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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
                                                                     A138274
v.
RICHARD GERALD JOHNSON,                                              (San Mateo County
                                                                     Super. Ct. No. SCO76692)
         Defendant and Appellant.


         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

       1
         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.”

                                               2
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


                                               3
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,3 appellant


         2
         Although, 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.
       3
         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.”

                                                4
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.


                                               5
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.


                                               6
       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.4 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



       4
        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.

                                              7
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.




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