Filed 9/18/20 P. v. Johnson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A157468
v.
(Sonoma County
PAUL SAMUEL JOHNSON, Super. Ct. No. SCR722383)
Defendant and Appellant.
MEMORANDUM OPINION1
On a plea of no contest, Paul Samuel Johnson was convicted on two
felony counts: first, assault by means likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4)), and second, criminal threats (Pen. Code,
§ 422, subd. (a)). He was sentenced to a prison term of five years four
months, subject to earned presentence and conduct credits.
Following his sentencing, Johnson submitted to the court a proposed
notice of appeal along with a request for a certificate of probable cause. In
his proposed notice of appeal, he indicated he wished to appeal based on
postplea matters, i.e., sentencing. At the same time, he stated that he was
challenging his plea because the jail records indicated he pled to Penal Code
We resolve this case by memorandum opinion because it raises no
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substantial issue of fact or law. (California Standards of Judicial
Administration, § 8.1.)
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section 245(a)(4), and he did not plead to that, but rather: “I took a plea deal
for 1 non-violent strike for a ‘PC 422’ and a 2nd ‘Felony PC 242’ also non-
violent and not a strike . . . .”
Johnson also filed a motion to correct “sentencing errors” and a petition
for writ of habeas corpus in the case in which he was sentenced
(No. SCR722383) and two others (Nos. SCR714403 and SCR726327).
Consistent with the issue raised in his proposed notice of appeal, Johnson’s
habeas petition alleged that his sentence in this action (No. SCR722383) was
illegal because it was based on charges to which he had not pled. More
specifically, he stated that he entered pleas to violations of Penal Code
sections 422 and 242: “I plead to a PC 242 felony non-violent but probation &
the jail have it as a PC 245(a)(4) violent strike, this is an illegal sentence and
error!”
In court proceedings shortly after seeking a certificate of probable
cause to appeal, moving for correction of sentencing errors, and filing his
petition for habeas corpus, Johnson and his counsel made the following
statements on the record in postsentencing proceedings concerning the
calculation of his sentencing credits: “DEFENSE COUNSEL: Mr. Johnson is
requesting to apologize to the court. He did file some motions with the court
as far as whether or not he understood what he pled to. I’ve discussed that
with him and he would like to withdraw—I don’t know if the court has
received those. [¶] THE DEFENDANT: I filed a motion to correct sentencing
error because I thought it was a 242 that I pled to, but it was a 245. I didn’t
understand that, I thought it was a third strike. I freaked out and filed some
motions. I understand now. The jail told me it is a third strike. I got some
bad information. Now I understand that it is not, I don’t want to proceed
with the sentencing error and the habeas corpus that I filed.”
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Later that day, the court noted in a minute order that Johnson had
submitted a request for certificate of probable cause, but withdrew that
request during court proceedings that day; thus, the court noted, the request
for certificate of probable cause was denied as moot. A few days later, the
court filed an order denying the petition for writ of habeas corpus. Johnson
then formally filed his notice of appeal, with the court’s denial of a certificate
of probable cause.
After the judgment of conviction was filed, the California Department
of Corrections and Rehabilitation (CDCR) wrote a letter to the court raising a
possible error in the judgment. Specifically, CDCR wrote: “The Abstract of
Judgment and the Minute Order reflect Count 3, PC 422(a), Unlawful
Threatening, with one-third the middle term of 16 months imposed. The
middle term for this offense is 2 years; therefore, one-third the middle term is
8 months.” (Italics and underline omitted.)
Stating concerns about an illegal sentence, the CDCR requested the
court to consider whether a correction may be required. Thereafter, the court
entered a minute order noting the CDCR letter was filed, and in response, an
amended abstract would be prepared to reflect a strike prior. That same
date, the court filed an amended abstract of judgment restating the base term
on the Penal Code section 245, subdivision (a)(4) count as being the low term
doubled (four years), and the subordinate term on the Penal Code section
422, subdivision (a) count being the middle term doubled, consecutive (one
year four months). In the amended abstract, the court noted that the
sentence was imposed “per PC 667(b)–(i) or PC 1170.12 (strike prior).”
Johnson’s appointed appellate counsel has filed a brief asking this court
to conduct an independent review of the record to determine if there are
arguable appellate issues pursuant to People v. Wende (1979) 25 Cal.3d 436
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(Wende). The Wende brief filed by Johnson’s counsel does not draw our
attention to any issues under Anders v. California (1967) 386 U.S. 738, 744,
but asks under People v. Kelly (2006) 40 Cal.4th 106, 109–110, 113, that we
address claims raised in any supplemental brief. Johnson filed a
supplemental brief, together with exhibits. The supplemental brief attempts
to raises a variety of issues concerning the conditions of Johnson’s
confinement.
Based on our review of the entire record as well as Johnson’s
supplemental brief, we conclude there are no meritorious issues to be argued
on appeal.
DISPOSITION
In the absence of a certificate of probable cause to appeal, we are
without jurisdiction to entertain an appeal of Johnson’s judgment of
conviction or the plea on which his conviction is based. (Pen. Code, § 1237.5.)
To the extent Johnson perceives he may have cause to pursue issues
concerning the conditions of his confinement, such issues are not properly
cognizable in this appeal. Having found no arguable basis to appeal in
connection with “issues regarding proceedings held subsequent to the plea for
the purpose of determining the degree of the crime and the penalty to be
imposed” (People v. Jones (1995) 10 Cal.4th 1102, 1106), Johnson’s sentence
is affirmed. The sentence conforms with the law and with Johnson’s plea.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
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