P. v. Johnson
Filed 12/7/07 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. KATHLEEN LANELL JOHNSON, Defendant and Appellant. | D050298 (Super. Ct. No. SCD201533) |
In re KATHLEEN LANELL JOHNSON on Habeas Corpus. | D051195 |
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County and petition for writ of habeas corpus, David J. Danielsen, Judge. Judgment affirmed and petition denied.
Kathleen Lanell Johnson[1]pled guilty to two counts of possession of a controlled substance for sale (Health & Saf. Code, 11378) and admitted she had three prior convictions for narcotics-related offenses (Health & Saf. Code, 11370.2, subd. (c)) and
that she had served three prior prison sentences (Pen. Code,[2] 667.5, subd. (b)). The trial court sentenced Johnson to an aggregate prison term of nine years.
In this consolidated proceeding, Johnson appeals the judgment of conviction and petitions for a writ of habeas corpus.
FACTS
On September 13, 2006, police officers searched the residence of codefendant Lawrence Neubert. Johnson, who was sleeping on the living room couch, gave the officers consent to search her belongings. An officer found ten $20 bills, three plastic bags containing 2.7 grams of methamphetamine and one plastic bag containing psilocybin.
On November 9 Johnson pled guilty to the possession counts and admitted the allegations that she had suffered three prior narcotics-related convictions and had served three prior prison terms. On the change of plea form and at the hearing, Johnson acknowledged that the maximum prison sentence she could receive was 15 years and eight months.
At the December 13 sentencing hearing, the court sentenced Johnson to two-year prison terms for each of the possession counts, to run concurrently, plus consecutive three-year enhancements for each of two of the prior narcotics-related convictions and a consecutive one-year enhancement for one of the prison prior convictions.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable issues: (1) whether Johnson can challenge the validity of the plea on direct appeal on the basis that she did not understand the terms of the plea agreement; and (2) whether the trial court's sentence fell within the terms of the plea bargain.
We granted Johnson permission to file a brief on her own behalf. She has not responded.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Robbins on this appeal.
In her petition for a writ of habeas corpus, Johnson, appearing in propria persona, challenges her sentence, claiming that (1) the imposition of enhancements totaling seven years violated the "double the base term" limitation, and (2) the sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] because the enhancements were imposed consecutively without any jury findings. These claims are without merit.
Johnson's reference to the "double the base term" limitation is to former section 1170.1, subdivision (g), which provided, with some exceptions, a double-the-base-term cap on an aggregate sentence. (See Stats. 1994, ch. 1188, 12.7, p. 7202.) However, in 1997, the Legislature repealed former section 1170.1, subdivision (g), when it rewrote section 1170.1. (Stats. 1997, ch. 750, 3, pp. 4059-4060; People v. Nguyen (1999) 21 Cal.4th 197, 204, fn. 2.) Johnson has apparently relied on case law that preceded the 1997 abrogation of former section 1170.1, subdivision (g).
With regard to Johnson's second argument, neither the state nor federal Constitutions confers on her the right to have a jury determine factual issues related to prior convictions for purposes of a sentencing enhancement. (People v. Epps (2001) 25 Cal.4th 19, 23; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243.) Further, sentencing enhancements based on prior convictions may be imposed without a jury finding or a defendant's admission in compliance with the Apprendi v. New Jersey (2000) 530 U.S. 466 line of cases. In Apprendi, the high court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490; see also Blakely v. Washington (2004) 542 U.S. 296, 301.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), overruled on other grounds by Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], our Supreme Court held that the trial court's decision to impose consecutive sentencing does not violate a defendant's right to a jury trial. In People v. Black (2007) 41 Cal.4th 799, 820-823 (Black II), our Supreme Court reaffirmed its earlier holding and stated: "Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences." (Id. at p. 823.) Imposition of consecutive sentencing enhancements did not violate Johnson's constitutional rights to a jury trial and due process of law. (See Black II, supra, at p. 823.)
DISPOSITION
The judgment is affirmed, and the petition for writ of habeas corpus is denied.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
[1] Johnson is also known as Kathleen Lanell Siabashi and she is referred to by both names in the various court documents associated with this appeal and writ petition.
[2] All further statutory references are to the Penal Code.
