People v. Johnson CA2/1 ( 2021 )

Filed 3/23/21 P. v. Johnson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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This opinion has not been certified for publication or ordered published for purposes of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 ONE
THE PEOPLE, B303373
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA060033)
v.
CHRISTOPHER JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, George G. Lomeli, Judge. Affirmed.
Aron Laub for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung,
Deputy Attorneys General for Plaintiff and Respondent.
In 2008, a jury convicted defendant Christopher Johnson of
eight counts of second degree robbery and found that he personally
used a firearm in the commission of each robbery and discharged
a firearm in the commission of four robberies. The court sentenced
him to 65 years 4 months in prison.
In March 2019, the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) sent a letter to the superior
court recommending that defendant be resentenced under Penal
Code1 section 1170, subdivision (d)(1). After a contested hearing,
the superior court struck five of the eight firearm enhancements
and resentenced defendant to 42 years in prison. Defendant
appealed. Because the court did not abuse its discretion in
resentencing defendant, we affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
A. 2008 Convictions
On June 16, 2005, defendant entered a liquor store in
Glendale a few minutes before the store’s 10:00 p.m. closing time.
He wore gloves, a ski mask with a single opening around the
eyes, and a dark, hooded jacket. Defendant pointed a .380-caliber
semiautomatic handgun at M.A., grabbed him by the wrist, and
pulled him into a corner. Defendant asked M.A. where the money
and safe were, but M.A. did not know. Defendant then told H.H.,
“This is a holdup.” Defendant went to the employee’s side of the
checkout counter and demanded that H.H. open the cash register.
When H.H. did not comply, defendant put the gun against H.H.’s
temple and repeated his demand. Defendant repeatedly said,
“Give me money,” and “[g]ive me hundreds.” Defendant fired the
gun at the floor near H.H.’s foot. H.H. opened the cash register,
1 Subsequent unspecified statutory references are to the
Penal Code.
2
and defendant took the money from it. Defendant then demanded,
“Give me the large monies, give me large dollars,” and asked for the
location of the safe. H.H. showed defendant the safe, but defendant
left without opening it.
On the night of January 5, 2006, defendant entered a market
in Canyon Country near closing time. He wore a black jacket, dark
gloves and a black or dark ski mask with one opening for the eyes.
He leaped over the counter and crouched down next to an employee,
D.P. Defendant pointed a gun at D.P. and demanded money. After
D.P. handed defendant the money in the cash register, defendant
asked whether there was more money and searched the shelves
beneath the counter. Defendant threatened to shoot D.P. if he
found any more money.
On January 12, 2006, defendant entered a liquor store in
Saugus less than 30 minutes before closing time. He wore a grey
hooded sweatshirt, gloves, and a black ski mask. The store’s owner,
I.A., and his friend J.A. were present. Defendant went behind the
counter, crouched, and pointed a gun at J.A’s chest. He threatened
to shoot if I.A. did not give him all of the money. I.A. gave
defendant all of the money in the cash register. Defendant then
repeatedly asked where “the hundreds” were hidden and said, “I
know you hide your fucking money.” He fired the gun at the floor
near I.A.’s feet, then pointed the gun at J.A. again and said, “Next
time, the bullet will go inside of you.” Defendant demanded J.A.’s
and I.A.’s wallets and took their money and J.A.’s phone. He then
searched the store for more money before leaving.
On January 13, 2006, defendant entered a convenience
store in Saugus about 11:10 p.m. He wore a black ski mask with
a single opening for the eyes and a hooded jacket with an emblem
on the hood. He jumped over the counter, pointed a gun at
employee, N.N., and demanded all of the money. Defendant
crouched down behind the counter. After taking all of the money
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from the cash register, defendant repeatedly asked where they hid
the “big money,” “big bills,” and hundreds. He also asked for the
location of the safe. N.N. said he did not have the key to the safe.
Defendant searched the shelves beneath the counter and took one
or more magazines, which were kept behind the counter, and left.
On January 24, 2006, defendant entered a store in
Santa Clarita about 9:10 p.m. or 9:25 p.m. He wore a black ski
mask and held a gun. He told an employee, K.S., to give him all of
the money. As K.S. complied, defendant said he just wanted “large
bills” and “hundreds.” He also asked K.S. to open the safe, but K.S.
did not have the key. Defendant searched a cabinet before leaving
through the back door.
