People v. Johnson CA1/1 ( 2023 )

Filed 3/16/23 P. v. Johnson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A166399
v. (Contra Costa County
WAYNE JEROME JOHNSON, Super. Ct. No. 05-
1905900)
Defendant and Appellant.
Defendant Wayne Jerome Johnson was convicted, following a jury trial,
of stalking, two counts of corporal injury to a person with whom he had a
dating relationship, stalking in violation of a restraining order, and assault
with a deadly weapon. The jury also found true that he personally used a
deadly or dangerous weapon. The court sentenced defendant to six years in
prison.
Defendant appealed, asserting he was entitled to resentencing based on
statutory changes to Penal Code sections 654 and 1170. This court agreed
and remanded the matter “to the trial court to determine whether the
sentencing issues raised in connection with Penal Code sections 654 and
1170, as amended by Assembly Bill [No.] 518 [(2021–2022 Reg. Sess.)] and
Senate Bill [No.] 567 [(2021–2022 Reg. Sess.)], respectively, are moot and, if
not, to vacate and resentence defendant in accordance with those provisions.”
On remand, the trial court sentenced defendant to five years.
1
Defendant appeals from the judgment following resentencing on
remittitur. His appellate counsel filed a brief raising no issues, but asking
this court for an independent review of the record to determine whether there
are any issues that would, if resolved favorably to defendant, result in
reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th
106; People v. Wende (1979) 25 Cal.3d 436.) Counsel notified defendant of his
right to file a supplement brief, and defendant has filed a brief requesting
“relief based upon the issues he raised during resentencing about the two
strikes and their illegality.”
We conclude there are no arguable issues on appeal requiring further
briefing and affirm.
BACKGROUND1
“Jane Doe and defendant began dating after meeting at . . . a salsa
dance club that they both frequented. They dated on and off for
approximately seven months until Doe ended the relationship. According to
Doe’s testimony, their relationship was punctuated with instances of
domestic violence and harassment, which then continued after she attempted
to end the relationship.” (People v. Johnson, supra, A159389.)
“Defendant was charged by information with stalking (Pen. Code,
§ 646.9, subd. (a); count 1), two counts of infliction of corporal injury on a
person with whom he had a dating relationship (id., § 273.5, subd. (a); counts
2 & 4), stalking in violation of a restraining order (id., § 646.9, subd. (b);
count 3), and assault with a deadly weapon (id., § 245, subd. (a)(1); count 5).
1We take judicial notice of the prior opinion and record in People v.
Johnson (May 26, 2022, A159389) [nonpub. opn.]. (Evid. Code, §§ 452, 459.)
We provide only a brief recitation of the facts, as relevant to the issues
raised on appeal.
2
The information also asserted great bodily injury allegations (id., § 12022.7,
subd. (e)) as to counts 4 and 5, [a] personal gun use allegation[] (id., § 12022,
subd. (b)(1)) as to count 4, and that counts 3 through 5 were committed in
multiple counties (id., § 784.7, subd. (b)).” (People v. Johnson, supra,
A159389.)
“A jury convicted defendant as to all counts and found true the personal
use allegation[]. The court sentenced defendant to six years in prison.”
(People v. Johnson, supra, A159389.) The sentence consisted of the upper
term of four years for count 4 (injury to a spouse/cohabitant), one-third the
midterm for one year for count 2 (corporal injury to a spouse/cohabitant), two
concurrent two-year terms for counts 1 and 3 (stalking), and the midterm of
three years for count 5 (assault with a deadly weapon), which was stayed
pursuant to Penal Code section 654. The court also imposed a one-year term
for the Penal Code section 12022, subdivision (b)(1) personal use
enhancement as to count 4. Finally, counts 4 and 5 were designated as
serious felonies.
Defendant appealed, and asserted, among other things, that he was
“entitled to resentencing based on statutory changes to Penal Code
sections 654 and 1170.” This court agreed and remanded the case for
resentencing. (People v. Johnson, supra, A159389.)
The trial court set the date for resentencing in September 2022. A
month before the hearing, defendant’s previous appellate counsel filed a
declaration informing the court that defendant had “completed the entire
sentence as of March 31, 2022,” which included “any State claim of
supervision.” Therefore, the court was “without jurisdiction over any matter
relating to subsequent changes in the sentencing laws or errors . . . made in
sentencing,” and that in any event, “they would not benefit [defendant].”
3
Finally, counsel notified the court that even if it decided to “ceremonially
reduce [defendant’s] sentence to a term of less than the time he actually
served that would be [the court’s] prerogative but it [would] do so without
[defendant’s] participation,” as neither defendant “nor any of the court
appointed or retained attorneys” would appear at the rescheduled hearing.2
Two days later, the trial court issued an order regarding the issuance of
an amended abstract of judgment on remand. The order acknowledged
receipt of counsel’s declaration but did not address any potential issues
regarding mootness. The order also enclosed a copy of a proposed amended
abstract of judgment filed in accordance with this court’s opinion and directed
defendant or his counsel to write with any objections. The proposed amended
abstract of judgment reflected a sentence of five years in state prison with
credit for 584 days, which now included a reduced midterm of three years on
count 4 (corporal injury to a spouse). The rest of the imposed sentence for
counts 1–3, and 5 as well as for the personal use enhancement remained the
same.3 Additionally, counts 4 and 5 remained serious felonies.
