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People v. Johnson

California Court of Appeals, Second District, Eighth Division
Mar 18, 2008
No. B196956 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AARON JOHNSON, Defendant and Appellant. B196956 California Court of Appeal, Second District, Eighth Division March 18, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles F. Palmer, Judge, Los Angeles County Super. Ct. No. BA306154

Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

FLIER, J.

Appellant Joseph Aaron Johnson was found guilty of one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) (the drug sale case). That crime occurred on July 18, 2006. The information also alleged that (1) he had one prior strike conviction, a conviction for robbery on March 9, 2006 (the robbery case), and (2) at the time of the drug sale case, he had been released from custody on bail or on his own recognizance on the robbery case. (Pen. Code, § 12022.1.) The court found those allegations to be true. Appellant was sentenced to 10 years in prison based on the four-year midterm for the crime, doubled for one strike, plus two years for the section 12022.1 enhancement. This appeal followed.

Subsequent statutory references are to the Penal Code unless otherwise stated.

Appellant contends: (1) The case must be remanded so that the trial court can exercise its discretion on whether to strike the prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (2) If the case is remanded, he cannot be sentenced consecutively on the robbery case and on this case. (3) This court should review the transcript of the sealed in camera hearing that was held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine if the scope of discovery was improperly limited.

We requested supplemental briefing on this question: “Since the defendant had not been sentenced on the robbery case at the time he sold the rock of cocaine, did the robbery qualify as a prior strike conviction, for the purpose of the ‘Three Strikes’ law?”

In the supplemental briefing, in addition to addressing the question we asked, appellant raises a new issue, which is that the case should be remanded so that the trial court can exercise its discretion on striking the enhancement. Respondent counters that the new issue was improperly added in the supplemental briefing.

Having reviewed all the briefing, we find no error and affirm.

FACTS

On July 18, 2006, an undercover officer watched through binoculars as appellant sold a rock of cocaine to another man, James Mintz. Mintz put the drug into a glass pipe. The officer alerted two other undercover officers. They quickly arrested appellant and Mintz. They seized the glass pipe and retrieved from the sidewalk a plastic bag that appellant had tossed as they approached. There was $30 to $40 worth of rock cocaine in the bag. Appellant had $21 in his pocket.

DISCUSSION

1. The Romero Issue

A. The Record

The probation report showed that appellant has two previous felonies. One was the robbery case earlier in 2006, on which sentencing was pending when appellant committed the crime in this case. The facts of that robbery were that appellant ran out of a business with the plastic tip box and swung a closed fist at an employee who chased him outside. The other felony was a guilty plea in 2000 for purchasing a person for the purpose of prostitution or placing a person, for immoral purposes, in any house or place against his or her will (§ 266e). That crime involved appellant’s directing 15-year-old girls in the Hollywood area to perform sex acts for money. He was sentenced to 365 days in jail and five years of formal probation for that offense. His record also included two less serious offenses.

At the sentencing hearing, the trial court stated that it had read the probation report. The prosecutor sought a 10-year prison sentence, derived from the midterm for drug sales, doubled for one strike, plus two years for the enhancement. Defense counsel maintained that the low base term was appropriate due to two circumstances in mitigation: the small amount of drugs and money that were involved, and the willingness of Mintz to participate in the drug transaction. The trial court imposed the sentence the prosecutor requested. Appellant then personally asked for mercy. He explained that he was essentially a recovering drug addict, had never hurt anyone, would not be able to watch his three young children grow up while he was in prison, and did not know how to survive there. He complained that the sentence, including reduced credits due to the prior strike, was too long for selling one rock of cocaine in comparison to other crimes. The judge responded: “Well, sir, I’ve heard what you said; but, unfortunately, having weighed the factors that are provided in the Code, I have come to the conclusion that I have come to with respect to what the law requires me to do.”

B. Analysis

At the sentencing hearing, defense counsel argued for the low base term, but he did not request striking of the prior strike conviction under Romero, supra, 13 Cal.4th 497. Appellant contends that the trial court had a sua sponte duty to consider that possibility and should have exercised its discretion to strike the prior conviction. (See People v. Williams (1998) 17 Cal.4th 148, 161.) We find that the issue was waived, as “any failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal.” (People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony).)

That conclusion does not foreclose the possibility of a petition for writ of habeas corpus alleging ineffective assistance of counsel. We express no opinion on whether such a petition should be filed and, if it is filed, on the merits of it.

2. The Two Sentences Are Already Concurrent

We previously granted judicial notice of the minute order of the sentencing hearing and the abstract of judgment in the robbery case. They show that appellant was sentenced to the midterm of three years in prison on that case, a month after he was sentenced on this case. Appellant argues that he cannot be sentenced to consecutive sentences on the two cases, in the event that we remand under Romero, supra, 13 Cal.4th 497. We do not analyze the issue in detail, both because we have found no basis for a remand, and because the sentence on the robbery case was specifically ordered to be concurrent to any other sentence.

3. The Pitchess Issue

At the in camera hearing pursuant to Pitchess, supra, 11 Cal.3d 531, the judge ordered discovery of all the prior complaints that the custodian of records mentioned, except for one that was clearly irrelevant. No abuse of discretion occurred. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)

4. The Robbery Conviction Qualified as a Strike

The statutory penalty for the drug sale offense is three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).) The trial court selected the four-year midterm, doubled the midterm for one strike, and added two years for the section 12022.1 enhancement, as appellant had been released on his own recognizance on the robbery case, pending sentencing, when he committed the drug sale.

Before finding that the robbery conviction qualified as a strike and met the requisite elements of section 12022.1, the trial court reviewed the superior court file in the robbery case. It showed that appellant entered an open plea to robbery on March 9, 2006, was released on his own recognizance on June 19, 2006, and committed the drug sale one month later.

We asked for supplemental briefing on whether the robbery qualified as a strike because appellant had not been sentenced on the robbery case when he committed the drug sale. We conclude that it does so qualify because for the purpose of the Three Strikes law, the defendant has a prior conviction at the point when guilt is established either by plea or verdict. (People v. Laino (2004) 32 Cal.4th 878, 896.)

5. The Enhancement

In the supplemental briefing, appellant also requests a remand so that the trial court can exercise its discretion on whether to strike the section 12022.1 enhancement. Respondent answers that appellant cannot raise a new issue by way of supplemental briefing. Respondent further requests leave to file additional briefing if we do address the new issue. We find that any further briefing is unnecessary because we cannot address this issue on appeal, as it was not raised below. (See Carmony, supra, 33 Cal.4th at pp. 375-376.)

Our observations in the previous footnote also apply to this issue.

DISPOSITION

The judgment is affirmed.

We concur: COOPER, P. J., RUBIN, J.


Summaries of

People v. Johnson

California Court of Appeals, Second District, Eighth Division
Mar 18, 2008
No. B196956 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AARON JOHNSON, Defendant…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Mar 18, 2008

Citations

No. B196956 (Cal. Ct. App. Mar. 18, 2008)