People v. Jackson CA2/8 ( 2021 )

Filed 10/6/21 P. v. Jackson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B310163
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA104857)
v.
JOHNNY EARL JACKSON, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Judith L. Meyer, Judge. Affirmed.
Richard B. Lennon, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Johnny Earl Jackson, Jr. asks us to remand for
resentencing because he says the sentencing court misunderstood
its discretion to strike his strike. We affirm because the record
shows the court understood the sentencing options and exercised
its discretion appropriately. Undesignated statutory citations are
to the Penal Code.
I
We have seen Jackson’s case before. We outline the
procedural history.
In 2016, Jackson grabbed a necklace from a skateboarder’s
neck. An information charged Jackson with one count of second
degree robbery. (§ 212.5, subd. (c).) It also alleged Jackson
served four prior prison terms (§ 667.5, subd. (b)), which included
a burglary conviction (§ 459) that qualified as a prior serious
felony (§ 667, subd. (a)(1)) and as a strike (§§ 667, subds. (b)–(j),
1170.12). A jury found Jackson guilty of second degree robbery.
He admitted the prior conviction allegations. (People v. Jackson
(May 7, 2018, B280386) [nonpub. opn.].)
The trial court sentenced Jackson to 10 years: the low term
of two years, doubled because of the prior strike, plus five years
for the prior serious felony, plus one year for one prior prison
term.
On direct appeal in 2018, we remanded Jackson’s case for
resentencing because the trial court had not advised him of his
right to a trial on the prior conviction allegations. (People v.
Jackson, supra, B280386.) Then Jackson had a bench trial on
these allegations and the court found the allegations true.
(People v. Jackson (June 8, 2020, B293680) [nonpub. opn.].) In
September 2018, the trial court sentenced Jackson to the same
10-year sentence.
2
Jackson appealed again. (People v. Jackson, supra,
B293680.) By that time, Senate Bill No. 136 (2019–2020 Reg.
Sess.) made Jackson ineligible for the section 667.5, subdivision
(b) enhancement. We struck the enhancement and remanded for
a second resentencing.
The present appeal concerns the second resentencing.
Jackson asked the trial court to exercise its discretion to lower
his sentence by striking the prior strike, striking the five-year
prior serious felony allegation, or both.
The prosecution asked the court to keep Jackson’s earlier
sentence, less the one-year section 667.5, subdivision (b) term we
had struck.
The court considered Jackson’s requests. It understood
why the first judge who sentenced Jackson had denied his motion
to strike his strike. The court explained, “I looked at a preplea
report. In 2005, minor crime. 2005, identity theft. 2005, grand
theft. 2006, possession of a gun. 2007, minor crime. 2009 is first
degree residential burglary where he got 2 years prison. The
second he gets out in 2011 we have receiving stolen property, 2
years prison. Clearly already the strike must have [] been
stricken for that 2011 sentence because that’s not doubled. 2013,
they may or may not have got[ten] rid of the strike. I don’t know.
So it looks like he already had the benefit. When you do the
People v. Williams [(1998) 17 Cal.4th 148 (Williams)] factors, I
think this defendant is outside those factors. And I do
understand why a [People v. Superior Court (]Romero[) (1996) 13
Cal.4th 497] motion was denied. . . . His prior history shows that
he has been escalating in the severity of crimes.
“In this particular case it is a crime of violence. He is
doing this while he is on parole. He didn’t seem at least at
3
the time it didn’t seem as if you had much hope for him.
Actually doing fire camp does bode well in his record now.
But clearly 2, 2 and 4 year prison commitments didn’t seem
to get the point across to him in the past. He has to earn
himself the right at this point to get rid of the strike. The
court will deny that request at this point in time. [If t]he
court were to look at this case now, I don’t deny that 10
years seem[s] a little high. This case sort of strikes me as
being maybe a 7 or 8 years case. But there is no way the
court can get to that. It’s not a 4 years case. It’s just not.
The defendant deserves more. Because I am denying
getting rid of the strike, I have to double, 2, 3, 5.
“So that gives me 4, 6, or 10 as the base term. So
what I will do is I’m going to deny your request to strike a
5-year prior. And I will do 4 plus 5 for a total of 9 years.”
II
We uphold Jackson’s sentence.
A
Sentencing courts may strike prior strike convictions and
may strike five-year prior serious felony enhancements in
furtherance of justice. (§ 1385.) We review these decisions for an
abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony); People v. Shaw (2020) 56 Cal.App.5th 582, 586–
587.)
A sentencing court abuses its discretion if it is unaware of
its discretion to strike a prior strike or if it relies on
impermissible reasons to decline to dismiss a strike. (Carmony,
supra, 33 Cal.4th at p. 378.)
Courts may strike a strike if the nature and circumstances
of the defendant’s present felony and prior serious or violent
4
felony convictions, and the particulars of the defendant’s
background, character, and prospects, bring the defendant
outside the spirit of the three strikes law. (Williams, supra, 17
Cal.4th at p. 161.)
B
The sentencing court did not abuse its discretion.
Jackson incorrectly asserts the court’s statement about
there being no way to get a seven- or eight-year sentence meant
the court mistakenly believed these sentences were categorically
impossible. Jackson explains a seven- or eight-year term would
have been possible had the court struck Jackson’s strike, imposed
a two- or three-year base term, and imposed the five-year
enhancement. Jackson asks us to remand and direct the court to
consider exercising its discretion to impose such a sentence.
Jackson’s argument fails because the trial court
demonstrated it knew it had discretion to strike the strike. The
court offered a lengthy account of Jackson’s prior convictions and
determined it should not strike the strike. It was proper for the
court to consider Jackson’s criminal history. The court made a
reasoned decision not to strike the strike.
After the court made this decision, it said it was not
possible to give Jackson a seven- or eight-year sentence. This
was true because, as the court explained, with Jackson’s prior
strike intact, the court could give a four-, six-, or 10-year base
sentence. In context, the court’s statement meant a seven- or
eight-year sentence was not possible, given that the court had
determined it should not strike the strike. Jackson is incorrect
that the trial court misunderstood its sentencing options.
The court also understood it had discretion to strike the
five-year prior serious felony allegation under section 667,
5
subdivision (a)(1). The court denied Jackson’s request to do so.
This was not an abuse of discretion.
The sentencing court understood, and did not abuse, its
discretion.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
6