THE PEOPLE, Plaintiff and Respondent, v. TYRONE JOHNSON, Defendant and Appellant.
F086571 (Super. Ct. No. BF171276A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 6/7/24
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 spеcified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court‘s direction in Kelly, we provide a brief description of the facts and the procedural history of the case. (Kelly, at p. 110.) Finding no arguable error thаt would result in a disposition more favorable to defendant, we affirm.
PROCEDURAL SUMMARY
An information consolidated two separate criminal cases brought against defendant and a codefendant on April 5, 2022.1 The amended consolidated information charged defendant with murder (
Additional enhancing or aggravating allegations were also attached to each count. Specifically, for counts 1, 3, and 5, the additional allegations stated defendant used a methоd described in section 189, subdivisions (a) through (i) to commit the murder, defendant committed the crime to further a criminal street gang (
On August 16, 2022, count 15 was added to the amended consolidated information alleging voluntary manslaughter (
On October 5, 2022, the trial court granted defendant‘s Romero motion and struck one of the strike prior convictions for purposes of sentencing. The court then sentenced defendant to the upper term of 11 years, doubled to 22 years for count 15, plus a term of 10 years for the gun enhancement. The court further imposed consecutive terms of four years eight months each for counts 3 and 5, and another consecutive term of 16 months for count 11. This resulted in a total sentence of 42 years eight months in prison. Finally, the court imposed the customary fines and fees, and calculated defendant‘s presentence credits.
After defendant learned his trial counsel did not file a notice of appeal on his behalf, he attempted to file one on his own with the superior court. After that filing was rejected as untimely, defendant filed a petition for a writ of habeas corpus with this court seeking pеrmission to file a belated appeal. On July 13, 2023, this court granted defendant‘s request to file a belated appeal, agreeing with the People that he had made a prima facie showing that he relied on trial counsel‘s express assurances a notice of appeal would be filed.3 Defendant‘s notice of appeal with a request for the issuance of a certificate of probable cause was filеd with the superior court on that same date. Defendant‘s request for the issuance of a certificate of probable cause was also granted on that same date. Defendant is alleging he received inеffective assistance of counsel because he did not receive the sentence he was led to believe he would receive by his
FACTUAL SUMMARY
On November 10, 2017, police found a pregnant woman and her five-year-old son outside an apartment with gunshot wounds. The officers then discovered a third victim, a three-year-old male in the bedroom of an apartment with a gunshot wound to his chest. Based on statements made at sentencing, defendant and another individual broke into the apartment inhabited by the mother and her two young children, then entеred a bedroom where the mother and her two children were watching videos. Gunfire soon broke out. Defendant admitted when changing his plea to no contest, that his use of a firearm resulted in the death of one individual (thе three-year-old child), and the injury of two others (the mother and her five-year-old son).
During the same hearing, defendant also admitted that on April 28, 2021, he escaped from a correctional facility while awaiting trial.
DISCUSSION
Having carefully reviewed the entire record, we conclude there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441–443.) We, however, address two issues raised by defendant when making his request for a certificate of probаble cause.
1. The Sentence Imposed
We first address defendant‘s contention he received a sentence that was different from the one his attorney led him to believe he would receive. When defendant entered his plea of no сontest to the four counts, the trial court stated the following:
“It‘s my understanding you‘re going to plead to Count 15, voluntary manslaughter … with personal use of a firearm, you‘re going to admit the prior strikes, you‘re going to admit the factors in aggravation.
You would also be pleading guilty or no contest to Counts 3 and 5, both of those are attempted murder charges under Penal Code 664 [/]187(a) , and Count 11, an escape charge underPenal Code 4532(b)(1) , one of the two prior strikes will be stricken at sentencing. On the manslaughter charge with the рersonal use of a firearm, that‘s going to be 32 years; is that right?“[PROSECUTOR]: Correct.
“THE COURT: And the remaining counts will be one-third the midterm, doubled, consecutive, for a total of 42 years, eight months in the Department of Corrections.
“Is that what you understood and agreed to, [defendant]?
“[DEFENDANT]: Yes, ma‘am.”
Later in the hearing, the attоrneys stipulated there was a factual basis for the plea entered by defendant, after which the court made a finding defendant had made a knowing and intelligent waiver of his rights when entering the plea. Defendant did not chаllenge these statements by the attorneys, or the conclusion reached by the court.
When actually imposing the sentence on October 5, 2022, the trial court referenced the fact defendant would be recеiving a sentence of 42 years eight months as the reason it was appropriate to strike one of the prior strike allegations. Later, after selecting sentences for each count, the court stated that when added together the “total fixed term” would consist of 42 years eight months. Again, defendant registered no objection to the sentence imposed by the court.
A “trial court‘s sentencing discretion must be exercised in a mаnner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Based upon our review of the entire record relevant to sentencing in the context of the actual sentence imposed, we cannot conclude the trial court abused its discretion.
2. The Validity of Defendant‘s Plea
In his notice of appeal, defendаnt stated he sought a certificate of probable cause for ineffective assistance of counsel because he did not receive the sentence his attorney led him to believe he would recеive. As a result, defendant believes his plea was not voluntarily and knowingly made.
We have already addressed the objective validity of the sentence imposed above. With respect to defendant‘s claim the plea was not voluntary or with knowledge of the consequences, we must reject that contention as well. First, the record reveals that when accepting the plea, the trial court noted the 42-year eight-month sеntence before going through a list of potential consequences with defendant. Defendant acknowledged he understood these rights and was giving up each right outlined by the court.
Turning to defendant‘s contention that his acceptance of the plea agreement was due to the ineffective assistance of counsel, we must also reject that claim based on the record before us. “On direct appeal, a conviction will be reversed for ineffective assistance [of counsel] only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) Our review of the record submitted in this appeal fails to disclose evidence supporting any of the standards set out in Mai.
DISPOSITION
The judgment is affirmed.
7
Before Levy, Acting P. J., Peña, J. and Snauffer, J.