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Filed 12/20/13 P. v. Johnson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD GERALD JOHNSON,

Defendant and Appellant.

 A138274

 (San Mateo County

 Super. Ct. No. SCO76692)

Appellant, Richard Gerald Johnson, appeals from the judgment and sentence 

following a plea of no contest to possession of cocaine for sale. His court-appointed 

attorney has filed a brief raising no legal issues and requesting this court to conduct an 

independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. As 

the appeal is based solely on grounds occurring after entry of the plea, and does not 

challenge the validity of the plea, it is authorized by rule 8.304(b)(4)(B) of the California 

Rules of Court. 

FACTS AND PROCEEDINGS BELOW

On November 13, 2012 (all dates are in that year unless otherwise indicated), the 

San Mateo County District Attorney filed an amended information alleging that on

August 3, appellant possessed cocaine base for sale. One strike prior and other prior 

convictions were also alleged. (Health & Saf. Code, § 11351.5; Pen Code, §§ 1170.12, 

subd. (c)(1), 1203.07, subd. (a)(11), 1203, subd. (e)(4), 667.5, subd. (b); Health & Saf. 

Code, §§ 11370, subd. (a) and 11370.2, subd. (a).) 
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On November 14, appellant filed a motion to suppress the evidence seized during 

a warrantless search of his vehicle on August 3. A contested hearing was held on that 

motion on November 29, and at the conclusion of that hearing the motion was denied.

The facts relevant to this appeal were elicited at the suppression hearing. South 

San Francisco Police Sergeant Danny Gil testified that on August 3, 2011, at 

approximately 10:45 p.m., he and Officer Molyneux were patrolling in East Palo Alto 

near the intersection of Bay Road and Paloverde Road. A 1988 Cadillac was 20 to 30

feet in front of them. Although their headlights were pointed directly at the rear of the 

car, the officers were unable to read the rear license plate. Aware that increasing 

numbers of people were spraying chemicals on their license plates to reduce the 

reflection therefrom, which prevented the plates from being read by cameras at red lights, 

or those used at bridge tolls, Gil said he and Officer Molyneux stopped appellant’s car 

because such alteration of a license plate violated “Vehicle Code section 5201 (g).”1 

After examining the plate, Gil believed it had been altered. During their contact with 

appellant, the officers were able to “locate and seize the contraband that forms the basis 

of the charges involved in the case.” 

The license plate, which was placed in evidence, was legible in the normal light of 

the courtroom. However, Gil testified that it could be read in the dark of night only when 

a light was shined on the plate which “bounced back” because of the reflective material 

covering the plate. Gil testified that appellant’s rear plate had been altered. Certain parts 

appeared “faded” and there was “blackness around the number ‘2’, the first letter of the 

 

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Pursuant to amendment of Section 5201 effective January 1, 2013, the substance 

of what was at trial section 5201, subdivision (g), is now contained in section 5201, 

subdivision (c), providing, “A casing, shield, frame, border, product, or other device that 

obstructs or impairs the reading or recognition of a license plate by an electronic device 

operated by state or local law enforcement, an electronic device operated in connection 

with a toll road, high-occupancy toll lane, toll bridge, or other toll facility, or a remote 

emission sensing device, as specified in Sections 44081 and 44081.6 of the Health and 

Safety Code, shall not be installed on, or affixed to, a vehicle.” (See, Stats. 2003, ch. 

594, § 28 (S.B. 315); Stats. 2012, ch. 702, § 3 (A.B. 2489).) In addition, subdivision (a) 

of the statute provides, “License plates shall at all times . . . be maintained in a condition 

so as to be clearly legible.” 
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license plate, as well as black cracking or veins going throughout the license plate. The 

‘California’ on top is no longer red, but rather a pinkish color and also faded. The blue 

coloring on the letters and numbers of the license plate has also been faded, faded out. 

[¶] And that’s why it was so difficult and impossible to read the license plate at night 

with headlights on the rear plate from a distance of 20 to 30 feet.” 

