People v. Johnson CA3 ( 2023 )

Filed 3/17/23 P. v. Johnson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097023
Plaintiff and Respondent, (Super. Ct. No. 04F04374)
v.
ARTHUR EUGENE JOHNSON,
Defendant and Appellant.
After Clifton W. broke up a fight between rival gang members, defendant Arthur
Eugene Johnson,1 a gang member, handed an assault rifle to an accomplice to shoot
Clifton. Defendant called out Clifton’s name repeatedly and displayed a revolver as
Clifton tried to escape. Defendant’s accomplice shot Clifton three times.
1 While the notice of appeal filed in this case lists defendant’s name as “Arthur
Johnson,” the original abstract of judgment uses “Arthur Eugene Johnson.” We use the
latter name in this opinion.
1
A jury found defendant guilty of attempted murder and possession of a firearm by
a felon. The jury found true allegations that defendant personally used a firearm and
committed the offenses for the benefit of a criminal street gang, as well as that the
principal to the attempted murder personally and intentionally discharged a firearm
causing great bodily injury for the benefit of a criminal street gang. The jury found not
true allegations that defendant personally and intentionally discharged a firearm and
personally and intentionally discharged a firearm causing great bodily injury. After
defendant admitted two prior strikes, on June 10, 2005, the trial court sentenced
defendant to 59 years to life. We affirmed the judgment in People v. Johnson (Aug. 21,
2006, C050061) [nonpub. opn.].
In June 2022, defendant filed a petition to vacate the gang and gang-related
firearm enhancements under Assembly Bill No. 2542 (2019-2020 Reg. Sess.) (Stats.
2020, ch. 317, § 3.5), which enacted Penal Code2 section 745 (California Racial Justice
Act of 2020), as well as under Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 699, §§ 3, 4), which increased the proof requirements for criminal street gang
enhancements imposed under section 186.22. Defendant contended the district attorney
exhibited racial bias in charging defendant under the gang enhancement statutes, arguing
that statistical data showed these statutes were ineffective in preventing crime and
resulted in racial disparity in prisoners serving gang enhancement sentences. Defendant
also argued that the evidence was insufficient to impose gang enhancements under the
amendments made by Assembly Bill No. 333.
In August 2022, the trial court denied the petition, ruling that (1) section 745 was
inapplicable based on former subdivision (j) of the statute, which provided, “ ‘This
section applies only prospectively in cases in which judgment has not been entered prior
2 Undesignated statutory references are to the Penal Code.
2
to January 1, 2021’ ” (see Stats. 2022, ch. 739, § 2); and (2) Assembly Bill No. 333 did
not apply retroactively to final cases.
In Assembly Bill No. 256 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 739, § 2),
effective January 1, 2023, the Legislature amended section 745 to apply to cases where
judgment was entered prior to January 1, 2021. As amended, commencing January 1,
2023, section 745 applies to all cases where at the time of prosecuting a writ of habeas
corpus (§ 1473) raising a claim under section 745 the petitioner is sentenced to death, or
in cases in which a postcustody motion to vacate is filed (§ 1473.7) “because of actual or
potential immigration consequences related to the conviction or sentence, regardless of
when the judgment or disposition became final.” (§ 745, subd. (j)(2), added by Stats.
2022, ch. 739, § 2.)3
Defendant filed a timely appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the relevant procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief. We granted defendant’s request for an extension of time to
file a supplemental brief and defendant timely filed a brief.
In People v. Delgadillo (2022) 14 Cal.5th 216, the California Supreme Court held
that Wende independent review is not constitutionally required in an appeal from a
postconviction order denying a petition for resentencing under section 1172.6, because
the denial does not implicate a defendant’s constitutional right to counsel in a first appeal
3 As amended, section 745, subdivision (j) provides a further expansion of the
application of the statute each year on January 1 for the next three years. (§ 745,
subd. (j)(3)-(5), as added by Stats. 2022, ch. 739, § 2.)
3
as of right. (Delgadillo, at pp. 222, 224-225.) Nonetheless, in the interest of judicial
economy, the court exercised its discretion to conduct its own independent review, given
that the trial court’s “suboptimal” notice to defendant referenced Wende but did not state
that the appeal would be dismissed as abandoned if the defendant did not file a
supplemental brief. (Id. at pp. 222, 233.)
Delgadillo addressed Wende review only in the context of a postconviction order
under section 1172.6. (People v. Delgadillo, supra, 14 Cal.5th at p. 231, fn. 5.) A
different form of postconviction order is at issue here, but the same principles may apply
given that this is not defendant’s first appeal as of right. Therefore, like the Supreme
Court, we exercise our discretion to conduct an independent review of the record.
Having examined the record, we find no arguable error that would result in a
disposition more favorable to defendant.
4
DISPOSITION
The court’s order denying defendant’s petition is affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
McADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
5