Opinion
F086026
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE JOHNSON, Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F21909687 Francine Zepeda, Judge.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
STATEMENT OF APPEALABILITY
This appeal is from a final judgment and sentencing following a no contest plea which disposed of all issues between the parties. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).)
STATEMENT OF THE CASE
On October 6, 2022, a preliminary hearing was held in Department 61 of the Fresno County Superior Court after which Johnson was held to answer on all charges.
An October 13, 2022, a three-count information charged Johnson with driving with a .08 blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 1), a DUI causing injury (Veh. Code, § 23153, subd. (a); count 2), and leaving the scene of an accident - death or permanent serious injury (Veh. Code, § 20001, subd. (b)(2); count 3). As to counts 1 and 2, there were two great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)), and an enhancement for having 15 percent or higher blood alcohol (Veh. Code, § 23578).
At a December 7, 2022, hearing, Johnson pleaded no contest to counts 1 and 3, admitted a blood alcohol level of .16, and admitted the enhancements to count 1. The remaining counts and allegations were dismissed. Johnson acknowledged that he had signed a Felony Advisement Waiver of Rights Change of Plea form. The court advised him of, and Johnson acknowledged his understanding of and intention to give up, his right to a speedy trial, right to confront witnesses against him, right to not incriminate himself, right to present evidence at no cost to himself, for an agreed maximum sentence of nine years, eight months.
The court also advised Johnson, who said he understood, that "you could get fines, fees restitution. It would be a felony strike for future purposes." The defense stated there was a factual basis for the plea, and the People stipulated to this factual basis. Johnson further admitted to three aggravating factors: (1) the act disclosed a high degree of callousness because he was unsafe in driving while under the influence, (2) the victims were particularly vulnerable, and (3) the crime involved damage of a great monetary value. Johnson was then remanded into custody.
On February 3, 2023, a sentencing hearing was held. Before hearing statements, the court "address[ed] the matter of a restitution hearing." The court stated that it did not intend to address the matter of restitution and would reserve that question since Johnson was entitled to a hearing on the matter. The court noted that documents from one of the victims' restitution requests would be put under seal because they contained medical information.
The court stated it had received the probation report, a sentencing memorandum from Johnson, and letters from five individuals, all of which the court had reviewed and considered. The court then heard statements from the victims, Johnson's mother and father, and Johnson.
Defense counsel agreed with the district attorney that Johnson was not entitled to custody credits during the time he was wearing a GPS monitor but was not on home detention. The court denied probation, and sentenced Johnson to the mitigated term of 16 months in state prison on count 1, with two three-year great bodily injury enhancements, for a total of seven years four months, with 60 actual days and 9 local conduct credits.
On February 1, 2022, at Johnson's arraignment, the court had ordered Johnson released on pre-trial release, ordered a Global Positioning System monitor through the SCRAM program, and ordered Johnson to enroll, by February 3, 2022, in the SCRAM program.
With regard to restitution, the court stated it "will waive the restitution fines because I think I would rather have him pay restitution to the victims of the offense, so the restitution fine which doesn't go to the victims will be waived. I will also waive the second restitution fine in compliance with Penal Code section 1202.45. In compliance with Penal Code section 1202.4, sub[division] (f), Mr. Johnson is to make restitution to both victims in this matter . . .. Restitution will be reserved."
Johnson filed a timely notice of appeal on March 28, 2023. He requested a certificate of probable cause on the ground that he "was represented by private counsel during the entry of his plea and sentencing. Client's change of plea form does not contain certain advisements regarding collateral consequences that result from his entry of plea." On March 28, 2023, this request was denied.
STATEMENT OF FACTS
An information filed on October 13, 2022, alleges that on or about August 30, 2021, in Fresno County, Johnson "did unlawfully while having .08 percent and more, by weight, of alcohol in his/her blood, drive a vehicle and in so driving . . . proximately caused bodily injury to [M.O.]" and I.E. In so doing, Johnson inflicted great bodily injury on M.O. and I.E. Johnson also left the scene of the accident.
APPELLATE COURT REVIEW
Johnson's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Johnson was advised he could file his own brief with this court. By letter on August 22, 2023, we invited Johnson to submit additional briefing. To date, he has not done so.
Penal Code section 1237.5 states that no appeal may be taken from a plea of guilty or no contest without first filing a written statement "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" and the trial court has executed and filed a certificate of probable cause for such appeal. (§ 1237.5, subds. (a) &(b); see also Cal. Rules of Court, rule 8.304(b)(1)(A).) Here, the trial court denied Johnson's request for a certificate of probable cause. A trial court's denial of an application for a certificate of probable cause must be reviewed by a petition for writ of mandate. (People v. Johnson (2009) 47 Cal.4th 668, 676.) Johnson has not petitioned for nor obtained such writ relief, and thus issues concerning the validity of his plea are not cognizable.
With no certificate of probable cause, our review is limited "to issues that do not require a certificate of probable cause." (Cal. Rules of Court, rule 8.304(b)(3); see rule 8.304(b)(2) [listing the issues that do not require certificate of probable cause].)
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Johnson.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.