On cross-examination, Officer Gil testified that he did not test the license plate to 

determine whether it was ever covered by a reflective seal. He also stated that the 

Cadillac was not weaving and the lamp that illuminated the plate was working. He 

additionally allowed that the surface of a license plate “can be affected by a lot of 

things,” such as salt water, fog, and age. 

Defense counsel argued strenuously that there were many reasons the surface of 

the plate had faded and the letters and numbers no longer as easy to read as they once had 

been, and there was no evidence the plate had been deliberately altered in any way by 

appellant or by anyone else. Nevertheless, stating that “I don’t find this is a particularly 

close case,” the court concluded that “the officer definitely had a reasonable suspicion to 

stop the vehicle for several violations. He doesn’t need to know for sure, but just a 

reasonable suspicion.” 

On November 29, 2012, pursuant to a plea agreement, appellant pleaded no 

contest to possession of cocaine base for sale, admitted a strike and probation ineligibility 

allegation (Pen. Code, § 1203.07, subd. (a)(11)); and admitted three prior drug-related 

sales charges (Health & Saf. Code, § 11370.2, subd. (a)); in exchange for a 14-year 

ceiling and leaving it open to the court to strike the strike prior. 

The trial court found a voluntary and knowing waiver of rights, and ordered the 

filing of appellant’s written waiver. The court found that the police report, lab report, 

preliminary hearing transcript, and review of prior convictions collectively provided a 

factual basis for the plea. The remaining priors and special allegations were dismissed. 

At the sentencing hearing on March 6, 2013, and after denying appellant’s motion 

to dismiss the strike prior, the court sentenced appellant to 14 years in state prison; that is, 

it imposed the midterm of four years for possession of cocaine base for sale, doubled 
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pursuant to the “two-strikes” law, plus three years, to be served consecutively, on each of 

the two drug-sale priors. The court imposed a restitution fine of $280, and a parole 

revocation fine in the same amount, suspended. Appellant was awarded custody credits 

in the amount of 432 days (216 days actually served and 216 days for good time/work 

time). 

A timely notice of appeal was filed on April 2, 2013, challenging denial of the 

motion to suppress. On August 28, 2013, after his counsel filed a Wende brief, appellant 

filed a supplemental letter brief in propria persona. 

DISCUSSION

Where, as here, specific issues are raised by an appellant himself in a Wende 

proceeding, by filing supplemental contentions, we must expressly address them in our 

opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 124.)

Because appellant pled no contest to the offense, the scope of the reviewable issues is 

restricted to matters based on constitutional, jurisdictional, or other grounds going to the 

legality of the proceedings leading to the plea; guilt or innocence are not included. 

(People v. DeVaughan (1977) 18 Cal.3d 889, 895–896.)

Appellant’s pro per brief raises three issues.2 

The first appears to be that he was not provided effective assistance of counsel 

during the plea negotiation process and did not waive his rights and enter his plea 

knowingly and voluntarily. Emphasizing the asserted unfairness of the offer appellant 

was ultimately forced to consider, which was more onerous than that earlier presented in 

this case and another assertedly comparable cases he does not describe,3appellant 

 

2Although, as will be seen, appellant’s supplemental letter brief challenges the 

stop of his car, he did not challenge the subsequent search in the trial court or in his 

supplemental letter brief in this court. We do not know, but assume this is because he 

was subject to a warrantless search as a condition of probation or parole.

