People v. Johnson CA2/8 ( 2022 )

Filed 7/19/22 P. v. Johnson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B317094
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141155)
v.
TERRENCE KAISER JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Mark D. Lenenberg, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Terrence Kaiser Johnson appeals the judgment entered
after a remand from this court for resentencing. We previously
affirmed his convictions for two counts of forcible rape (Pen.
Code1, § 262, subd. (a)(2)) and one count of forcible oral
copulation (§ 288a, subd. (c)(2)(A)) and the true findings on the
multiple victim allegations (§ 667.61, subds. (b) & (e) (One Strike
law)), the prior strike conviction allegations (§§ 667, subd. (d) &
1170.12, subd. (b) (Three Strikes law)), and the personal use of a
deadly or dangerous weapon allegation (§12022, subd. (b)(1)). On
remand, the trial court denied appellant’s motion to strike his
prior strike conviction and sentenced him to a total term of
80 years to life in prison, consisting of 25 years to life for the
count 1 forcible rape conviction, pursuant to the One Strike law,
doubled to 50 years pursuant to the Three Strikes law; a
consecutive term of 15 years to life for the count 2 forcible rape
conviction pursuant to the One Strike law, doubled to 30 years
pursuant to the Three Strikes law; and a concurrent 4 year term
for the forcible oral copulation conviction.
Appellant appeals, contending the trial court abused its
discretion in denying his motion to strike. He also contends the
trial court erred in refusing to award him pre-sentence conduct
credit. We find no abuse of discretion and no error and affirm the
judgment.
BACKGROUND
The facts of this case are set forth in more detail in our
previous nonpublished opinion. (People v. Johnson (May 29,
2022, B296318) [nonpub. opn.].) We briefly summarize.
1 Undesignated statutory references are to the Penal Code.
2
In March 2015, while walking along Western Avenue,
Catrice encountered appellant; she recognized him as someone
she had previously met through a mutual acquaintance. They
later met and went for a drive. Appellant parked his SUV in an
industrial area and they smoked marijuana. Appellant kept
trying to touch Catrice, but she pushed him away. Appellant
pulled out a knife and told Catrice to pull down her pants. He
then inserted his penis into her vagina. After he was done,
appellant dropped Catrice off near the area where he had picked
her up.
In January 2016, India met appellant when he pulled up
next to her as she was walking along a street in Inglewood. At
some later point, appellant texted India and they met and went
for a drive. Appellant sold India some Ecstasy pills, which she
ingested. Appellant parked his truck. India wanted appellant to
take her home, but he refused. He said that he had a gun and
would kill her if she did not do as he said. She was afraid and
complied with his demand to orally copulate him. Next, he
forcibly inserted his penis into her vagina. After that, he drove
her home.
DISCUSSION
A. Motion to Strike Prior Conviction.
Appellant contends his circumstances put him outside the
spirit of the Three Strikes law and so the trial court abused its
discretion in denying his motion to strike his prior conviction.
Specifically, appellant contends his prior strike conviction for
residential burglary was committed in 2002 when he was only
21 years old and so was remote in time. He also contends he
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committed no serious offenses in the 13 years between that
offense and the current offenses.
We review a trial court’s ruling on a motion to strike a prior
strike conviction for abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 375 (Carmony).) In so doing, “we are
guided by two fundamental precepts. First, ‘ “[t]he burden is on
the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the
trial judge.’ ” ’ [Citations.] Taken together, these precepts
establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person
could agree with it.” (Id. at pp. 376–377.)
“[T]he circumstances must be ‘extraordinary . . . by which a
career criminal can be deemed to fall outside the spirit of the very
scheme within which he squarely falls once he commits a strike
as part of a long and continuous criminal record.’ ” (Carmony,
supra, 33 Cal.4th at p. 378.) Thus, the California Supreme Court
has established “stringent standards” courts must follow in
ruling on a motion to strike or reviewing such a ruling. “ ‘[T]he
court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
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the scheme's spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’ ” (Id. at p. 377.) “ ‘[W]here
the record demonstrates that the trial court balanced the
relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance.’ ”
(Id. at p. 378.)
Here, the trial court expressly considered the remoteness of
appellant’s strike conviction, a 2002 burglary of which appellant
was convicted in 2004. As the People pointed out, appellant did
not live a law-abiding life between the 2002 burglary and the
2015–2016 sexual offenses. Appellant was convicted of
misdemeanor battery arising from a 2003 incident of domestic
violence, misdemeanor domestic violence with injury in 2012, and
assault with a deadly weapon in 2013. The current offenses also
involved violence against women, showing a continuing pattern of
criminal behavior. Such a pattern makes the remoteness of the
strike conviction less meaningful. (See People v. Philpot (2004)
122 Cal.App.4th 893, 906 [“Although defendant points out his
personal background and the remoteness of his priors, the court
could not overlook the fact defendant consistently committed
criminal offenses for the past 20 years.”].)
The trial court also expressly considered appellant’s
personal characteristics, noting that appellant was a “very, very
bright” and “intelligent” man who could have been a lawyer. The
trial court also recognized that although appellant was
intelligent, “for some particular reason . . . some particular need,”
appellant chose to commit “heinous” crimes against two separate
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victims and threatened one of the victims with a knife. The court
concluded that “the negatives outweigh the positive.”
Appellant does not contend the trial court was unaware it
had discretion to strike the conviction, and he has not identified
any improper factors considered by the court or any relevant
factors overlooked by the court. (See People v. Avila (2020)
57 Cal.App.5th 1134, 1140–1141 [court abuses its discretion if it
considers improper factors or fails to consider relevant factors].)
He simply disagrees with the trial court’s weighing of those
factors. This is insufficient to show an abuse of discretion. The
trial court “ ‘balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law.’ ” Thus, we are
bound to affirm that ruling. (Carmony, supra, 33 Cal.4th at
p. 378.)
B. Presentence Conduct Credit.
The trial court ruled appellant was not entitled to
presentence conduct credit. The court reached the correct
conclusion.
When the One Strike law (§ 667.61) was enacted in 1994, it
provided that defendants sentenced under its provisions were
limited to 15 percent conduct credit. (People v. Adams (2018)
28 Cal.App.5th 170, 181–182.) In 2006, section 667.61 was
amended to remove any reference to conduct credit. (Adams, at
p. 182.) Thereafter, defendants given indeterminate terms under
section 667.61 are no longer eligible for presentence conduct
credit. (Adams, at p. 182; accord People v. Dearborne (2019)
34 Cal.App.5th 250, 267–268.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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