Opinion
G037488
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. BILLY JOE JOHNSON, Defendant and Appellant.
Cannon & Harris, Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
We appointed counsel to represent defendant Billy Joe Johnson on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised the court he found no issues to argue on his behalf. We provided defendant 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from him.
We have examined the record pursuant to People v. Wende (1979) 25 Cal.3d 436. An information charged Johnson with an April 2004 murder (Pen. Code, § 187; all statutory citations to this code unless noted), with special circumstances of lying in wait (§ 190.2, subd. (a))(15)) and furthering the activities of a criminal street gang (§ 190.2, subd. (a)(22)). It also charged him with dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), and active gang participation (§ 186.22, subd. (a)). The information pled gang enhancements (§ 186.22, subd. (b)) and alleged defendant had suffered three violent/serious felony convictions within the meaning of the Three Strikes law (§ 667, subd. (d), (e)(2)(A); § 1170.12, subd. (b), (c)(2)(A)) and section 667, subdivision (a), and had served a prison term (§ 667.5, subd. (b)).
On June 30, 2006, defendant pleaded guilty to the charged counts, including second degree murder, and admitted the gang enhancements and the priors under the Three Strikes law. In open court, defendant acknowledged discussing the charges and consequences of pleading guilty with his lawyer, and that he had read, initialed and signed an "Advisement and Waiver of Rights for a Felony Guilty Plea" form. Among other things, the form provided defendant potentially faced 95 years to life in prison if he were convicted at trial, but the court promised it would impose a-45-year-to-life sentence if defendant pleaded guilty. The prosecutor agreed to dismiss three separate pending cases and to strike the remaining allegations and enhancements. At the plea hearing, the court asked, "Aside from the promise the court and the District Attorney is making, that you receive no more than 45 to life, has anyone else made any other promises to you to get you to plead guilty here today?" Defendant said, "No."
Defendant also initialed next to the provision waiving the right "to appeal from any and all decisions and orders made in my case . . . . I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement." At the plea hearing, defendant acknowledged he was "giving up any and all appellate rights in connection with this plea so that [he would not] be able to appeal from this plea."
The court imposed a 45-year-to-life sentence for murder (15 years to life tripled to 45 years to life under the Three Strikes law) and concurrent 25-year-to-life terms for the other two counts. The court dismissed the remaining allegations and enhancements upon the prosecutions motion.
Defendant noticed an appeal from the guilty plea and "his sentencing order entered as a result of an unkept promise to defendant from the District Attorneys office." Defendant asserted in a request for certificate of probable cause that he did not receive the benefit of his plea bargain because codefendants were denied certain plea deals. Defendant wanted "specific performance of my plea agreement."
Defendant received a sentence that was legally authorized and within the terms of his plea agreement and nothing in the record reflects the prosecutor promised defendant anything other than what he received. Also, defendant expressly waived his right to appeal, which precludes further consideration of the matter.
The appeal is dismissed.
We Concur:
OLEARY, Acting P. J.
IKOLA, J.