P. v. Johnson
Filed 1/28/14 P. v. Johnson CA1/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL A. JOHNSON,
Defendant and
Appellant.
A139871
(Lake
County
Super. Ct. Nos. CR931131
CR931546 & CR931591)
Defendant Michael A. Johnson appeals
following judgments entered pursuant to no contest pleas entered to resolve these
three referenced cases. Specifically, in
case No. CR931131, defendant pleaded no contest to count 2, possession of tear
gas (pepper spray) (Pen. Code, § 22900) and count 1 was dismissed. In case No. CR931546, he pleaded no contest to
counts 1 and 3, possession of methamphetamine (
§ 11377, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1,
subd. (a)), respectively, and admitted one prior prison term (Pen. Code,
§ 667.5, subd. (b)); all other allegations were dismissed.
four years (three-year upper term for methamphetamine possession and one year for
the prior, and a concurrent 180 days for the suspended license and concurrent
year on the tear gas possession), to be completed in local custody pursuant to
community supervision and imposed 180 days, concurrently with the other
sentences.
His appellate counsel
has raised no issues and asks this court for an independent review of the
record to determine whether there are any issues that would, if resolved
favorably to defendant, result in reversal or
supplemental brief, and has done so. Upon independent review of the record, we conclude no arguable
issues are presented for review, and affirm the judgment.
Penal Code section 1237.5 generally precludes an appeal from a
judgment of conviction after a plea of no contest or guilty unless the
defendant has applied for, and the trial court has granted, a certificate of
probable cause. There are two
exceptions: (1) a challenge to a
search and seizure ruling, as to which an appeal is proper under Penal Code
section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People
v. Shelton (2006) 37 Cal.4th 759,
766; see also People v. Buttram (2003)
30 Cal.4th 773, 780.) Since defendant’s
application for a certificate of probable cause was denied, he is not able to
challenge the validity of his plea or any other matter that preceded its entry,
except as permitted under the exceptions.
(See People v. Cole (2001)
88 Cal.App.4th 850, 868.)
Defendant made suppression motions in the pepper spray and
methamphetamine cases. Officer Bradlee
Middleton testified in the pepper spray case. He observed defendant driving a car with
expired registration tags, then pull off the street into a lot, exit the
vehicle and quickly walk away. Middleton
stopped his car, exited and called out for defendant to stop and return to talk
to the officer. The officer saw
defendant toss away a black object near the car as he walked toward the
officer. Not knowing what the object was
and seeing others in the car, the officer, who was alone, detained defendant in
handcuffs for safety purposes and ran a records check, which showed defendant
was on post release community supervision, subject to a search. He then searched defendant and found the
canister of pepper spray. The trial
court correctly ruled the initial detention (the order to stop walking and
return to the officer) was proper to investigate the apparent vehicle code
violation (the expired registration tags).
It also correctly ruled the handcuffing during the detention was
justified given defendant’s tossing away an unidentified object towards the
car, the presence of others in the defendant’s car, and the fact the officer
was alone at the scene and reasonably concerned about safety. The detention was brief and during that time
the officer learned defendant was subject to search. Accordingly, the
Officer Michael Ray testified in the methamphetamine case. He was enroute, with his K-9, to contact an
individual, and at a stop sign saw defendant in a small pickup truck. Looking at the officer, defendant began
backing up against the flow of traffic, which the officer believed might be a
vehicle code violation, unsafe backing.
The truck then pulled to east shoulder, while the officer pulled up next
to the driver’s side of the truck. He
then recognized the defendant and asked why he had backed up. Defendant said he did not want the officer to
see him driving. The officer believed
defendant was on parole, and asked him if he was. Defendant confirmed that he was. The officer then conducted a parole search and
found in defendant’s pants pocket a substance he believed was methamphetamine
and in defendant’s shirt pocket a glass smoking pipe with residue. The trial court did not agree there was a
vehicle code violation, but properly concluded there was permissible contact
before any detention. At that point the
officer recognized defendant, and was aware of defendant’s parole and
properly denied.
The second exception to the requirement for a probable cause
statement does not encompass defendant’s motion to withdraw his plea on grounds
he was under the influence of pain killers for an injury he had sustained in
jail and he believed his prior attorney would get him into a drug treatment
program and represent him in a civil action against the Sheriff. This is an attack on the validity of the plea
based on alleged circumstances that preceded the plea and, therefore, is within
the probable cause statement requirement.
(People v. Johnson (2009) 47
Cal.4th 668, 679; see also People v.
Placenia (2011) 194 Cal.App.4th 489, 494–495.) In any case, defendant testified, as did his
prior attorney. It was within the trial
court’s province to determine which testimony to credit, and it credited that
of defense counsel. There was no abuse
of discretion in denying defendant’s motion to withdraw his plea.
The trial court also did not commit any error or abuse its
discretion in sentencing defendant.
Defendant was ably represented by counsel, who urged probation and
treatment. The prosecution urged
imposition of the upper term on the drug possession charge in light of
defendant’s decade of drug abuse and extensive criminal history. The trial court duly explained its sentencing
decision on the record. While
recognizing defendant’s substance abuse problem, it was persuaded aggravating
factors predominated, including criminal history, poor performance on
probation, and increasing seriousness of criminal conduct. Custody credits were properly determined.
Disposition
After a
full review of the record, we find no arguable issues and affirm the judgments.
_________________________
Banke,
J.
We
concur:
_________________________
Margulies,
Acting P. J.
_________________________
Becton,
J.
included that defendant committed the offense while out on bail in case No. CR931131
and three other prior prison terms (Pen. Code, § 667.5, subd. (b)).
County Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
