Filed 6/24/22 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MYRON JOHNSON,

Defendant and Appellant.

F082438

(Tulare Super. Ct. No. VCF346256)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Melinda 

Myrle Reed, Judge.

Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Hill, P. J., Levy, J. and Detjen, J.
2.

Appointed counsel for defendant Myron Johnson asked this court to review the 

record to determine whether there are any arguable issues on appeal. (People v. Wende

(1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief 

within 30 days of the date of filing of the opening brief. Defendant did not respond. 

After filing the Wende brief, appointed counsel filed an application to expand 

appointment to include preparation of a petition for writ of habeas corpus to be filed in 

the trial court on the ground of ineffective assistance of counsel in misadvising defendant 

that he would receive “half-time” credits in prison. We affirm the judgment but will 

expand appointed counsel’s appointment.

BACKGROUND

Between about November 1, 2016, and December 1, 2016, defendant, who had a 

prior felony conviction, persuaded four victims under the age of 18 years to engage in 

commercial sex acts.

On January 20, 2017, defendant possessed a firearm.

On December 8, 2017, in case No. VCF346256, the Tulare County District 

Attorney filed an information charging defendant with 20 counts related to trafficking of 

a minor, pimping, and pandering against four victims.

The same day, in case No. VCF346180, an information was filed charging 

defendant with three counts related to firearm and ammunition possession.

On May 30, 2019, the trial court held a change of plea hearing. The following 

discussion occurred:

“THE COURT: [That term is c]oncurrent?

“THE DEFENDANT: With half time.

“[DEFENSE COUNSEL]: And all of these offenses carry half time.

“THE DEFENDANT: I’m being sentenced to half time on my 

credits for the time I’ve been in custody? I want to make sure. My 

apologies.
3.

“THE COURT: It’s okay. That’s how it works.

“[DEFENSE COUNSEL]: We’ll put it on the record just to make 

sure it travels.

“THE COURT: That’s not a problem, but I do understand it will 

take us a couple weeks to get a probation report.

“THE DEFENDANT: Yes.”

Later at the same hearing, when the prosecutor was describing the terms of the 

plea offer, she stated: “As to any credit issues, I leave those up to CDC[R]. I know there 

ha[ve] been several changes to the law after the Prop[osition] 57 passage. So I will make 

no guarantees as to credits. I know CDCR is doing additional credits.”

Defendant later asked, “The probation report will have the amount of days that 

I’ve been in custody as my credits running with the case, and it will implement that I’m 

getting half time, one day counts as two days, via the discretion that my behavior is 

good?” The court answered, “If you have good time and work time, that will total up to 

basically 50 percent credits pursuant to [section] 4019 of the Penal Code. That’s a Penal 

Code section. That’s how it’s applied. It’s not like we’re gonna do it this way and one 

person this way. Penal Code Section 4019 credits. As long as you did your part of it, 

which is stay out of trouble, then you get the full [section] 4019 credits.”

In case No. VCF346256, defendant pled no contest to counts 1, 9, 13, and 17, 

amended so that each was a violation of Penal Code section 236.1, subdivision (c)(1).1 In 

case No. VCF346180, defendant pled no contest to being a felon in possession of a 

firearm (§ 29800, subd. (a)(1)) in count 1. In both cases, he admitted a prior “strike” 

conviction allegation within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–

(i), 1170.12, subds. (a)–(d).) According to the agreement, defendant would be sentenced 

to a total of 30 years eight months on the two cases.

1 All statutory references are to the Penal Code.
4.

On June 17, 2019, the trial court sentenced defendant to the agreed-upon 30 years 

eight months in prison, as follows: in case No. VCF346256, on count 1, the upper term 

of 24 years; on count 9, five consecutive years;2 on count 13, 16 concurrent years; and on 

count 17, eight concurrent years. In case No. VCF346180, the court imposed 

16 consecutive months on count 1. The court imposed various fines and fees and 

awarded 1,757 days of presentence custody credits (859 days, plus 439 days of conduct 

credits and 439 days of work credits).

After the court finished sentencing, the following exchange occurred:

“[DEFENSE COUNSEL]: ... [Defendant] is asking that it be on the 

record that what he is being sentenced to is eligible for half time in CDCR 

[(California Department of Corrections and Rehabilitation)].

