Opinion
A147416
08-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN RAY ROWLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR174789)
Appellant Johnathan Ray Rowley appeals from his 32-month state prison sentence following his negotiated plea of no contest to one count of failing to register as a sex offender (Pen. Code, § 290, subd. (b)), and his admission to having a prior strike.
All further statutory references are to the Penal Code, unless otherwise indicated.
At the time the plea was entered in this case, appellant also entered a plea of no contest to a charge of vehicular manslaughter (§ 192, subd. (c)(2)), in case CR176443. No appeal has been filed in connection with that plea.
Appellant's counsel has filed an opening brief in which he asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436, specifically referencing the trial court's denial of his motion to suppress evidence made at the time of the preliminary hearing, and the denial of his motion to strike his prior strike under Romero. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No brief has been submitted by appellant himself.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We note that appellant has not obtained a certificate of probable cause, which is required by section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. However, a certificate is not required when the challenge is to a denied motion to suppress evidence, or the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. (People v. Hill (1974) 12 Cal.3d 731, 738, fn. 1, overruled on another ground in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5; People v. Ward (1967) 66 Cal.2d 571, 574.) Accordingly, we have reviewed the whole record pursuant to Wende, supra, 25 Cal.3d 436. Having done so, we conclude that there are no arguable issues on appeal.
Procedural and Material Factual Background of Case
A criminal complaint was filed by the Napa County District Attorney on March 17, 2015, charging appellant with one count of failing to register as a sex offender after an address change (§ 290, subd. (b)), and one count of failing to update his registration (§ 290.012, subd. (a)). The complaint included a special allegation that appellant had a prior strike for a violation of section 289, subdivision (a) (forcible sexual penetration with a foreign object), within the meaning of section 667, subdivision (b). Appellant was arraigned on August 17, at which time he entered a plea of not guilty to the charges.
All further dates are in the calendar year 2015 unless otherwise indicated.
Thereafter, appellant's appointed counsel filed a motion to suppress evidence pursuant to section 1538.5 on August 21. An opposition to the motion was filed by the prosecution on August 24.
On September 25 the matter was before the court for a preliminary examination. The court indicated that appellant's motion to suppress evidence would be heard and decided at the same time. After hearing evidence and arguments of counsel the court found that there was probable cause to conclude that appellant committed the charged crimes, and ordered that appellant be held to answer the complaint. The court also denied appellant's motion to suppress evidence.
In response to the court's holding order, the prosecution filed an information on September 28 realleging the same crimes and special allegation pertaining to appellant's prior strike true finding in 1998. At his felony arraignment on October 15, appellant entered a plea of not guilty to each of the charges and denied the special allegation.
As we note below, that finding was made in 1998, when appellant was alleged to have committed this crime as a juvenile.
On December 2, the parties reached a negotiated disposition under which appellant pleaded no contest to count 1 (§ 290, subd. (b), failure to register) and admitted the special allegation that he had suffered a prior strike true finding in juvenile court. Count 2 was dismissed on motion by the prosecution. Under the agreement the case would proceed to sentencing, but appellant could be sentenced to no more than 32 months in state prison (the low term of 16 months for count 1, doubled to 32 months because of the prior strike). A plea form was completed, initialed and signed by appellant prior to his plea being placed on the record. In signing the plea form, appellant acknowledged that he understood the constitutional rights he was waiving by entering into the negotiated plea and that the waiver of rights and plea was being made "freely and voluntarily."
The plea was put on the record in open court, at which time appellant confirmed that he signed and initialed the plea form, and that he was waiving his constitutional rights in entering the plea as explained in the plea form. Sentencing was scheduled for December 30, and the case was referred to the probation department for the preparation of a presentence report.
Prior to sentencing, appellant filed a written motion to dismiss his prior strike conviction, a 1998 conviction for forcible sexual penetration with a foreign object (§ 289, subd. (a)), under People v. Superior Court (Romero), supra, 13 Cal.4th 497. Appellant's arguments in favor of striking the prior violent conviction included that his current failure to register was the result of inadvertence, the prior strike occurred in 1998 when appellant was 17 years old, his record since his release from the California Youth Authority (CYA) for that crime had been relatively good with no felony convictions, and he had the support of his family and the community.
The prosecution filed a written opposition to the motion. The opposition argued that the strike prior was serious, and appellant has had a number of misdemeanor convictions since his release from CYA including a prior misdemeanor for failing to register as a sex offender in 2011, a 2012 conviction for forgery (§ 470, subd. (a)), and vehicle theft (§ 10851, subd. (a)) one month later.
At the sentencing hearing, this conviction was determined to have been a misdemeanor. --------
A presentence report was filed by the probation department on December 30. The report did not address whether appellant's prior strike allegation should be stricken. However, the report acknowledged that he did not have an extensive criminal record and remained free from criminal behavior for five years (2006-2011). On the other hand, of concern to the department was appellant's use of drugs and lack of a consistent employment history. Moreover, the report noted that appellant scored "very high risk" for recidivism on the "LS/CMI" scale and low/moderate risk on the "STATIC 99R" scale.
At the sentencing hearing on December 30, after hearing the arguments of counsel, the trial court denied the motion to dismiss the prior strike, although in reaching this conclusion the court conceded it was a "difficult call."
Conclusions Based Upon Independent Record Review
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.
There was no error in the trial court's decision to deny appellant's motion to suppress evidence finding no violation of appellant's Fourth Amendment rights. We also discern no error in the plea disposition or in sentencing. The sentence appellant received, and the restitution fines, penalties, and conditions imposed, were supported by the law and facts. There was no error in the trial court's decision to deny appellant's motion to dismiss the prior strike conviction at the time of sentencing. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.