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The other case appellant refers to was in San Francisco. Without describing the 

charges in the case, appellant states that the San Francisco District Attorney “offer me ten 

years with 1/2 time. 6 years [suspended]—4 years with 1/2 time. 2 years in the [county] 

Jail. No pen[itentiary] time. That’s what he told me in San Francisco Court.” 
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suggests he was blindsided by, and did not understand, the prosecutor’s decision to 

withdraw a previous offer and replace it with one much more severe. The relevant facts 

are as follows. After Judge Jonathan E. Karesh, who conducted the suppression hearing,

denied appellant’s suppression motion, he described the offer made to appellant by the 

district attorney and approved by Judge Graig L. Parsons, the Criminal Presiding Judge; 

namely, that appellant would have to “plead guilty to [the] possession for sale charge, 

Count 1, admit a strike, admit [Penal Code section] 1203.07[, subdivision] (a)(11), which 

means no probation, and admit the three prior drug related sales charges. And the top 

was, according to Judge Parsons, a 14-year top and refer [to probation]. And he wrote 

‘Romero.’ I assume that means he would consider [granting a ] Romero [motion], but 

doesn’t mean he guarantees it.” When Judge Karesh asked appellant if he understood the 

terms of the plea, appellant responded: “No, I don’t.” 

After the court recessed to provide time for appellant to discuss the matter with his 

attorney, and the case was recalled, appellant informed the court “that all the time I have 

been getting sentenced . . . I didn’t know nothing about this three years priors. . . . 

Because like I have half time every time. I don’t know nothing about no strike. . . . Every 

time I pleaded guilty, they gave me half time. I just got out of San Quentin. I ain’t never 

had the strike. So, why is they bringing the strike thing up?” Defense counsel confirmed 

that neither he nor appellant was aware of the latest strike allegation at the time the plea 

offer was first presented by the district attorney. Counsel stated that the strike—which 

related to a 1981 offense—was only alleged after the case had been “carried over,” 

during which time the district attorney apparently discovered the 1981 prior and amended 

the information to include it. 

After the deputy district attorney pointed out that appellant had admitted the 1981 

strike prior in a 1996 case, and appellant reiterated that “I don’t know nothing about it,” 

Judge Karesh stated that it was not he but Judge Parsons who approved the offer, and that 

his job was only to “make sure . . . that you understand [the offer].” Judge Karesh also 

 

Appellant’s idea that a plea agreement in a prior case establishes a norm that must be 

adhered to by prosecutors in subsequent prosecutions is manifestly untenable. 
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emphasized that “the bottom line is my understanding is that [the] offer expires today. So 

when you come on the trial date next week, it is likely going to be more than a fourteen 

year offer.” After appellant stated that the district attorney had previously offered him “a 

ten year deal” and “I never turned it down,” defense counsel stated that at the time of that 

offer the district attorney’s office did not know about the strike but alleged it after it was 

discovered. Judge Karesh told appellant that “once they find the strike, then the 

penalties go way up.” The deputy district attorney then stated that her office calculated 

that the strike exposed appellant to “a 34 year maximum total” but she had not confirmed 

the calculation. 

After appellant pointed out that he was 60 years old, and 34 years would therefore 

effectively amount to a life sentence, and even 14 years was too much for mere 

possession, Judge Karesh allowed that appellant was “up against a rock and a hard 

place.” Nevertheless, he felt unable to either predict exactly what would happen if 

appellant accepted the 14-year offer, or to grant appellant additional time to decide. After 

a brief recess to provide appellant an opportunity to confer with his attorney, counsel 

informed the court that appellant was prepared to formally enter the plea contemplated by 

the latest offer. 

Judge Karesh then admonished appellant about the rights he would give up by 

entering his plea, after which appellant waived his rights, stipulated to a factual basis for 

his plea based on the police report, lab report, and preliminary hearing transcript, pleaded 

no contest to violation of Health and Safety Code section 11351.5, and admitted the 

charged prior convictions.

The process in which appellant entered his plea and admitted his prior convictions 

clearly conformed to the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In 

re Tahl (1969) 1 Cal.3d 122, and the record contains no evidence indicating appellant’s 

waiver of rights and plea was not informed and voluntary or that he received and was 

prejudiced by ineffective assistance of counsel in connection with the negotiated plea. So 

far as the record shows, appellant had not accepted the district attorney’s initial offer, and

appellant never contested the 1981 strike prior at issue.
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Nothing in the record suggests appellant was not mentally competent at the time 

he negotiated and entered his plea; he was at all times represented by competent counsel 

who protected his rights and interests, and the sentence imposed on appellant as a result 

of his plea is authorized by law. For those reasons, and because he timely received the 

admonitions required by Boykin v. Alabama, supra, and In re Tahl, supra, we conclude 

that appellant waived his rights and thereafter entered his plea knowingly and voluntarily. 

