People v. Johnson CA5

Filed 1/10/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084357
Plaintiff and Respondent,
(Super. Ct. No. PCF409536)
v.
LARRY ANTHONY JOHNSON, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Tulare County. Antonio A.
Reyes, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Peña, J.
Defendant Larry Anthony Johnson pled no contest pursuant to a negotiated plea
agreement to voluntary manslaughter, admitted personal use of a knife in commission of
the offense, admitted a prior “strike” conviction within the meaning of the
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d))1 and a
prior serious felony conviction (§ 667, subd. (a)). Appointed counsel for defendant asked
this court to review the record to determine whether there are any arguable issues on
appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to
file a letter stating any grounds on appeal within 30 days of the date of filing of the
opening brief. Defendant filed two letters: first, contending that he was not competent
when he entered his plea agreement; and second, contending that the trial court was
unaware of its discretion, granted by Senate Bill No. 1393 (2017−2018 Reg. Sess.)
(Senate Bill 1393), to strike his prior serious felony conviction enhancement. He has
identified no basis for relief, nor have we. We affirm.
PROCEDURAL SUMMARY
On October 12, 2021, the Tulare County District Attorney filed an information
charging defendant with the murder of J.P. (§ 187, subd. (a); count 1). As to count 1, the
information further alleged that defendant personally used a deadly weapon, a knife
(§ 12022, subd. (b)(1)), had suffered two prior strike convictions (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)), and had suffered three prior serious felony convictions (§ 667,
subd. (a)(1)).
On April 9, 2021, defendant entered pleas of not guilty and not guilty by reason of
insanity and the trial court appointed two medical examiners to evaluate defendant’s
sanity pursuant to section 1026. On May 28, 2021, the court appointed an additional
doctor to evaluate defendant’s competency to stand trial pursuant to section 1368.
On September 16, 2021, the trial court found defendant competent to stand trial.
1 All further undesignated statutory references are to the Penal Code.
2.
On November 18, 2021, pursuant to a negotiated plea agreement, defendant pled
no contest to voluntary manslaughter on count 1, admitted one prior strike conviction,
admitted one prior serious felony conviction, and admitted using a deadly weapon, a
knife, in the commission of the offense. In exchange for his plea, the agreement provided
that defendant would be sentenced to the upper term of 11 years on count 1, doubled to
22 years due to the prior strike conviction, plus a five-year serious felony conviction
enhancement, plus a one-year use of a deadly weapon enhancement for an aggregate term
of imprisonment of 28 years. The plea agreement also provided that defendant waived
his right to appeal.
On March 9, 2022, the trial court imposed the stipulated sentence.
On May 10, 2022, defendant filed a notice of appeal. The notice of appeal was
postmarked on May 5, 2022.
FACTUAL SUMMARY 2
Christopher Marvin was a police officer in Tulare County on March 1, 2021. At
approximately 12:23 p.m. on that date, he responded to a call regarding a stabbing at a
cemetery. When he and an assisting officer arrived at the cemetery, he found defendant
and J.P. J.P. was standing but bent over. Defendant told Marvin, “I stabbed that mother
f****r over there,” and pointed to J.P. Marvin also learned from cemetery staff that J.P.
had been stabbed. Marvin ran to J.P. As he ran, he observed J.P. fall to the grass.
Marvin checked J.P. for injuries and located a puncture wound below J.P.’s left nipple.
J.P. appeared to be unable to speak and was gasping for air. Marvin rolled J.P. to his side
2 Defendant’s appointed counsel provided a summary of the facts based on the
probation report after stating defendant “entered a no contest plea prior to a preliminary
hearing .…” That is factually incorrect. The trial court held a preliminary hearing on
September 28, 2021. Defendant was held to answer on the same date. On November 18,
2021, defendant entered his no contest plea. Our factual summary is drawn from the
preliminary hearing transcript.
3.
and placed him in the “recovery position.” He then waited with J.P. until emergency
medical responders arrived.
