P. v.
Johnson
Filed 3/5/12 P. v. Johnson CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
CLYDE JOHNSON, JR.,
Defendant and Appellant.
E051747
(Super.Ct.No. RIF132634)
OPINION
APPEAL
from the Superior Court of
County. Rafael A.
Arreola, Judge. (Retired judge of the
San Diego Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Dismissed.
James
R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Jennifer
A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Clyde Johnson, Jr., pleaded guilty to offenses arising out of a
vehicle pursuit that had taken place on August 20, 2006.
After his plea, defendant filed the instant appeal, alleging that a
material term of his plea bargain had not been honored: He had been promised at the time of plea that
he would be able to earn 50 percent credits against his sentence, but in fact
he was ineligible to earn credits at that rate, because of his prior strike
conviction.
Defendant
had also filed a writ proceeding,
based on the same alleged failure to honor the plea bargain. This court referred the matter to the
superior court with directions to issue an order to show cause. The trial court held oral argument on August
26, 2011, and
granted the writ. The court found that
defendant had been misinformed about his eligibility to receive 50 percent
credits on his state prison sentence.
The court granted relief in the form of withdrawing defendant’s guilty
pleas and reinstating the charges against him.
Defendant
urges that the court could and should have granted relief in the form of
specific performance of the plea bargain.
The Attorney General maintains that the matter is moot, because
defendant, after having his pleas withdrawn, has again pleaded guilty and been
sentenced to four years in state prison. We agree with the Attorney General that this
appeal is now moot.
FACTS
AND PROCEDURAL HISTORY
On
August
20, 2006, a
police officer saw defendant drive through a red traffic light in Claremont.
The officer activated his red lights and siren to pull over defendant’s
vehicle. Defendant initially pulled
over, but sped away when the officer got out of the patrol car. Defendant then drove through more red traffic
lights before entering the freeway.
A
highway patrol car took up the chase, with two other cars and a helicopter
participating in the pursuit. Defendant
committed numerous additional traffic
violations while attempting to flee.
Eventually, the chase ended in an unincorporated area of Riverside County.
The highway patrol officer who took charge of defendant at the stop
observed signs that defendant was under the influence of alcohol. A breath test showed that defendant had a
blood alcohol level of 0.09 percent.
Defendant
was charged with four offenses: count 1, evading a police officer (Veh. Code,
§ 2800.2); count 2, misdemeanor driving under the influence (Veh. Code,
§ 23152, subd. (a)); count 3, misdemeanor driving with a blood alcohol
level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); and count
4, misdemeanor driving while his license was suspended (Veh. Code,
§ 14601.2, subd. (a)). The
information also alleged that defendant had served four prior prison terms for
felony convictions (Pen. Code, § 667.5, subd. (b)), and that he had
suffered a prior strike conviction for making
667, subd. (c), 1170.12, subd. (c)(1)).
The
trial court exercised its discretion not to dismiss the strike allegation,
finding that defendant fell within the spirit of the three strikes law. Pursuant to a plea bargain, defendant agreed
to plead guilty to the four offenses and admitted the strike allegation. In exchange, the court dismissed the prior
prison term allegations, and imposed a prison term of four years (on count 1,
with misdemeanor sentences concurrent on the remaining counts), instead of a
maximum 11-year prison term. During a
colloquy in chambers, the parties had agreed that defendant would be able to
earn 50 percent conduct credits, despite his prior strike conviction.
After
he had been sentenced and begun serving his term, defendant complained to his
attorney that the Department of
Corrections and Rehabilitation was not allowing him to earn 50 percent
credits, because of his strike conviction.
The court agreed that the department was correct, but stated it would
rectify the situation.
Defendant
filed this appeal, as well as a writ petition, seeking specific performance of
the 50 percent credits term of his plea bargain.
ANALYSIS
I. The Appeal Is Moot
As
noted above, the trial court held a hearing on defendant’s writ petition in
August 2011. As a result, the trial
court agreed that the 50 percent credits had been a material term of the plea
bargain, such that defendant was entitled to withdraw his pleas.
We
requested letter briefs from the parties to address the issue whether this
appeal was rendered moot by the result of the writ proceedings. Initially, defendant argued that the matter
was not moot, because there were methods by which he could be sentenced so as
to achieve the promised sentence of four years, with the allowance of 50
percent credits. However, the Attorney
General has informed the court that defendant has recently again pleaded guilty
and received a four-year sentence.
“An
appeal should be dismissed as moot when the occurrence of events renders it
impossible for the appellate court to grant appellant any effective
relief.” (Cucamongans United for Reasonable Expansion v. City of
Cucamonga
(2000) 82 Cal.App.4th 473, 479 [Fourth Dist., Div. Two].) Here, defendant’s new plea agreement has
completely superseded his former bargain.
He has again pleaded guilty upon terms he now finds satisfactory. We can afford no remedy or relief arising out
of the superseded bargain.
DISPOSITION
Accordingly,
the instant appeal is dismissed as moot.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P.J.
MILLER
J.