On April 4, 2006, defendant entered a liquor store in
Canyon Country between 10:00 p.m. and 11:00 p.m. As employee
A.S. was turning off the lights and preparing to close the store,
defendant came up to him on the employee side of the counter and
yelled at him to sit on the floor. Defendant had a revolver in his
hand and was wearing a big jacket, gloves, and a ski mask with
a single opening around the eyes. Defendant crouched down and
demanded that A.S. give him all of the money. A.S. opened the
register, and defendant took all of the money from it. Defendant
repeatedly asked where A.S. kept the “hundreds,” and said, “I know
you hide them!” A.S. handed defendant two stacks of money hidden
behind some liquor bottles. Defendant searched the area near the
cash register, then left.
After his arrest, investigators found a loaded nine-millimeter
handgun and a .380 caliber semiautomatic handgun in his
apartment. These firearms were registered to defendant.
Detectives also found an unregistered loaded .38 caliber revolver
in defendant’s vehicle.
A jury convicted defendant of eight counts of second degree
robbery (§ 211) and found that defendant personally used a gun
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in the commission of each offense (§ 12022.53, subd. (b)) and
personally discharged a gun in the commission of four robberies
committed on June 16, 2005 and January 12, 2006 (§ 12022.53,
subd. (c)).
In sentencing defendant, the court imposed the upper term of
five years on the principal count—the robbery of H.H. on June 16,
2005—plus 20 years for the related firearm discharge enhancement.
For the convictions of four robberies in which defendant used but
did not discharge a firearm, the court sentenced defendant to
consecutive terms of 4 years 4 months for each count, comprised
of one year for each robbery plus 3 years 4 months for each firearm
enhancement. On the remaining three counts involving defendant’s
discharge of a firearm, the court sentenced defendant to consecutive
terms of 7 years 8 months, comprised of one year for each robbery
plus 6 years 8 months for each of the firearm enhancements.2 The
total prison term was 65 years 4 months.
In 2011, this court affirmed defendant’s convictions in an
unpublished opinion. (People v. Johnson (May 25, 2011, B216951).)
B. Resentencing
In March 2019, the Secretary of the CDCR (the Secretary)
sent a letter to the superior court “to provide the court with
the authority to resentence [the defendant], pursuant to . . .
section 1170, subdivision (d)(1).” The Secretary enclosed with the
letter a report that describes defendant’s work, volunteer activity,
and educational achievements during his incarceration, among
other information. The letter states: “[Defendant] has remained
disciplinary free since his arrival to CDCR, with the exception of . . .
2 The court also imposed 10-year terms for the personal
firearm use enhancements (§ 12022.53, subd. (b)) on counts 8,
9, and 19, but stayed those terms pursuant to section 12022.53,
subdivision (f).
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one rules violation report dated October 2, 2011, for fighting. A
review of [defendant’s] file reveals he has participated and on many
occasions been a facilitator for self-help groups. [Defendant] has
earned 17 laudatory chrono[s] from various staff and volunteers,
this commitment to a positive change will assist [defendant] in a
successful transition back into society. [Defendant] is commended
for his rehabilitative endeavors to better himself. [¶] Having
reviewed the enclosed documentation, it appears that [defendant’s]
sentence warrants the attention of the court. Pursuant to . . .
[s]ection 1170, subdivision (d), as the Secretary [of the CDCR],
I recommend the inmate’s sentence be recalled and that he be
resentenced.” (Capitalization omitted.) The letter did not
recommend any particular sentence.
On July 24, 2019, the superior court appointed counsel for
defendant and set a date for a hearing.
In November 2019, defendant filed in the superior court
a brief in support of resentencing. Specifically, he requested that
the court resentence him by striking or dismissing all firearm
enhancements. If that is done, defendant stated, he will already
have served his full sentence and should be released.
Defendant submitted evidence of the following in support
of his argument: (1) While incarcerated, defendant received from
a community college Associate of Arts (AA) degrees in American
studies, arts and humanities, social and behavioral science, and
business; (2) In connection with his community college programs, he
was recognized for making the “Honor’s List” for three semesters;
(3) a certificate from Microsoft Corporation recognizing him as a
“Microsoft Office Specialist” for certain Microsoft software products;
(4) certifications from adult education programs for three courses
in semi-automatic sewing machine operation; (5) numerous
acknowledgements and commendations regarding his participation
in and completion of various educational, counseling, community
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outreach, and self-improvement programs; (6) favorable statements
from his prison work supervisors; (7) letters from family members
and friends expressing favorable views of defendant’s character
and vowing to provide post-release support for defendant; and
(8) a “re-entry and operations plan” in which defendant expresses
remorse and personal responsibility for his criminal conduct and
outlines a post-release support structure and his plans for obtaining
housing, further education, and employment. (Capitalization
omitted.)
