People v. Johnson CA3

Filed 4/18/23 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097164

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-2016-0006117) v.

DOMINICK DEPAUL JOHNSON,

Defendant and Appellant.

Appointed counsel for defendant Dominick Depaul Johnson has asked this court to review the record and determine whether there are any arguable issues on appeal from the denial of his motion for modification of his sentence pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). (People v. Wende (1979) 25 Cal.3d 436.) Because defendant has appealed from a nonappealable order, we will dismiss the appeal.

1

FACTUAL AND PROCEDURAL BACKGROUND At two different convenience stores, defendant stole money and lottery tickets by force from two separate victims. The complaint charged defendant with two counts of robbery and two counts of battery with serious bodily injury. (Pen. Code, §§ 211, 243, subd. (d).)1 It also alleged defendant had two prior serious felony convictions. (§§ 1170.12, subd. (b), 667, subds. (a), (d).) In September 2016, defendant pleaded guilty to two counts of robbery and admitted two prior serious felony convictions. The trial court granted the prosecution’s motion to dismiss the remaining charges. On the same day, the trial court sentenced defendant to 21 years in state prison, which included two consecutive five-year terms for his prior convictions. The record contains no evidence that defendant appealed from that judgment. In August 2022, defendant filed a motion for modification of his sentence pursuant to Senate Bill 1393. Defendant argued the equal protection clause required the application of Senate Bill 1393 to his case despite the fact his judgment was final. The trial court denied the motion without a hearing. Defendant appealed the postjudgment order. DISCUSSION Defendant’s appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. We have undertaken an examination of the entire record and conclude we must dismiss this appeal because it is from a nonappealable order.