P. v. Johnson
Filed 3/20/13 P. v. Johnson CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LACEDRIC W.
JOHNSON,
Defendant and Appellant.
A136223
(San Mateo County
Super. Ct.
No. SC036915A)
Defendant
Lacedric W. Johnson appeals from an order, dated June 11, 2012, which denied his motion to correct an
unauthorized sentence. His appellate
counsel has filed a brief pursuant to
436, and asks us to independently review the record. Defendant has also submitted a supplemental
letter brief asking us to consider two issues.
We have examined the entire
record in accordance with People
v. Wende. For reasons set forth
below, we agree with appellate counsel that no
FACTS
After
a jury trial in 1996, defendant was convicted of
(a)
and assault with a firearm
(§ 245, subd. (a)). As to each
count, the jury found true that defendant used a firearm (§ 1203.06, subd.
(a)(1), 12022.5, subd. (a)), discharged a firearm at an occupied vehicle
(former § 12022.5, subd. (b)(1)), and inflicted great bodily
injury(§ 12022.7, subd. (a)) on the carjacking victim. After a bench trial, the trial court found
true that defendant had suffered a prior strike conviction for first degree
robbery (§§ 667, subd. (a), 1170.12, subd. (c)(1), and had served a prior
prison term for a burglary conviction within the meaning of section 667.5,
subdivision (b). Defendant was sentenced
on April 28, 1997, to an aggregate term of 36 years, consisting of nine
years (aggravated term) for carjacking, doubled for a prior strike conviction,
plus consecutive terms of 10 years (aggravated term) for weapon enhancement
(§ 12022.5, subd.(a)), five years for a prior serious felony conviction,
and three years for great-bodily-injury enhancement. The court also imposed but stayed the sentences
on the assault conviction and the related enhancements pursuant to section
654. Defendant filed an unsuccessful
direct appeal and a consolidated petition for writ of habeas corpus, and review
was denied by the Supreme Court. (
A079137, A082014) [nonpub. opn.], review denied June 3, 1999, S077790.)
In
April 2012, defendant in propria persona filed this motion to correct an
unauthorized sentence, challenging his sentence as illegal on three
grounds: (1) the imposition of the
upper term of 10 years for the weapon enhancement was in error as no
aggravating factors were submitted to the jury nor proven beyond a reasonable
doubt in violation of Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi);
Blakely v. Washington (2004) 542 U.S.
296 (Blakely), and
270 (Cunningham); (2) at the
time of sentencing, section 1170.1, subdivision (e), purportedly provided that
for a carjacking conviction, the trial court could not impose both weapon and
great-bodily-injury enhancements, but only the greater enhancement; and
(3) while the trial court mentioned several aggravating factors for
imposing the upper term on the carjacking conviction, the trial court failed to
state its reasons for imposing an aggravated term on the weapon enhancement.
By
a written order filed June 11,
2012, the trial court denied the motion. In its discussion, the trial court only
addressed defendant’s first two arguments.
The trial court found that because defendant’s 1997 sentence was final
prior to the United States Supreme Court’s Blakely
decision, . . . the law as stated in Apprendi, Cunningham,
Cal.4th 650)], “does not require the judgment to be set aside in this case, and
the trial court did not unlawfully sentence [d]efendant beyond the statutory
maximum.†The trial court also found
defendant’s sentence was not illegal under section 1170.1, subdivision (e),
because at the time of defendant’s sentence, that statute allowed the trial
court to impose both weapon and great-bodily-injury enhancements for a
carjacking conviction. Defendant filed a
timely appeal.
title="">[3] (§ 1237, subd. [b].)
We have reviewed
the entire record and defendant’s contentions and conclude there are no issues
warranting further briefing.
The
trial court correctly determined that defendant had not been illegally
sentenced in 1997. Because defendant’s
sentence was final prior to Blakely,
he was not entitled to any relief under Apprendi
and its progeny. (In re Gomez, supra, 45
Cal.4th at p. 653.) The trial court
also properly found that defendant’s sentence was not illegal under section
1170, subdivision (e), as at the time of sentence, that statute expressly
allowed the imposition of both weapon and great-bodily-injury enhancements on a
carjacking conviction. (Stats. 1993, ch.
610, §§ 15, 15.98; Stats 1993, ch. 611, § § 17, 17.98 [amending
section 1170.1, subdivision (e), to include the crime of carjacking as of January 1,
1994].)
In
his supplemental letter brief,
defendant raises two issues. First,
defendant argues that during his 1996 jury trial, the trial court erred when it
admitted proof of “a constitutionally invalid†prior 1991 felony conviction,
which was used to enhance his sentence and to impeach his credibility during
his trial. According to defendant his
1991 conviction was “constitutionally invalid†because his appellate counsel in
that case filed a Wende brief on
direct appeal but never advised defendant of his rights to file a supplemental
brief or to waive counsel on appeal, which resulted in his being unrepresented
on that appeal by counsel. However,
defendant’s assertions alleging ineffective assistance of counsel, which were
not presented in the trial court, “cannot be resolved on the present
record.†(People v. Kelly (2006) 40 Cal.4th 106, 126.)
‘that “[if] the record on appeal sheds no light on why counsel acted or failed
to act in the manner challenged[,] . . . unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,†the claim on appeal must be rejected.’ [Citation.]
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.â€
(People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267) Second,
defendant argues that at sentencing, the trial court impermissibly relied on
“dual facts†in imposing aggravating terms for carjacking, assault, and the
related weapon enhancements. However,
the contention, even if true, would not render the sentence unauthorized and
therefore reviewable at any time. (
review, it could and should have been raised on direct appeal from the judgment
of conviction. (See In re Harris (1993) 5 Cal.4th 813, 841 [a claim that a court acted
in excess of its jurisdiction where such issue could have been raised on appeal
may be entertained only if a redetermination of the facts underlying the claim
is unnecessary].) To the extent the
issue was not preserved, then it was forfeited and precludes our review. (People
v. Scott (1994) 9 Cal.4th 331, 353-354.)
Thus,
we affirm the trial court’s order denying defendant’s motion to correct an
unauthorized sentence on the ground of illegality.
DISPOSITION
The order is
affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] All further unspecified statutory
references are to the Penal Code.
forth the first two arguments in separate point headings, the third argument
appears under the title “CONCLUSION.â€
