People v. Johnson CA2/2 ( 2022 )

Filed 6/10/22 P. v. Johnson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307181
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A778000)
v.
GARY JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark S. Arnold, Judge. Dismissed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant Gary Johnson (defendant) appeals
from the July 24, 2020, summary denial of his petition for
resentencing under Penal Code section 1170.95.1 Because we
have already ordered the trial court to conduct further
proceedings under section 1170.95, subdivision (c), with respect
to a substantively identical petition for resentencing filed by
defendant, we can provide no effective relief to defendant through
this appeal. Accordingly, we dismiss the appeal as moot.2
BACKGROUND3
I. Conviction and Direct Appeal
In 1987, a jury convicted defendant of first degree murder
(§ 187, subd. (a)), felonious assault (§ 245, subd. (a)(1), (2)), and
several counts of residential robbery (former § 213.5). Defendant
was sentenced to an indeterminate term of 25 years to life for the
murder, plus a determinate term of two years eight months for
the other counts. We affirmed the judgment on direct appeal.
(People v. Fulton (June 30, 1989), B028520 [nonpub. opn.], at
p. 6.)
II. First Petition for Resentencing and Appeal No. B307181
On May 26, 2020, defendant filed a petition to be
resentenced pursuant to section 1170.95 (first petition for
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We grant defendant’s April 4, 2022, motion to take judicial
notice of various records of the trial court and the Court of Appeal
related to this case. (Evid. Code, § 452, subd. (d).)
3 Because the facts underlying defendant’s murder conviction
are not relevant to our dismissal, we omit them from this
summary.
2
resentencing). On July 24, 2020, the trial court summarily
denied the first petition for resentencing on the ground that
defendant was not convicted of murder.
One month later, on August 24, 2020, defendant filed a
petition for writ of mandate. On September 18, 2020, we issued
an order deeming the petition for writ of mandate a notice of
appeal from the July 24, 2020, denial of defendant’s first petition
for resentencing. As a result, this appeal, No. B307181, ensued.
III. Second Petition for Resentencing and Appeal No. B309494
Meanwhile, on August 31, 2020, defendant filed a second
section 1170.95 petition for resentencing in the trial court (second
petition for resentencing). On October 28, 2020, the trial court
summarily denied the second petition for resentencing, again, on
the ground that defendant was not convicted of murder. On
November 25, 2020, defendant filed a notice of appeal from the
October 28, 2020, denial of his second petition for resentencing,
and Appeal No. B309494 ensued.
IV. Trial Court’s Acknowledgment of Error
On March 2, 2021, the trial court acknowledged that it
“was in error when it summarily denied the Penal Code
section 1170.95 petition”—as defendant was convicted of
murder—and “request[ed] that the Court of Appeal remand the
case back to the trial court for further proceedings.”
V. Dismissal of Appeal No. B309494 and Remand
On March 10, 2021, defendant filed a motion in Appeal
No. B309494 to remand the case for further proceedings and to
dismiss Appeal No. B309494 as moot based on the trial court’s
acknowledgement of error.
We granted defendant’s motion in Appeal No. B309494 on
March 11, 2021. Our order states, in part: “[T]his matter is
3
remanded to the trial court for further proceedings, under
subdivision (c) of Penal Code § 1170.95, with respect to
defendant’s petition for resentencing. The notice of appeal filed
November 25, 2020 is hereby dismissed as moot. The clerk shall
issue the remittitur forthwith.”
VI. Continuation of the Instant Appeal
On November 4, 2021, we appointed counsel to represent
defendant in this appeal, Appeal No. B307181.4 Defendant’s
appointed counsel filed an opening brief on November 24, 2021,
arguing that the denial of the first petition for resentencing
should be reversed because defendant was, in fact, convicted of
murder.
On December 6, 2021, we received a request directly from
defendant asking us to dismiss this appeal “without prejudice[.]”
Defendant stated that he “ha[d] no recognition” of filing a notice
of appeal from “the July 24, 2020 denial[.]” On December 20,
2021, we received another request directly from defendant to
dismiss the appeal.
The People filed a respondent’s brief on March 28, 2022,
arguing that the instant appeal should be dismissed as moot
because the appeal stemming from the second petition for
resentencing had already resulted in a remand for further
proceedings.
On April 4, 2022, defendant’s appointed counsel filed a
reply brief in which he argued that the instant appeal is not moot
and that dismissing it while permitting the second petition for
resentencing to proceed in the trial court “is an inadequate
remedy as that second petition could itself be potentially denied
4 Different counsel had been previously appointed to
represent defendant in Appeal No. B309494.
4
not on the merits, but rather as an improper second and
successive petition.”
DISCUSSION
“As a general rule, ‘“‘the duty of this court, as of every other
judicial tribunal, is to decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the case
before it.’”’ [Citation.] Thus, an ‘“action that originally was based
on a justiciable controversy cannot be maintained on appeal if all
the questions have become moot by subsequent acts or events.”’
[Citations.] Put another way, ‘“[a]n appeal should be dismissed
as moot when the occurrence of events renders it impossible for
the appellate court to grant appellant any effective relief.”’
[Citation.]” (People v. Pipkin (2018) 27 Cal.App.5th 1146, 1149–
1150 (Pipkin).)
Here, based on subsequent events, no effective relief can be
offered to defendant through this appeal of the July 24, 2020,
summary denial of the first petition for resentencing. In our
March 11, 2021, dismissal and remand in Appeal No. B309494,
we already directed the trial court to conduct further proceedings
under section 1170.95, subdivision (c), with respect to defendant’s
second petition for resentencing. The first and second petitions
for resentencing are substantively the same—challenging the
same murder conviction—and were denied for the same reason.
Continuing with the instant appeal and reversing the order
denying the first petition for resentencing would only result in
duplicative petitions proceeding in the trial court. This would
serve no useful purpose and warrants dismissal of this appeal.
(See Pipkin, supra, 27 Cal.App.5th at pp. 1149–1150.)
5
Defendant’s appellate counsel argues that the instant
appeal should not be dismissed because the trial court could
potentially deny the second petition for resentencing “as an
improper second and successive petition” rather than ruling on
its merits.5 We disagree. The first petition for resentencing was
denied and the matter will not be remanded for further
consideration of that petition. Thus, duplicative petitions for
resentencing will not be before the trial court. Pursuant to our
March 11, 2021, order in Appeal No. 309494, the trial court must
conduct further proceedings under section 1170.95, subdivision
(c), with respect to the second petition for resentencing.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
5 Counsel acknowledges that defendant has personally
submitted two requests that we dismiss this appeal. Counsel
opposes those requests.
6