People v. Johnson CA3

Filed 3/23/16 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C078869

Plaintiff and Respondent, (Super. Ct. No. SF110193A)

v.

MARQUE JOHNSON,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). An indictment returned by grand jury on November 20, 2008, in San Joaquin County Superior Court alleged that on or about September 26, 2008, defendant Marque Johnson took personal property from Dolores Prieto, an employee of U.S. Bank, by means of force or fear (Pen. Code, § 211),1 and that defendant personally used a handgun

1 Undesignated statutory references are to the Penal Code.

1

in the commission of the offense (§ 12022.53, subd. (b)). The indictment further alleged that defendant had suffered two serious prior felony convictions (§ 667, subd. (a)), one prior strike (§§ 667, subds. (b)-(i), 1170.12), and one prior prison term (§ 667.5, subd. (b)). At the time of the grand jury proceedings, defendant was not in custody. The trial court issued an arrest warrant on November 21, 2008. On October 30, 2013, defendant was arraigned on the outstanding charges and entered a plea of not guilty. On January 21, 2015, defendant pleaded no contest to second degree robbery and admitted personal use of a firearm; the remaining allegations were stricken pursuant to the plea agreement. The parties stipulated that the grand jury transcript provided the factual basis for the plea. The grand jury transcript showed that, on September 26, 2008, defendant and another man, both displaying guns, robbed a U.S. Bank branch inside a Safeway in San Joaquin County, California. After obtaining the sum of $4,225 ($2,180 from the cash drawer of branch manager Dolores Prieto & $2,045 from the cash drawer of Assistant Branch Manager Natalie Ryan), the two men fled the scene. They got into a car in the parking lot, driven by a female. The car had been rented the previous day by a female and was returned after the robbery. The female was later identified as defendant’s wife. Defendant waived referral to probation and agreed to be sentenced immediately. Pursuant to the plea agreement, the trial court sentenced defendant to 12 years in state prison, consisting of two years (the low term) for the offense, plus 10 years for the firearm enhancement. The court awarded defendant 518 days of presentence custody credit (450 actual days & 68 conduct days). The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) with a $30 surcharge, a $300 suspended parole revocation restitution fine (§ 1202.45), a $38 theft related fee (§ 1202.5), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).