P. v. Johnson CA1/3

Filed 3/20/13 P. v. Johnson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A136223 v. LACEDRIC W. JOHNSON, (San Mateo County Super. Ct. No. SC036915A) Defendant and Appellant.

Defendant Lacedric W. Johnson appeals from an order, dated June 11, 2012, which denied his motion to correct an unauthorized sentence. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and asks us to independently review the record. Defendant has also submitted a supplemental letter brief asking us to consider two issues. We have examined the entire record in accordance with People v. Wende. For reasons set forth below, we agree with appellate counsel that no arguable issues exist on appeal. Accordingly, we affirm the order. FACTS A. Background After a jury trial in 1996, defendant was convicted of carjacking (Pen. Code, § 215, subd. (a)1) and assault with a firearm (§ 245, subd. (a)). As to each count, the jury found true that defendant used a firearm (§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), discharged a firearm at an occupied vehicle (former § 12022.5, subd. (b)(1)), and

1 All further unspecified statutory references are to the Penal Code.

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inflicted great bodily injury(§ 12022.7, subd. (a)) on the carjacking victim. After a bench trial, the trial court found true that defendant had suffered a prior strike conviction for first degree robbery (§§ 667, subd. (a), 1170.12, subd. (c)(1), and had served a prior prison term for a burglary conviction within the meaning of section 667.5, subdivision (b). Defendant was sentenced on April 28, 1997, to an aggregate term of 36 years, consisting of nine years (aggravated term) for carjacking, doubled for a prior strike conviction, plus consecutive terms of 10 years (aggravated term) for weapon enhancement (§ 12022.5, subd.(a)), five years for a prior serious felony conviction, and three years for great-bodily-injury enhancement. The court also imposed but stayed the sentences on the assault conviction and the related enhancements pursuant to section 654. Defendant filed an unsuccessful direct appeal and a consolidated petition for writ of habeas corpus, and review was denied by the Supreme Court. (People v. Johnson (Feb. 22, 1999, A079137, A082014) [nonpub. opn.], review denied June 3, 1999, S077790.) B. Current Proceeding In April 2012, defendant in propria persona filed this motion to correct an unauthorized sentence, challenging his sentence as illegal on three grounds: (1) the imposition of the upper term of 10 years for the weapon enhancement was in error as no aggravating factors were submitted to the jury nor proven beyond a reasonable doubt in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham); (2) at the time of sentencing, section 1170.1, subdivision (e), purportedly provided that for a carjacking conviction, the trial court could not impose both weapon and great-bodily-injury enhancements, but only the greater enhancement; and (3) while the trial court mentioned several aggravating factors for imposing the upper term on the carjacking conviction, the trial court failed to state its reasons for imposing an aggravated term on the weapon enhancement.2