Opinion
E072987
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JOHNSON, Defendant and Appellant.
Christopher Johnson, in pro. per., and Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1900373) OPINION APPEAL from the Superior Court of Riverside County. Godofredo Magno, Judge. Affirmed. Christopher Johnson, in pro. per., and Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Christopher Johnson was charged by amended complaint with attempted premeditated murder (Pen. Code, §§ 667, 187, counts 1 & 2) and assault with a firearm (§ 245, subd. (a)(2), counts 3 & 4). The complaint further alleged that, in the commission of count 1, defendant personally and intentionally discharged a firearm and proximately caused great bodily injury (GBI) and death to a person other than an accomplice. (§§ 12022.53, subds. (d) & (e), 1192.7, subd. (c)(8).) It also alleged that defendant personally inflicted GBI. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) As to count 2, the complaint alleged that defendant personally and intentionally discharged a firearm. (§§ 12022.53, subds. (c) & (e), 1192.7, subd. (c)(8).) As to count 3, the complaint alleged that defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and personally inflicted GBI (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). As to count 4, the complaint alleged that defendant personally used a firearm. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) The complaint further alleged that defendant committed the offenses for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C), as to counts 1, 2, and 3, and within the meaning of section 186.22, subdivision (b)(1)(B), as to count 4. It also alleged he had a prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All further statutory references will be to the Penal Code, unless otherwise noted.
The People moved to amend count 3 to a violation of section 245, subdivision (b), and the attendant gang enhancement to section 186.22, subdivision (b)(1)(B), and the gang enhancement on count 4 to section 186.22, subdivision (b)(1)(A). Defendant pled guilty to the amended counts and allegations in counts 3 and 4, and he admitted the prior serious felony conviction and prior strike conviction. In exchange, the parties agreed defendant would receive 29 years in state prison and the dismissal of the remaining charges. As part of the plea, defendant waived any right to appeal. The parties stipulated to the police report as the factual basis for the plea, and defendant agreed that any judge could sentence him (Arbuckle waiver). The court set a date for the sentencing hearing. Defendant filed a motion to withdraw his plea, in propria persona, claiming that he pled guilty because his attorney misled him into making a poor decision to take the deal.
People v. Arbuckle (1978) 22 Cal.3d 749.
The parties later appeared for the sentencing hearing. At the outset, the court noted that defendant was represented by counsel, so it could not allow his motion filed in propria person, since it would be considered an ex parte communication. The court stated it would only read motions filed by his counsel. The court proceeded to hear a Marsden motion by defendant, who argued that he did not feel comfortable with his attorney. He also claimed his attorney "fooled" him into pleading guilty. The court denied the motion. The court went on to sentence defendant, and defense counsel indicated that defendant was objecting to being sentenced by the judge, despite the Arbuckle waiver. The court proceeded over the objection and sentenced him to the agreed-upon term of 29 years in state prison. It also pronounced that "all fines and fees are imposed," without specifying the fines and fees. Counsel did not object. At the People's request, the court confirmed that it declined defendant's Marsden motion, and it dismissed the remaining counts.
People v. Marsden (1970) 2 Cal.3d 118.
The minute order and abstract of judgment specify the fines and fees and their statutory bases. --------
Defendant filed a timely appeal. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged with and admitted that, on or about May 3, 2017, he committed the crimes of assault with a firearm, a felony (§ 245, subd. (a)(2), (3), counts 3 & 4).
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether defendant's guilty plea was constitutionally valid; (2) whether his waiver of his right to appeal the judgment and conviction, which was part of the plea agreement, was valid; (3) whether the court erred in denying his Marsden motion; (4) whether the court abused its discretion in denying his motion to withdraw his guilty plea prior to sentencing; (5) whether there was a sufficient factual basis for the plea; (6) whether he should have been sentenced by the judge who took the plea; (7) whether the court erred in failing to consider his ability to pay when imposing the fines and fees; and (8) whether he received ineffective assistance of counsel (IAC). Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. In a handwritten letter, he argues that he received IAC, since he was not correctly informed of the charges before agreeing to the plea bargain, and his attorney misled him into believing "this was a 'good deal' " and that he would "basically do a turn around do [sic] to [him] being eligible for Prop 57." Defendant claims he is now facing a much longer sentence than the one his counsel explained to him, and that he has been left with an "illegal sentence" and a nickel prior that was stayed instead of stricken. Defendant also asks this court to rule on his propria persona motion to withdraw his plea and states that he simply wants to take his plea back and be granted a speedy trial. He further asserts that the trial court denied his Marsden motion, but raises no issue concerning the denial. Defendant's claims fail.
Defendant has failed to establish that his counsel was ineffective. " 'To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]' " (In re Roberts (2003) 29 Cal.4th 726, 744-745.) "If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel's performance was deficient." (In re Crew (2011) 52 Cal.4th 126, 150.)
Defendant has failed to demonstrate that his attorney misinformed him about the charges. To the contrary, defendant expressly informed the trial court that his counsel thoroughly explained the plea agreement with him and that he understood it. He also answered in the affirmative at the plea hearing, when the court asked if he signed the plea agreement to let the court know he understood his rights and wished to waive them to plead to the counts set forth in the agreement. Furthermore, defendant has not demonstrated prejudice. Before he entered his plea, the court explained that he was looking at a potential sentence of 42 years four months; however, under the negotiated plea agreement, he would serve 29 years instead, which defendant acknowledged he understood. Moreover, he has failed to explain how his sentence was "illegal." We note there is no evidence his counsel mentioned Proposition 57 to him. Moreover, Proposition 57, which concerns juveniles being tried in adult court, was not applicable here since defendant was not a juvenile. (See People v. Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 1000.) We further note that defendant's motion to withdraw his plea was essentially based on the same failed claim of IAC he makes on appeal.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues. (See People v. Sharret (2011) 191 Cal.App.4th 859, 864 [trial courts frequently orally impose penalties and surcharges by a shorthand reference to "penalty assessments," and the responsibility then falls to the clerk to specify the penalties in the minutes and abstract]; see also, People v. McCullough (2013) 56 Cal.4th 589, 598 ["a defendant who does nothing to put at issue the propriety of imposition of a booking fee forfeits the right to challenge the sufficiency of the evidence to support imposition of the booking fee on appeal"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.