The second issue appellant presents, which may also embody an ineffective 

assistance of counsel claim, is that in entering his plea he relied on the representation of 

his attorney that doing so would not prevent him from challenging the legality of the 

proceedings leading to the plea. (Appellant implies he initially believed entering a plea 

would entail a complete waiver of the right to appeal, and ultimately agreed to enter the 

plea only after his lawyer informed him that doing so would not prevent him from 

challenging the validity of the plea.) Appellant now claims counsel betrayed him because 

“he never file no appeal for me” and, for that reason, apparently wants us to permit him 

to withdraw his plea. This argument is based on the false assumption that there is no 

appeal when counsel for an indigent appellant files a Wende brief, and we therefore reject 

it.

Appellant’s last contention is that denial of his suppression motion was reversible 

error.

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 According to appellant, “Gil[,] the officer that stop me[,] stop me because I was a 

black man [riding] in a low rider Cadd. in E[ast] Palo Alto. They were stop[p]ing 

everybody that night. My plates are clear as day. I’ve been stop[p]ed at night and the 

 

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Penal Code section 1538.5, subdivision (m), which allows a defendant to seek 

further review of the validity of a search or seizure on appeal from a criminal conviction 

even though the conviction is predicated on a plea of guilty, “constitutes an exception to 

the rule that all errors arising prior to entry of a guilty plea are waived, except those 

which question the jurisdiction or legality of the proceedings. (People v. Lilienthal (1978) 

22 Cal.3d 891, 897.) Without deciding the matter, we will for present purposes indulge 

the questionable assumption that review of appellant’s challenge to the detention, rather 

than the subsequent search, is within the ambit of the statutory authorization, because 

sustaining that claim would invalidate use of the product of the search.
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police didn’t say that they couldn’t see my plates. That’s a lie. They took my plates off 

my car that night. There was nothing on my plates. [I]t was a wrongful stop.” 

We reject this argument because it mischaracterizes the issue and ignores the standard of 

review.

As Judge Karesh made clear, the issue at the suppression hearing was not whether 

the license plate had been altered in any material way, but whether the situation in which the 

officers stopped appellant’s car presented reasonable cause to believe the condition of the 

rear plate on appellant’s car violated the Vehicle Code. Officer Gil’s testimony was that he 

and Officer Molyneux “could not read [appellant’s] license plate at all.” Officer Gil was 

vigorously cross-examined, but his asserted inability to read appellant’s rear plate from a 

distance of 20 to 30 feet was not challenged. That statement supports Judge Karesh’s 

conclusion that Gil believed the condition of the plate may have violated the Vehicle Code, 

and he therefore had reasonable cause to make the stop. A witness may be discredited by a 

showing of bias or interest, or self-contradiction, or other grounds of impeachment, or by 

the manner of testifying, or by inherent improbabilities in the testimony, so that the witness 

may be deemed unworthy of belief. However, in a case such as this credibility is almost 

always to be determined in the trial court. (See, e.g., People v. Swanson (1962) 204 

Cal.App.2d 169, 173.) The inherent improbability of a witness’s testimony may be used as 

a ground of reversal only where the testimony is so utterly unbelievable as to warrant that 

result (see, e.g., People v. Headlee (1941) 18 Cal.2d 266, 267; People v. Carvalho (1952) 

112 Cal.App.2d 482, 489), and that clearly cannot be said of Officer Gil’s testimony. 

DISPOSITION

For the foregoing reasons, we reject the claims advanced by appellant in his 

supplemental letter brief. Additionally, having independently examined the record in its 

entirety, we find no arguable issues warranting further briefing.

Accordingly, the judgment, including the sentence imposed, is affirmed.
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________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.