People v. Johnson CA5 ( 2021 )

Filed 5/21/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080848
Plaintiff and Respondent,
(Super. Ct. No. BF151825A)
v.
BILLY RAY JOHNSON, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Smith, J. and Meehan, J.
Appointed counsel for appellant Billy Ray Johnson, Jr., 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; In re Kevin S. (2003) 113 Cal.App.4th 97.) Counsel filed
an opening brief that sets forth the facts relating to this appeal and which notes that this
court previously detailed the facts of the case in appellant’s prior appeal (People v.
Johnson (July 11, 2019, F071640) [nonpub. opn.]). At counsel’s request, we take judicial
notice of our prior opinion in case No. F071640.
Appellant was advised of the right to file a supplemental brief within 30 days of
the date of filing of the opening brief. More than 30 days elapsed, and we received no
communication from appellant. Finding no arguable error that would result in a
disposition more favorable to appellant, we affirm the order.
The following is a brief description of the facts and procedural history of the case.
(See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) A more complete factual
recitation of the underlying crimes can be found in our prior opinion affirming
appellant’s conviction (People v. Johnson, supra, F071640).
Appellant stands convicted of 24 counts with related firearm and prior conviction
enhancements, including multiple counts of forcible rape, robbery and burglary, among
other charges. These charges arose following a series of four burglaries and sexual
assaults occurring in 2013. A strong circumstantial case was built showing that the same
attacker was responsible for all four events, and that appellant was the attacker in at least
one, and likely all, of them. This circumstantial case was then supplemented with DNA
evidence. In appellant’s prior appeal, he raised concerns with evidentiary rulings related
to the DNA evidence, issues with jury selection, questions about the production of police
misconduct evidence, and problems with the imposition of the firearm enhancements.
We affirmed all aspects of appellant’s conviction but determined the record did not show
whether the trial court would have struck the firearm enhancements if it had known it had
authority to do so. We therefore remanded for the trial court to make that determination.
2.
Upon remand, the trial court held a hearing on whether to strike the firearm
enhancements. The court heard argument from counsel and indicated it had read this
court’s prior opinion, the now retired trial judge’s prior statements about the case, and the
probation report. The court then indicated that, in exercising its independent discretion, it
would not strike the firearm enhancements in the case, affirming appellant’s prior
sentence. The court stated appellant “should receive every second of his sentence.”
Appellant filed a timely notice of appeal.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The order is affirmed. Appellant’s request for judicial notice is granted.
3.