People v. Johnson

Full title: THE PEOPLE, Plaintiff and Respondent, v. ELLIS EDWARD JOHNSON, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Jun 26, 2020

A158187 (Cal. Ct. App. Jun. 26, 2020)

Opinion

A158187

06-26-2020

THE PEOPLE, Plaintiff and Respondent, v. ELLIS EDWARD JOHNSON, Defendant and Appellant.

Fujisaki, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC016867A)

Defendant Ellis Edward Johnson appeals from an order denying his petition for writ of habeas corpus seeking to recall and vacate his conviction pursuant to Penal Code section 1170.95. His court-appointed counsel has filed a brief raising no issues, and she seeks our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The brief includes counsel's declaration stating she informed defendant of her intent to file a Wende brief on his behalf and that she would serve him a copy of the brief, and she apprised him of his right to file a supplemental brief within 30 days of the Wende brief filing. The proof of service accompanying the Wende brief indicates counsel served defendant with a copy of it. Defendant did not subsequently file a supplemental brief.

The order at issue denying defendant's petition for writ of habeas corpus is nonappealable. (Briggs v. Brown (2017) 3 Cal.5th 808, 836; In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) As such, this appeal must be dismissed. Anticipating this outcome, appointed counsel asks that we exercise our discretion in the interest of judicial economy to treat the instant appeal as a petition for writ of habeas corpus. In the interest of judicial economy, we exercise our discretion as requested. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4; People v. Garrett (1998) 67 Cal.App.4th 1419, 1423.) That said, our review of the matter leads us to conclude petitioner fails to state a prima facie case for habeas corpus relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)

DISPOSITION

The appeal is dismissed. The petition for writ of habeas corpus is denied.

/s/_________

Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Jackson, J.