Others in the area pointed Marvin toward a knife and a cell phone that belonged to
J.P. Both were approximately 20 to 30 feet from J.P.’s body. The knife blade was
approximately eight inches long and the handle was approximately four inches long.
Daniel Bradley was an officer with the Tulare Police Department on March 1,
2021. He also responded to the call regarding a stabbing. He followed an ambulance
from the cemetery to the hospital. He stayed with J.P. in the hospital and learned from
the supervising emergency room doctor that J.P. had suffered a single stab wound
through his heart. At 1:09 p.m., the supervising emergency room doctor declared
defendant dead.
Jose Esparza was also an officer with the Tulare Police Department. On March 1,
2021, at 2:15 p.m., he interviewed E.V. E.V. told him that she and her granddaughter
went for a walk and passed through the cemetery. While there, she saw defendant yelling
“ ‘mother f****r’ ” and “ ‘son of a b***h’ ” at J.P. Defendant had a knife concealed
behind his back and stabbed J.P. three times on the chest, near the heart. J.P. attempted
to stand after being stabbed but he fell and hit his head on a tombstone. E.V. then began
to record the incident. She described that after defendant stabbed J.P., he walked around
as though he was not bothered. E.V. did tell Esparza that she observed which of the men
was the initial aggressor.
Dan Scott was an officer with the Tulare Police Department. He was called to the
cemetery in relation to the stabbing. He conducted a walkthrough of the crime scene.
During the walkthrough he discovered a “silver-colored fixed-blade knife, a cellphone,
… a decorative brick that was put by a [grave that] … seemed to be moved from a
location that ma[de] sense for it to be in,” and a pot that appeared to have been knocked
over. Scott also spoke to D.J. and D.F., cemetery groundskeepers. D.J. observed J.P. fall
to the ground several times. D.J. thought J.P. may be intoxicated and called D.F. over the
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radio. D.J. then asked J.P. if he was alright. Defendant shouted at D.J. that he had gotten
into a fight with J.P. and that D.J. had “[b]etter not help [J.P.] ….” Defendant also stated
that J.P. had tried to hurt him and may have told D.J. that D.J. needed to help defendant.
D.J. and D.F. walked together toward J.P. and defendant moved toward D.J. and D.F. in a
manner they found threatening. Specifically, defendant approached D.J. and D.F. with
one fist clenched and a knife held in his other hand.
Scott also spoke to J.K., who had come to the cemetery with J.P. the evening
before he was stabbed. She told Scott that they sat in the cemetery and drank alcohol.
Eventually the two decided to leave but J.P.’s vehicle would not start. J.P. walked away
from the vehicle to contact someone to help start his vehicle. Approximately 25 to
30 minutes later, she was contacted by police officers. J.K. did not see J.P. argue with
anyone and had not seen him with a knife.
After leaving the crime scene, Scott spoke to pathologist Dr. Gary Walters at the
Tulare County Coroner’s Office. Walters told Scott that J.P. “died of exsanguination”
within minutes of suffering “a stab wound to the right ventricle of his heart.” He also
suffered a “superficial cut to the anterior of the left upper shoulder, [a cut to] the anterior
of the left arm[,] … [an] abrasion above his right eye[,] … an abrasion on his back[,] and
a defensive wound on his left ring finger.”
Scott also obtained surveillance video footage from the cemetery. In viewing the
video footage, he saw that defendant and J.P. were involved in “two separate [physical]
fights.” The first fight occurred nearer to J.P.’s vehicle. The fight lasted only a matter of
moments and what each man did was not clear from the video, but defendant appeared to
move away after that initial encounter. The two then separated: defendant moved toward
the center of the cemetery and J.P. moved about 75 yards from the initial fight, in the
direction of his vehicle.
