1

Filed 10/6/22 P. v. Payton CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

THE PEOPLE,
Plaintiff and Respondent,

v.
JOHNNY LAMAR PAYTON

, Defendant and Appellant. A 165415
( Sonoma County Super. Ct. No s

. SCR

- 32649

- 1, SCR

- 606397

- 1 )

Johnny Lamar Payton appeals from a postconviction order denying

a motion to vacate his no contest plea for a 2004 felony conviction

. His

appointed appellate counsel filed a brief raising no issues and requesting we

review the record and follow the procedures for dismissing the appeal set

forth in People v. Serrano (2012) 211 Cal.App.4th 496 ( Serrano ). Payton may

not be entitled to a review under People v. Wende (1979) 25 Cal.3d 436

— an
independent judicial review of the record to identify arguable issues

, applicable only to the first appeal of right from a criminal conviction

. But

e ven assuming Wende applies here, we affirm because there are no

meritoriou s arguable issues in his appeal.

BACKGROUND

In 2004, Payton pled no contest to felony criminal threats. ( Pen. Code,

§ 422 , undesignated statutory references are to this code .) Pursuant to a plea

agreement, Payton received a stipulated two

- year prison term to run2

concurrent with any parole violation sentence

. Prior to entering his plea and

while represented by counsel, Payton signed a form waiv ing his right to

a trial . He initialed several boxes noting he freely and voluntarily gave up

that right . Relevant here, he acknowledged that increased penalties for

future offenses and presumptive prison time were consequences of his plea.

He thereafter completed h is sentence.

In 2 012, following a jury trial, Payton was convicted of robbery (§ 211)

and arson (§ 451, subd. (d)). The trial court sentenced Payton to 61 years to
life, which included a five

- year prior strike enhancement for his 2004 offense.

(§ 667, subd. (a)(1).) In April 2022, Payton filed a motion to vacate his plea

for his 2004 offense under section 1473.6

, which authorizes vacating

a judgment of conviction based on newly discovered evidence under certain

circumstances

. He argued the prosecutor failed to demonstr ate he knowingly

and intelligently waived his right to a trial, and the trial court failed to give

the necessary advisements regarding the consequences of accepting the plea

agreement. As a result, Payton argued, the court erred in using his 2004

convicti on as a strike for sentencing purposes. The court denied the motion

. DISCUSSION

Payton’s counsel filed a brief pursuant to Serrano 1 and informed

Payton of his right to file a supplemental brief on his own behalf, which he

has not done

. ( Serrano

, supra , 211 Cal.App.4th at p. 503.) Under Serrano

, Payton is not entitled to a Wende review

. ( Serrano , at pp. 500

– 501 .) T hat

1 Under Serrano , in a criminal appeal in which Wende does not apply and counsel finds no arguable issues, counsel must inform the court there are no arguable issues to be pursued on appeal and file a brief setting forth the applicable facts and law

. ( Serrano

, supra , 211 Cal.App.4th at p. 503 .) The brief provides the court with an adequate basis to dismiss the appeal on its
own motion. (

Ibid .)3

independent review of the record is authorized in the first appeal of right

from a criminal conviction

, not an appeal from an ord er denying

a postconviction motion to vacate a guilty plea

. ( Id

. at pp. 501, 503

– 504

[dismissing Wende appeal].)

But t he Supreme Court is currently considering what procedures “ must

appointed counsel and the Courts of Appeal follow when counsel determines

that an appeal from an order denying postconviction relief lacks arguable

merit

. ” (

People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], rev iew

granted Feb. 17, 2021, S266305.) Pending further guidance concerning the

applicability of Wende procedures in appeals denying postconviction relief, we

exercise our discretion to independently review the record for arguable

issues. ( Conservatorship of Ben C. (2007) 40 Cal.4th 529, 5 44, fn. 7 [appellate

court may retain an appeal seeking Wende review]. ) Having done so, we find

none

. The trial court’s decision denying Payton’s motion to vacate his

conviction was proper . Payton failed to proffer any newly discovered evidence

of fraud, false testimony, or misconduct by a government official that
undermined the prosecution’s case or fabricated evidence of his guilt for the

2004 offense

, i.e., the basis for a section 1473.6 motion

. (§ 1473.6, subd.

(a)(1)

– (3).) T he record further demonstrates Payton knowingly and

intelligently entered into the plea bargain and waived his rights to a trial.

H e initialed and signed a written waiver and plea form, noting he was

properly advised of and acknowledged the direct consequ ences of his plea.

( Boykin v. Alabama (1969) 395 U.S. 238

, 243

– 244 ; In re Tahl (1969) 1 Cal.3d

122 , 130

– 131 .)

DISPOSITION

The order is affirmed.4 _________________________ Rodríguez, J.

WE CONCUR:

_________________________ Tucher, P. J.

_________________________ Fujisaki, J.

A165415