2
DISPOSITION
The appeal is dismissed as abandoned.
_____________________________________
RUSHING, P.J.
WE CONCUR:
_________________________________
PREMO, J.
_________________________________
ELIA, J.
3