About five to six minutes later, the two men could be seen on a different
surveillance video walking parallel to each other. Defendant appeared to be yelling at
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J.P. and “moving his hands about wildly.” Defendant then walked toward J.P. The two
engaged in a second fight in which defendant made approximately three stabbing
movements toward J.P.’s chest. After J.P. had been stabbed, he walked one or two steps
toward defendant and defendant picked up a decorative brick and threw it at J.P. J.P.
attempted to stand but fell several times. Defendant walked away from J.P.
DISCUSSION
Wende Review
As noted above, defendant’s appellate counsel filed a brief pursuant to People v.
Wende, supra, 25 Cal.3d 436, asserting he could not identify any arguable issues in this
case. After defendant’s appellate counsel filed his Wende brief, by letter dated
October 13, 2022, we invited defendant to inform this court of any issues he wished
addressed. On October 25, 2022, defendant responded to our letter, alleging that he was
“incompetent the day [he] ple[]d [no contest] and waived [his] right to appeal.” He
contends that the trial court “made no attempt to ensure [he] was competent ….”
On November 23, 2022, defendant submitted a second letter, apparently also
responding to our invitation that he inform the court of issues he wished addressed. He
contends that the trial court erred in concluding that it lacked the discretion to strike the
prior strike conviction enhancement and the prior serious felony conviction enhancement.
He contends that the trial court “was unaware that Senate Bill 1393 gave him the
discretion to exercise his [j]udicial authority and strike or dismiss [section] 667,
[subdivision] (a)(1)” enhancements.
In both respects, defendant’s allegations are unsupported by the record.
First, on September 16, 2021, the trial court found defendant was competent to
stand trial based upon the parties’ stipulation that, based on his report, the doctor who
completed defendant’s competency evaluation would have testified that defendant was
competent to stand trial.
6.
Approximately two months later, on November 18, 2021, defendant entered his no
contest plea. On that date, the trial court engaged defendant in the following colloquy:
“THE COURT: All right. Now, obviously based on the
amendments that are being made the agreement is going to be that you’ll
receive a total prison term of 2[8] years. [¶] … [¶] Do you understand
that, [defendant]?
“THE DEFENDANT: Yes.
“THE COURT: Okay. Obviously[,] you’re receiving a state prison
commitment, so you’ll be subject to, based on the nature of the charges, it
may be a lifetime parole requirement. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: You further may have fines imposed based on the
convictions up to $10,000. [¶] Do you understand that consequence also?
“THE DEFENDANT: Yes.
“THE COURT: Okay. Now, have you had enough time to talk to
your … lawyer?
“THE DEFENDANT: Yes.
“THE COURT: Do you have any other questions for your lawyer or
the Court before I continue to take your plea?
“THE DEFENDANT: No.
“THE COURT: Are you satisfied with the advi[c]e of your lawyer?
“THE DEFENDANT: Yes.
“THE COURT: Are you taking any medications or anything of any
nature that would effect your ability to understand these proceedings?
“THE DEFENDANT: No.”
The trial court then inquired of defense counsel regarding his opportunity to
discuss the plea with defendant:
7.
“THE COURT: All right. Now, [defense counsel], have you had
the thorough opportunity to discuss the facts of the case, the circumstances
of the case, the exposures of the issues of going to trial and further the
consequences of his plea with your client?
“[DEFENSE COUNSEL]: Yes, since the date of this and me being
assigned to this case, I’ve spent hours and hours via phone and also visiting
my client. We’ve gone through all of the risks, all of the facts of this case,
and so the answer to that is yes.”
The trial court then advised defendant of the impact of waiving his right to appeal
prior to taking his waiver:
“THE COURT: [Defendant], further as part of the offer being made,
the offer is being made on the condition that you waive your appellate
rights. [¶] Do you understand that, [defendant]?
“THE DEFENDANT: Yes.
“THE COURT: So that would mean your right to appeal, your right
to appeal any sentencing, your right to appeal any issues regarding any
motions that may be considered by the Court prior to trial.
“THE DEFENDANT: Yes.
“THE COURT: Do you understand that you’re waiving those rights,
sir?
“THE DEFENDANT: Yes.”