“THE COURT: I’m not sure because of his prior strike. That’s my 

concern. The credits get reduced.

“[DEFENSE COUNSEL]: Right. So he might not get milestone 

time. That’s up to CDCR, but because what he pled to isn’t violent, then it 

is eligible for half time.

“THE COURT: Okay. And I will let CDCR deal with that. If there 

is an issue with it, you can always bring it back, but I believe that 

because—I’m not sure the relationship between the prior strike, because I 

know credits are reduced for that and the other one. If there are offenses in 

there that are not serious and violent, then he could possibly be eligible. 

I’m not going to make the ruling that he is.

“[PROSECUTOR]: For the record, the People made no promises at 

the time of the offer that defendant was going to be getting half time and no 

promises were made today.

2 We note that the prosecutor informed the trial court, as it was pronouncing 

sentence, that count 9 should be concurrent rather than consecutive, so the court restated 

as instructed. But the concurrent term on count 9 was inconsistent with the plea 

agreement and was recorded as consecutive in the abstract of judgment. We believe the 

court’s initial oral pronouncement was correct and the term was indeed consecutive, as 

the abstract reflects.
5.

“[DEFENSE COUNSEL]: Just—and I’m not saying that the People 

have promised anything. What I am stating is that because the offenses are 

both nonviolent and not serious, that they are eligible for half time.

“THE COURT: And he can make that argument, certainly. I have 

no problem with that. We really hadn’t discussed that. That wasn’t part of 

the plea. Whatever the law allows, that’s what’s going to happen.

“THE DEFENDANT: She shook her head yeah.”

On February 4, 2021, defendant (assisted by new counsel) filed a motion to 

withdraw his pleas, arguing that defense counsel was ineffective for misadvising him 

during the plea bargaining and sentencing. He claimed he accepted the plea offer based 

on defense counsel’s advice that he would serve only half of his 24-year term on count 1 

because section 236.1, subdivision (c)(1) is not a violent crime. In actuality, however, he 

did not qualify for half-time credits because of his prior strike conviction, as mandated by 

the Three Strikes law (§§ 667, subd. (c)(5); 1170.12, subd. (a)(5)). Attached to this 

motion was a declaration by defense counsel (unsigned and undated), attesting that she 

misadvised defendant regarding the credits he would be eligible to earn in prison.

The prosecution filed an opposition to the motion, raising several reasons the 

motion should be denied: First, defendant had already raised the issue in a habeas corpus 

petition filed on May 5, 2020, although the prosecution could not locate the ruling on the 

petition. Second, the trial court’s jurisdiction over the case had long since passed and 

there were no extraordinary circumstances under which the court should entertain a 

motion to withdraw the plea. Third, even if the court had jurisdiction, defendant would 

have to justify the delay and address the reason a denial of habeas would allow the 

motion. Finally, the assurance of receiving certain credits would not be a valid basis to 

withdraw a plea.

On February 25, 2021, the trial court held a hearing on defendant’s motion to 

withdraw the plea. New counsel claimed defendant had filed a petition for writ of habeas 

corpus in May 2020 but had received no ruling. The prosecutor stated she did not know 
6.

what had happened to the petition and a ruling could not be found. The court denied the 

motion, noting that “it appears the issue may have been ruled upon or brought up in 

habeas corpus, and the Court does not intend to duplicate any proceeding from that filing 

here.”

The same day, defendant filed a notice of appeal.

On April 7, 2021, appointed counsel moved to augment the appellate record with 

the habeas corpus petition, any opposition filed, and both the clerk’s and reporter’s 

transcripts of any proceeding related to the petition. On May 12, 2021, the clerk of the

trial court responded with a declaration stating she was unable to locate any such 

documents. 

We conclude the record on appeal is inadequate for us to evaluate whether 

defendant received ineffective assistance of counsel, and thus we grant appointed 

counsel’s request for an expanded appointment to prepare a petition for writ of habeas 

corpus to be filed in the trial court.

DISPOSITION

The judgment is affirmed. Appointed counsel’s motion to expand his appointment 

is granted. Counsel’s appointment shall include eight hours for preparing and filing a 

petition for writ of habeas corpus in the trial court.