Opinion
C090022
07-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHRISTOPHER WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18CF02884, 17CF06457)
Appointed counsel for defendant Joseph Christopher Wilson filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Butte County Case No. 17CF06457
On November 8, 2017, Paradise police officers responded to a suspicious vehicle call. The officers detained the car, driven by defendant, who was on searchable probation.
During a search of the vehicle, officers found a box of .22-caliber ammunition in the cupholder of the center console, and a loaded .22-caliber pistol under the front passenger seat. Over 190 grams of marijuana buds were also found in the center console. Defendant acknowledged that he had a prior felony and was prohibited from possessing ammunition. While defendant said he was aware of the ammunition in the console and had asked another passenger to get rid of it, he denied knowing the loaded gun was in the car under the front seat; he admitted, however, that he knew it was a .22-caliber pistol. Defendant claimed that the front passenger brought the pistol into the car, and said that it belonged to the passenger's mother. Although the gun was registered to the front passenger's mother, she reported that her daughter and defendant had stolen the gun from her home when she had been hospitalized; the mother had reported the theft to police.
Defendant was charged in Butte County case No. 17CF06457 with possession of ammunition. (Pen. Code, § 30305, subd. (a)(1).) The complaint further alleged that defendant had a prior strike. (§§ 667, subd. (d), 1170.12, subd. (b).)
Further undesignated statutory references are to the Penal Code.
In January 2018 defendant pleaded no contest to the possession of ammunition offense in exchange for dismissal of the strike prior and several unrelated misdemeanor matters with a Harvey waiver. On March 21, 2018, the trial court sentenced defendant to drug court and placed him on formal probation for five years with various terms and conditions. The court imposed a $300 restitution fine (§ 1202.4), a $300 probation revocation restitution fine, which was suspended unless probation was revoked (§ 1202.44), a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $350 drug court fee (§ 1203.1b). Defendant also entered a Johnson waiver (People v. Johnson (1978) 82 Cal.App.3d 183), waiving all custody credit from the date of arrest through sentencing, including any time he might spend in a residential treatment program.
The parties stipulated that the probation report constituted the factual basis for the plea.
On May 2, 2018, defendant admitted to violating probation by failing to participate in outpatient treatment; the court revoked and reinstated probation on all prior terms and conditions.
On May 11, 2018, probation alleged defendant had violated several Vehicle Code sections, failed to report to his probation officer, and failed to drug test. He also tested positive for methamphetamine and marijuana. He admitted that he failed to report to probation and failed to drug test and the remaining allegations regarding the Vehicle Code violations were dismissed with a Harvey waiver. It was also agreed that probation would not file a new notice of violation for the positive drug test, but that the court could consider the test with a Harvey waiver. The court accepted defendant's admissions, revoked probation, and reinstated him on probation on all prior terms and conditions.
On May 25, 2018, probation alleged that defendant failed to provide urine samples on two occasions and failed to report.
Butte County Case No. 18CF02884
That same day, May 25, defendant was stopped and detained by Paradise police who responded to a report of a prowler. Defendant possessed a concealed but accessible hunting knife in his waistband, a concealed knife hanging from a cord around his neck, and a capped syringe.
On May 29, 2018, defendant was charged with carrying a concealed dirk or dagger (§ 21310, count 1), and possession of an opium pipe and controlled substance smoking paraphernalia (Health & Saf. Code, § 11364, subd. (a), count 2). The complaint alleged defendant suffered a prior strike (§§ 667, subd. (d), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)).
At a plea hearing in June 2018, defendant pleaded no contest to the carrying a concealed dirk or dagger offense and admitted the strike prior in exchange for probation on the same terms and conditions as imposed in case No. 17CF06457 and dismissal of the drug offense and the four alleged prior prison term allegations. Defendant entered a Johnson waiver for all custody credit, including all time while in a residential treatment program.
Counsel stipulated to the factual basis for the plea as set forth by the prosecutor at the plea hearing.
At the same hearing, defendant also admitted the allegation in the May 25 notice of violation in case No. 17CF06457 that he failed to report to his probation officer as directed, and stipulated that the court could take judicial notice of his no contest plea in case No. 18CF02884 as a violation of the conditions of his probation in the earlier case. The court found defendant in violation and revoked probation in case No. 17CF06457. Defendant waived time for sentencing, and the court released him on his own recognizance on all terms and conditions of his drug court probation.
Additional Probation Violation in Case No. 17CF06457
On June 21, 2018, probation in case No. 17CF06457 alleged that defendant had failed to maintain his residence as approved, and that his whereabouts were unknown. He failed to appear in July 2018, and a bench warrant was issued. He was arrested in August 2018.
Global Disposition
In September 2018 the parties agreed to a global disposition. In case No. 18CF02884, defendant agreed to a stipulated upper term of three years, doubled to six years for the strike prior, for the carrying a dirk or dagger offense. In case No. 17CF06457, defendant stipulated to termination of probation and imposition of a consecutive eight-month sentence (one-third the midterm) for the possession of ammunition offense. Under the terms of the parties' global settlement, the People agreed not to file new felony charges or enhancements for failing to appear when he was released on his own recognizance in both cases and to dismiss four other unrelated matters, and defendant waived all time credits.
Defendant also admitted the June 21 notice of violation of probation in case No. 17CF06457; the court revoked and terminated probation.
For fees and fines, the court confirmed the prior $300 restitution fine in case No. 17CF06457, imposed the previously stayed $300 probation revocation fine, probation having now been revoked, and also confirmed a $30 court facilities assessment and a $40 court operations assessment. The court struck the $350 drug program fee. In case No. 18CF02884, the court imposed a $300 restitution fine, a $30 court facilities assessment, and a $40 court operations assessment. The court found no ability to pay public defender fees in either case.
Recall of Sentence and Reinstatement on Drug Court Probation
On October 10, 2018, the court recalled defendant's sentence under section 1170, subdivision (d)(1). Given the recall, the court granted the prosecutor's motion to strike the global plea agreement.
On November 7, 2018, the court reinstated defendant on drug court probation in both cases on all prior terms and conditions, and added an additional condition that defendant participate in and successfully complete the Salvation Army residential treatment program.
Termination of Probation in Both Cases and Sentencing
On December 12, 2018, probation filed a notice of probation violation alleging that on December 7 defendant failed to obey all laws; he was arrested while in possession of heroin and drug paraphernalia. Defendant's probation was revoked in both cases on that same date, and, based on new charges, he was found ineligible for drug court. In April 2019 he denied the probation violation and submitted the matter to the court based on the police reports. The court later found defendant violated the terms of his probation by failing to obey all laws.
On July 10, 2019, the trial court terminated probation in both cases, sentencing defendant in case No. 18CF02884 to the upper term of six years in state prison (three years, doubled for the strike prior), and imposed a consecutive eight months (one-third the midterm) in case No. 17CF06457. In each case, the court imposed a $300 restitution fine (§ 1202.4), a $300 parole revocation restitution fine (§ 1202.45), which was suspended unless parole was revoked, a $300 probation revocation restitution fine (§ 1202.44), probation having been revoked in both cases, a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).
The court awarded defendant 215 days of actual credit and 214 days of conduct credit for a total of 429 days in case No. 18CF02884. Given defendant's previous Johnson waivers, the court awarded defendant no credit in case No. 17CF06457. Defendant timely appealed.
Appellate counsel moved in the trial court to correct the original July 18, 2019 abstract of judgment to delete a $350 drug court fee and a registration requirement under Health and Safety Code section 11590. The court corrected the abstract of judgment as requested, and issued a new abstract of judgment on October 30, 2019. --------
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Renner, J.