Between the date that the court found defendant to be competent and the date that
it took his no contest plea, the court held a preliminary hearing on defendant’s case. At
that hearing, the court and defendant’s counsel were able to observe defendant. Neither
voiced a concern regarding his competency.
Section 1368 creates an ongoing obligation for a trial judge to state any doubts
regarding a defendant’s competence on the record and “inquire of the attorney for the
defendant whether, in the opinion of the attorney, the defendant is mentally competent.”
(§ 1368, subd. (a).) Defense counsel shares a similar obligation. (§ 1368, subd. (b).) In
this case, the court and trial counsel were able to observe defendant at the restoration of
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competency proceedings, the preliminary hearing, and the change of plea hearing.
Neither voiced concerns about defendant’s competency. Indeed, at the change of plea
hearing, the trial court inquired of defendant whether “anything of any nature” caused
him to be unable to understand the proceedings. Defendant responded, “No.” The trial
court also inquired of defendant whether he understood the terms of the plea agreement,
whether he was satisfied with the advice of his counsel, whether he had sufficient time to
discuss the plea agreement with his counsel, and whether he understood the waiver of his
right to appeal. Defendant answered in the affirmative to all those inquiries. The trial
court was required to do no more to verify defendant’s competence. Based on the entire
record, we see no indication that the trial court erred by not delving deeper into
defendant’s competence on the date he entered the plea agreement; defendant was found
competent two months prior to his plea and the court had no reason to believe he was no
longer competent.
Second, the trial court was correct that it lacked the discretion to impose a
sentence other than the sentence set forth in the plea agreement. Section 1192.5,
subdivision (b), provides in relevant part, that when a “plea is accepted by the
prosecuting attorney in open court and is approved by the court, … the court may not
proceed as to the plea other than as specified in the plea.” Here, the plea agreement
expressly set out the stipulated term of imprisonment on count 1 and each enhancement.
While, effective January 1, 2019, Senate Bill 1393 did generally grant trial courts the
discretion to strike five-year serious felony conviction enhancements, in this case the trial
court’s discretion was cabined by the terms of the plea agreement which required
imposition of a five-year serious felony conviction enhancement. The trial court was
9.
correct that in this case it lacked the discretion to strike the five-year serious felony
conviction enhancement. The trial court did not err. 3
After a thorough review of the record, we agree with defendant’s appellate counsel
there are no arguable issues in this case. There is nothing in this record to suggest any
error occurred.
DISPOSITION
The judgment is affirmed.
3 We note that because defendant waived his right to appeal his sentence as set out
in the plea agreement, we need not have reached the merits on this claim. We did so only
in an abundance of caution.
“[A] defendant [may] waive the right to appeal as part of the [plea] agreement,” as
long as the waiver is “knowing, intelligent, and voluntary.” (People v. Panizzon (1996)
13 Cal.4th 68, 80.) “ ‘A negotiated plea agreement is a form of contract, and it is
interpreted according to general contract principles. [Citations.]’ [Citation.] Likewise,
‘[b]ecause waivers of appellate rights are ordinarily found in the context of a plea
bargain, the scope of the waiver is approached like a question of contract interpretation—
to what did the parties expressly or by reasonable implication agree? [Citations.]’ ”
(People v. Becerra (2019) 32 Cal.App.5th 178, 188–189.) On the record, as set out
above, we are convinced that defendant’s waiver of his right to appeal his conviction and
sentence were knowing, intelligent, and voluntary. The trial court imposed the specific
sentence the parties bargained for. The purported error that defendant complains of is
therefore not a future error outside of defendant’s contemplation at the time he waived his
appellate rights. (Panizzon, at pp. 85–86.) Defendant’s challenge to his sentence as set
out in the plea agreement is therefore waived.
We further note that defendant entered his plea after the effective date of Senate
Bill 1393. Our rejection of defendant’s claim that the trial court did not understand its
discretion did not involve a waiver of unknown future benefits of legislative enactments.
(See § 1016.8, subd. (a)(4).)
10.