People v. Johnson CA1/1

Filed 1/28/14 P. v. Johnson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139871 v. MICHAEL A. JOHNSON, (Lake County Super. Ct. Nos. CR931131 CR931546 Defendant and Appellant. & CR931591)

Defendant Michael A. Johnson appeals following judgments entered pursuant to no contest pleas entered to resolve these three referenced cases. Specifically, in case No. CR931131, defendant pleaded no contest to count 2, possession of tear gas (pepper spray) (Pen. Code, § 22900) and count 1 was dismissed. In case No. CR931546, he pleaded no contest to counts 1 and 3, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), respectively, and admitted one prior prison term (Pen. Code, § 667.5, subd. (b)); all other allegations were dismissed.1 The trial court sentenced him to a total of four years (three- year upper term for methamphetamine possession and one year for the prior, and a concurrent 180 days for the suspended license and concurrent year on the tear gas possession), to be completed in local custody pursuant to Penal Code section 1170. In

1 The additional allegations included that defendant committed the offense while out on bail in case No. CR931131 and three other prior prison terms (Pen. Code, § 667.5, subd. (b)). 1

case No. CR931591, the trial court revoked community supervision and imposed 180 days, concurrently with the other sentences. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, and has done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment. DISCUSSION Penal Code section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under Penal Code section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Since defendant’s application for a certificate of probable cause was denied, he is not able to challenge the validity of his plea or any other matter that preceded its entry, except as permitted under the exceptions. (See People v. Cole (2001) 88 Cal.App.4th 850, 868.) Defendant made suppression motions in the pepper spray and methamphetamine cases. Officer Bradlee Middleton testified in the pepper spray case. He observed defendant driving a car with expired registration tags, then pull off the street into a lot, exit the vehicle and quickly walk away. Middleton stopped his car, exited and called out for defendant to stop and return to talk to the officer. The officer saw defendant toss away a black object near the car as he walked toward the officer. Not knowing what the object was and seeing others in the car, the officer, who was alone, detained defendant in handcuffs for safety purposes and ran a records check, which showed defendant was on post release community supervision, subject to a search. He then searched defendant and