IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
October 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LYDIA LAVERN JOHNSON, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM031250, CM031296)
The opinion of the court was delivered by: Hoch , J.
P. v. Johnson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed defendant's supplemental brief and the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Summary of Facts*fn1 and Procedural History
Defendant Lydia Lavern Johnson and the victim had lived together on and off for the 10 months preceding July 13, 2009. The victim had been trying to terminate the relationship and defendant had been responding by becoming violent.
The victim had moved in with a neighbor in order to avoid defendant. On July 13, 2009, defendant went to the neighbor's residence four times. The first time, defendant threatened to hit the victim with a stone. The second time, she picked up a three-foot-long pipe and threatened to strike a witness. The third time, defendant walked onto the porch and slapped the victim twice on his face, knocking off his glasses and causing a small injury to the face. While defendant and the victim wrestled to the ground, she bit his forearm causing a bleeding bite mark. Officers responded to the incident and defendant was released from the scene. The fourth time, defendant again walked onto the porch and struck the victim on the head. Finally, the victim pepper sprayed defendant.
In case No. CM031250, defendant pled no contest to infliction of corporal injury on a cohabitant. (Pen. Code,*fn2 § 273.5, subd. (a).) In case No. CM031296, defendant pled no contest to willful failure to appear on a felony charge (§ 1320) and admitted that she was released on bail or her own recognizance in case No. CM031250 at the time of the offense (§ 12022.1). In exchange, a strike allegation (§§ 667, subds. (b)-(i), 1170.12) in case No. CM031250 was dismissed and defendant was promised no state prison at the outset.
Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 180 days of incarceration and completion of a batterer's treatment program. She was ordered to pay a $720 fine, a $300 battered women's shelter fee (§ 1203.097, subd. (a)(11)(A)), a $400 domestic violence program fee (§ 1203.097, subd. (a)(5)), a $400 restitution fine (§ 1202.4), a $400 restitution fine suspended unless probation is revoked (§ 1202.44), a $30 per conviction court security fee totaling $60 (§ 1465.8), and a $30 per conviction court facilities assessment totaling $60 (Gov. Code, § 70373).
Nine months later, a petition was filed alleging that defendant violated her probation by being terminated from her batterer's treatment program. Defendant admitted the allegation.
Defendant was sentenced to state prison for five years eight months, consisting of the middle term of three years for corporal injury, eight months consecutive for failure to appear, and two years for the enhancement. She was awarded 154 days' custody credit and 154 days' conduct credit.*fn3 The court confirmed the $400 restitution fine, lifted the stay on the probation revocation restitution fine, imposed a $400 restitution fine suspended unless parole is revoked (§ 1202.45), and confirmed the court security fee and court facilities assessment.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a one-page supplemental brief that requests the court to review three legal issues but provides no supporting analysis or discussion. We thus address the issues as best we understand them.
Defendant first writes: "1# Plea Agreement no immediate State Prison."
We construe this passage as contending there was some infirmity in defendant's ultimate sentence to state prison. However, there was not. The trial court fulfilled the plea agreement's promise of no immediate state prison when it suspended imposition of sentence and placed defendant on probation with a disciplinary term of incarceration. However, after defendant violated her probation, the promise no longer was effective and no longer precluded a state prison commitment. We find no error.
Defendant next writes: "#2 422PC is a misdemeanor conviction in Yolo Co. not Butte Co." This refers to the dismissed strike allegation in case No. CM031250.
The complaint alleged that defendant had an April 20, 2004, strike conviction of violation of section 422 in Yolo County Superior Court. Under "Criminal Record Summary," the original probation report listed the section 422 charge with a May 4, 2005, disposition date and a parenthetical "(M)," which indicated that the matter was a misdemeanor.
At the original sentencing hearing, this exchange occurred:
"THE COURT: [O]n the rap sheet there clearly was a strike charged in the document in the charging document [sic]. I don't see a strike in the rap sheet. I'm thinking that probably the 422 on the last page from 11-5-04 [sic], which is listed here as a misdemeanor --
"[¶] . . . [¶]
"[Prosecutor]: It is a misdemeanor according to the rap sheet.
"PROBATION: It is a misdemeanor.
"THE COURT: But the charging document alleges on that date she acquired a strike, and the strike was dismissed as a condition of the plea. I'm trying to get everything straightened out. I'm not challenging the plea.
"[Prosecutor]: That was incorrectly alleged.
"THE COURT: Okay."
By her words "incorrectly alleged," the prosecutor evidently meant that the complaint "incorrectly alleged" the offense to be a felony strike when it was, in fact, a misdemeanor. However, the trial court appears not to have understood the prosecutor's remarks in that manner. Instead, the court appears to have amended the probation report by interlineation to reflect that the offense was a felony ("F") rather than a misdemeanor. No evidence beyond the face of the complaint supported this amendment. Neither the trial court nor the parties suggested that the section 422 offense occurred in Butte County.
Defendant does not contend she could have obtained a more favorable disposition had the parties understood that she was not receiving the substantial benefit of dismissal of a strike. Because it challenges the plea, any such contention is precluded by her failure to obtain a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
As noted, the trial court awarded defendant conduct credit consistent with the 2010 amendment of section 2933. (See fn. 3, ante.) Although a strike conviction would have denied her the benefit of that amendment, the mis-alleged strike was not used in that manner and no prejudice resulted.
Defendant lastly writes: "3# The change of charge is not reflected in the minute Order. It's illegal anyway 422 PC is in Yolo Co."
Defendant is correct that the trial court's amendment of the probation report is not reflected in the sentencing minutes. Because the amendment was incorrect, no correction of the minutes is required.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. HULL , J.