1

Filed 1/28/14 P. v. Johnson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL A. JOHNSON, Defendant and Appellant. A139871
(Lake County Super. Ct. Nos. CR931 131 CR931546 & CR931591)

Defendant Michael A. Johnson appeals following judgments entered pursuant to

no contest pleas entered to resolve the se three referenced cases. Specifically, in case N o. CR 931131, defendant pleaded no contes t to c ount 2, possession of tear gas (pepper spray) (Pen. Code
, § 22900) and c ount 1 was dismissed . In case N o. CR 931546, he pleaded no

contest to c ounts 1 and 3
, possession of methamphetamine (Health & Saf

. Code
, § 1137 7, subd. (a)) and driving with a suspended license (Veh. Code
, § 14601.1, subd. (a) ), respectively, and admitted one prior prison term (Pen. Code
, § 667.5, sub d. (b)); all other allegations were dismissed. 1 The trial court sentenced him to a total of four years (three

year upper term for methamphetamine possession and one year for the prior, and a concurrent 180 days for the suspended license and concurrent year on the tear gas possession) , to be completed in local custody pursuant to Pen al Code section 1170. In

1 The additional allegations included that defendant committed the off ense while out on bail in case N o. CR 931131 and three other prior prison terms (Pen. Code
, § 667.5, sub d. (b)).2

case N o. CR 931591, the trial court revoked community supervision and imposed 180 days, concurrently with the other sentences.
His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. ( People v. Kelly (2006) 40 Cal.4th 106 ; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, and has done so

. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.
D ISCUSSION Penal Code section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for
, and the trial court has granted
, a certificate of probable cause . There are two exceptions: (1) a challenge to a search and seizu re ruling
, as to which an appeal is proper under Penal Code section 1538.5, subdivision (m) ; and (2) post plea sentencing issues. ( People v.
Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Since defendant’s appl ication for a certificate of probable cause was denied, he is not able to challenge the validity of his plea or any other matter that preceded its entry , except as permitted under the exceptions. ( See People v. Cole (2001) 88 Cal.App.4th 850, 868.)
Defe ndant made suppression motions in the pepper spray and methamphetamine

cases. Officer Bradlee Middleton testified in the pepper spray case. He observed defendant driving a car with expired registration tags, then pull off the street into a lot,
exit the vehicle and quickly walk away. Middleton stopped his car, exited and called out for defendant to stop and return to talk to the officer. The officer saw defendant toss away a black object near the car as he walked toward the officer. Not knowing what th e object was and seeing others in the car, the officer, who was al one, detained defendant in
hand cuffs for safety purposes and ran a records check, which showed defendant was on post release community supervision, subject to a search

. He then searched def endant and3

found the canister of pepper spray. The trial court correctly ruled the initial detention (the order to stop walking and return to the officer) was proper to investigate the apparent vehicle code violation (the expired registration tags). It a lso correctly ruled the handcuffing during the detention was justified given defendant’s tossing away an unidentified object towards the car, the presence of others in the defendant’s car, and the fact the officer was alone at the scene and reasonably conc erned about safety. The detention was brief and during that time the officer learned defendant was subject to
search. Accordingly, the motion to suppress was properly denied.
O fficer Michael Ray testified in th e methamphetamine case. He was enroute, with
his K

- 9, to contact an individual
, and at a stop sign saw defendant in a small pickup truck. Looking at the officer, defendant began backing up against the flow of traffic, which the
office r believed might be a vehicle code violatio n, unsafe backing. The truck then pulled to east shoulder, while the officer pulled up next to the driver’s side of the truck. He then recognized the defendant and asked why he had backed up. Defendant said he did not want the officer to see him driving . The officer believed defendant was on parole, and
asked him if he was. Defendant confirmed that he was. The office r then conducted a parole search and found in defendant’s pants pocket a substance he believed was methamphetamine and in d efendant’s shi rt pocke t a glass smoking pipe with residue. The trial court did not agree there was a vehicle code violation, but properly concluded there was permissible contact before any detention . A t that point the officer recognized defendant, and was aware of def endant’s parole and search status. Accordingly, this motion to suppress wa s also properly denied. The second exception to the requirement for a probable cause statement does not encompass defendant’s motion to withdraw his plea on grounds he was under th e influence of pain killers for an injury he had sustained in jail and he believed his prior attorney would get him into a drug treatment program and represent him in a civil acti on against the Sheriff. This is an attack on the validity of the plea based on alleged circumstances that preceded the plea and, therefore, is within the probable cause statement requirement. ( People v. Johnson (2009) 47 Cal.4 th 668, 679; see also People4

v. Placenia (2011) 194 Cal.App.4 th 489, 494

– 495. ) In any case, defendant te stified, as
did h is prior attorney. It was within the trial court’s province to determine which testimony to credit, and it credited th at of defense counsel. There was no abuse of discretion in denying defendant’s motion to withdraw his plea.
The trial c ourt also did not commit any error or abuse its discretion in sentencing
defendant. Defendant was ably represented by counsel, who urged probat ion and

treatment. The prosecution urged imposition of the upper term on the drug possession charge in light of defendant’s decade of drug abuse and extensive criminal his tory. The trial court duly explained its sentencing decision on the record . While recognizing defendant’s substance abuse problem, it was persuaded aggravating factors predominated , including cr iminal history, poor performance on probation, and increasing
seriousness of criminal conduct

. Custody credits were pr operly determined.
D ISPOSITION After a full review of the record, we find no arguable issues and affirm the judgment s

.

_________________________ Banke, J.

We concur:

_________________________ Margulies, Acting P. J.

_________________________ Becton, J. 

 Judge of the Contra Costa County Superior Court, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.