People v. Johnson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD241729
- Trial judge
- Charles R. Gill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Richard D. Huffman, Sr., Gilbert Nares
Analysis
The trial court accepted Johnson's guilty pleas to multiple counts of robbery and conspiracy, dismissed two prior strikes, and sentenced him to 32 years and four months in prison. The Court of Appeal affirmed the judgment after a Wende review found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss counts 2, 4, 8, and 9“counsel mentions as possible but not arguable issues (1) whether the court erred by denying Johnson's motion to dismiss counts 2, 4, 8 and 9” | unclear | not reached | unsure The appellate court did not analyze this issue because appointed counsel deemed it not arguable and the court's independent review found no error. |
Imposition of upper term on principal count and consecutive terms on remaining counts“counsel mentions as possible but not arguable issues ... (2) whether the court abused its discretion by imposing the upper term on the principal count and consecutive terms on the remaining counts” | abuse of discretion | not reached | unsure The appellate court did not analyze this issue because appointed counsel deemed it not arguable and the court's independent review found no error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if counsel believes the appeal is frivolous.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel appeals. It accurately states that the court reviewed the record and found no reasonably arguable issues, which is the standard outcome for such cases.
How this analysis was made · dispute it
unusual dispositionAfter Cedric Johnson pleaded guilty to conspiracy to commit robbery, attempted robbery and eight robberies and admitted a prior prison term, a serious felony prior and three strikes, the San Diego Superior Court dismissed two strikes, denied his motion to dismiss counts 2, 4, 8 and 9, and sentenced him to 32 years four months, imposing a doubled upper term on the principal count and consecutive doubled one-third-middle terms on the remaining counts. On appeal appointed counsel filed a Wende/Anders brief identifying no arguable issues, Johnson filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Johnson's motion to dismiss counts 2, 4, 8 and 9“Johnson's motion to dismiss counts 2, 4, 8 and 9” | unclear | correct | unsure The opinion identifies this only as an Anders issue and states that independent Wende review disclosed no arguable error. It gives no description of the basis for the motion, the applicable standard, or the trial court's reasoning, and Johnson's guilty plea may independently limit review of pre-plea rulings. There is nothing in the opinion to show the ruling was wrong, but also no reasoning to evaluate. |
Imposition of the (doubled) upper term on the principal count (count 2) and consecutive terms on the remaining counts“discretion by imposing the upper term on the principal count and consecutive terms on the” | abuse of discretion | correct | unsure The court treated this as a sentencing-discretion issue and found it not arguable after Wende review. The facts recited—ten separate victims on different dates, a 78-year-old victim, physical injuries including a broken fibula, and an admitted prior prison term and strike history—would readily support an upper term and consecutive sentences, and the one-third-middle-term consecutive structure is lawful. But the opinion does not recite the trial court's stated reasons, so the conclusion cannot be verified from the opinion alone. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, while filing a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure: it recites the facts and procedural history, notes the two possible issues counsel flagged, confirms the defendant was invited to and did not file a supplemental brief, and states that independent review disclosed no arguable issues. It contains no substantive analysis of either flagged issue, which is permissible in a Wende affirmance but leaves the result unverifiable from the opinion itself.
How this analysis was made · dispute it
record incompleteOpinion
Filed 12/16/14 P. v. Johnson CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065163
Plaintiff and Respondent, v. (Super. Ct. No. SCD241729)
CEDRIC JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R.
Gill, Judge. Affirmed.