Counsel for defendant objected to the proposed abstract asserting it
was “in violation of the rule set for in People v. Vargas (2014) 59 Cal.4th 635,”
“to make a finding of two ‘serious felonies’ based on one act.”
2 We note that despite trial counsel’s declaration stating defendant had
“completed” his “entire sentence,” including “any State claim of supervision,”
the court minutes from the September 2022 hearing regarding the amended
abstract of judgment state defendant was still in state prison.
3 As noted above, the court imposed one-third the midterm for a one-
year term on count 2 (corporal injury to a spouse), two concurrent two-year
terms for counts 1 and 3 (stalking) and imposed but stayed a three-year
midterm on count 5 (assault with a deadly weapon). Finally, the court
imposed a one-year term for the Penal Code section 12022 enhancement.
4
At the subsequent hearing, neither defendant nor any counsel on his
behalf appeared. Nonetheless, the court addressed and overruled the
objection to the proposed amended abstract—both at the hearing and in its
later-filed order—stating Vargas did not “apply in this particular
circumstance.” Rather, it was the court’s view that counsel had
“misinterpret[ed] the holding in Vargas.” As the court explained, “the
sentence on Count 5 was stayed pursuant to Penal Code section 654 and the
defendant sentenced to 4 years (now modified to 3 years) on count 4.” “If the
defendant were charged with and convicted for serious and/or violent felonies
in the future, the holding in Vargas . . . probably would prevent his
convictions on Counts 4 and 5 in the present case from counting as two
separate, prior ‘strike’ convictions. However, for purposes of the present case
only, both of the convictions on Counts 4 or 5 constitute convictions for
serious felonies and the Amended Abstract of Judgment will reflect that fact.”
After the hearing, the court filed an order issuing the amended abstract
of judgment and overruling defendant’s objections, and defendant appealed.
DISCUSSION
In his supplemental brief, defendant contends his “appointed attorney
misunderstood the issues [he] asked her to address” and “requests relief
based upon the issues he raised during resentencing about the two strikes
and their illegality pursuant to People v. Vargas.” Specifically, he contends
“the prosecutor claimed Appellant discharged a weapon at alleged victim
from behind from a surreptitious position. That is an alleged assault. They
also alleged that same act was an assault with a deadly weapon, an act of
domestic violence, and one of the allegations of stalking. On top of that they
charged him with an enhancement for that same act. [¶] Basically, that is
four charges for one single act.” Defendant maintains, relying on People v.
5
Vargas, supra, 59 Cal.4th 635 (Vargas) and In re Alejandro B. (2015)
236 Cal.App.4th 705 (Alejandro B.), this was “improper under the three
strikes laws to charge a person with two strikes for a single act.”
Defendant misreads Vargas and Alejandro B.
In Vargas, supra, 59 Cal.4th 635, our Supreme Court considered
“whether two prior convictions arising out of a single act against a single
victim can constitute two strikes under the Three Strikes law” and concluded
they cannot. (Id. at p. 637.)
In Alejandro B., supra, 236 Cal.App.4th 705, the appellate court
considered “whether the Vargas decision or reasoning applies to a case
involving two current offenses arising out of a single act against a single
victim” and concluded it does not. (Id. at p. 707.)
Neither Vargas nor Alejandro B. support defendant’s position—that it
is improper “to charge a person with two strikes for a single act” for current
offenses.
To the extent defendant appears to be making a Penal Code section 654
argument, this argument also fails. To begin with, the trial court addressed
Penal Code section 654 when it first sentenced defendant and stayed count 5
as it involved “the exact same conduct as charged in Count four.” After
remand, count 5 (assault with a deadly weapon) remained stayed. There was
no other allegation of assault, and defendant’s conviction for count 3
(stalking) did not involve the exact same conduct as charged in count 4 as it
was for his underlying conduct from December 2018 through January 2019.
Next, defendant, relying on People v. Landry (2016) 2 Cal.5th 52(Landry), contends “presenting the enhancement to the jury should have been
prohibited.” His reliance on Landry is misplaced. In that case, the jury
convicted the defendant of, among other things, assault by a life prisoner
6
with malice aforethought (Pen. Code, § 4500) and found true the allegation
that the defendant personally used a deadly weapon (former, Pen. Code,
§ 12022, subd. (b)(1)). (Landry, at p. 60.) The Supreme Court held the trial
court erroneously imposed a one-year sentence enhancement for use of a
deadly weapon on the defendant’s assault count, because use of a deadly
weapon was an element of the defendant’s assault offense. (Id. at pp. 127–
130.)
That is not the case here, as the Penal Code section 12022,
subdivision (b)(1) enhancement was not attached to any assault charge but
rather was attached to count 4 (corporal injury of a cohabitant).
Having considered defendant’s supplemental brief and the having
reviewed the record on appeal, we find no arguable issues that would result
in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A166399, People v. Johnson
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