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Cedric Johnson pleaded guilty to conspiracy to commit robbery (Pen. Code,1 §§ 182, subd. (a)(1), 211; count 1), attempted robbery (§§ 664, 211; count 9) and eight counts of robbery (§ 211; counts 2-8, 10), including one of a victim 65 years of age or older (§ 667.9, subd. (a); count 2). Johnson admitted one prior prison term (§ 667.5, 1 All further statutory references are to the Penal Code. subd. (b)), one serious felony prior conviction (§ 667, subd. (a)) and three strikes (§ 667 subds. (b)-(i)). The court dismissed two of the strikes and sentenced Johnson to 32 years four months in prison: ten years (twice the upper term) on count 2 plus one year for the age enhancement; consecutive two-year terms (one-third the middle term, doubled) on counts 3-8 and 10; a consecutive term of one year four months (one-third the middle term, doubled) on count 9; a stayed (§ 654) term on count 1; one year for the prior prison term; and five years for the serious felony prior. Johnson appeals. We affirm.
BACKGROUND
Count 1: From May to June, 2011, Johnson conspired with two others to commit robberies.
Count 2: On May 19, 2011, 78-year-old Kazuko Ethington was walking toward a grocery store, carrying a lunch box. Someone came from behind and took the lunch box, cutting Ethington's finger, then ran away.
Count 3: On May 19, 2011, Lynne Lopo was walking toward a bank to make a deposit for her employer. Lopo was carrying a bank bag close to her chest. Someone hit her from behind, knocking her to the ground. After a struggle, the assailant took the bag and ran away. Lopo sustained bruises on her eye and shin, a scrape on her knee and a scratch on her face.
Count 4: On May 23, 2011, as Tomi Windle walked to a bank, an individual came up behind her, grabbed her purse and ran away. A security guard who witnessed the crime described it as a lady "getting attacked by this guy." The victim was upset and crying.
2 Count 5: On May 23, 2011, someone tried to take Rose Bulandi's purse. She held onto her purse and screamed. The assailant dragged her from the sidewalk in front of a bank through the parking lot. Bulandi let go of the purse, then the robber yanked it away from her and ran.
Count 6: On June 7, 2011, Elba Canizales, a restaurant owner, was walking toward a bank to make a deposit. On her left side, she carried a plastic bag containing the cash and checks to be deposited. On her right side, she carried a purse. From in back of Canizales, a person put his hand on her shoulder and pulled, attempting to get the purse, then the bag. Canizales fought back. She opened the bank door and threw the bag inside.
The assailant pushed Canizales to the floor, grabbed the bag and left.
Count 7: On June 16, 2011, Laurence Waymire was walking toward a bank to make a deposit for his employer. The money to be deposited was in four bags. Waymire carried the bags under his arm. When he was within five to ten feet of the bank's entrance, someone approached him from behind, knocked him to the ground, took the bags and ran. Waymire sustained a broken fibula and a sprained ankle.
Count 8: On June 17, 2011, Peter Ferioli was walking toward a bank to make a deposit. In his arms, he carried a bank bag containing rolled coins. A guy ran toward Ferioli, grabbed him in a bear hug and grabbed at the bag. Ferioli held onto the bag for a few seconds, then let go of the bag, thinking the assailant might have a knife. Ferioli received minor scratches. The robber ran away.
Count 9: On June 22, 2011, Ashley Arata was walking toward a bank to make a deposit for her employer. The money to be deposited was in a bank bag under Arata's 3 left armpit. A man walked toward her and lunged to reach the bag. Arata was scared.
She fell back, hitting the pavement, and screamed "get away from me." The man reached for the bag again and said "give me the money." Arata bit his arm. Two men came out of the bank yelling and chased the man away.
Count 10: On June 24, 2011, Catherine St. John was walking toward a bank to make a deposit for her employer. St. John was carrying a bank bag under her arm.
Someone tugged the bag from behind St. John and wrested it away from her. St. John turned around, screamed and chased the guy who had taken the bag. Bystanders joined in the chase. The police arrived and caught the robber.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible but not arguable issues (1) whether the court erred by denying Johnson's motion to dismiss counts 2, 4, 8 and 9 and (2) whether the court abused its discretion by imposing the upper term on the principal count and consecutive terms on the remaining counts.
We granted Johnson permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.
Johnson has been competently represented by counsel on this appeal.
4 DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12