The People filed an opposition to resentencing, asserting that
the CDCR’s recommendation “is ill-informed, ill-advised, and based
on flawed information.” Based on defendant’s criminal history,
the People concluded that “defendant is a dangerous and violent
criminal,” and that a “reduction of the defendant’s sentence is not
in the interest of justice.”3
After a hearing, the court recalled defendant’s sentence and
struck the firearm enhancements related to the robberies that
occurred on January 12, January 13, January 24, and April 4, 2006.
(§§ 12022.53, subds. (b), (c) & (h).) The court did not change the
original sentencing court’s imposition of the upper term on the
principal count or the imposition of consecutive terms on the
subordinate counts. As a result, the court reduced defendant’s
sentence from 65 years 4 months to 42 years.
The court explained that it had “carefully reviewed” the
moving and opposing papers and “all supporting documentation
and exhibits.” The court noted the following: (1) “[I]n 2009, the
defendant received a maximum sentence of 65 years and 4 months
after having been convicted of [eight] counts of robbery with the
3 The People’s opposition relied in part on descriptions of
other robberies allegedly committed by defendant, but which were
never proved.
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jury also finding true the various firearms allegations including
that the defendant personally discharged a firearm”; (2) “[T]he
robberies in question were violent, dangerous and callous involving
some incidents where the defendant personally discharged a
firearm and or held a firearm to a victim’s head while threatening
to shoot them”; (3) “The defendant had a minimal prior criminal
history and has earned at least [three] AA degrees with honors
while incarcerated. Similarly, he has received various certifications
including one from Microsoft”; and (4) “The defendant’s behavior
and conduct while incarcerated·has been[,] for the most part,
exemplary and he has received letters of recommendation in
support from various institutions, CDCR staff members[,] as well as
family and friends.”
The court concluded: “Following very careful consideration
of all that has been presented before it, this court is of the opinion
that the defendant does merit resentencing consideration, but
not to the point that he should be released from custody. This
is not, in any way a viable resentencing option considering the
conduct demonstrated by the defendant in committing the [eight]
violent robbery charges that he stands convicted of. However,
from review of the overall record presented, this court agrees
that the defendant’s subsequent achievements, behavior and
recommendations in support, do indicate that resentencing
pursuant to Penal Code section 1170 is appropriate.”
DISCUSSION
Upon the recommendation of the Secretary of the CDCR,
a “court may . . . recall the sentence” of a defendant sentenced
under the determinate sentencing law, “and resentence the
defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the
initial sentence.” (§ 1170, subd. (d)(1).) If the court resentences the
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defendant under this provision, it “shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing” and “may reduce a defendant’s
term of imprisonment and modify the judgment, including a
judgment entered after a plea agreement, if it is in the interest of
justice. The court may consider postconviction factors, including,
but not limited to, the inmate’s disciplinary record and record of
rehabilitation while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that
reflects that circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no longer
in the interest of justice.” (Ibid.)
We review the court’s sentencing decision for an abuse of
discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal. 4th
968, 977; People v. Carmony (2004) 33 Cal. 4th 367, 376.)
The scope and breadth of a court’s discretion in making a
particular decision depends upon the legal principles and policies
governing the decision. (People v. Carmony, supra, 33 Cal.4th
at p. 377; People v. Eubanks (1996) 14 Cal. 4th 580, 595.) Here,
the discretion a court has in resentencing a defendant under
section 1170, subdivision (d)(1), is statutorily constrained by the
requirements that the court “resentence the defendant in the same
manner as if [the defendant] had not previously been sentenced,”
the defendant’s “new sentence” shall be “no greater than the initial
sentence,” and the court “shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1170, subd. (d)(1).) The
court must also give the defendant credit for time served. (Ibid.)
Defendant does not contend that the court failed to comply with
these requirements.
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The discretion implicated by defendant’s challenge is
established by the third sentence of section 1170, subdivision (d)(1):
“The court resentencing under this paragraph may reduce a
defendant’s term of imprisonment and modify the judgment . . .
if it is in the interest of justice.” (§ 1170, subd. (d)(1).) In a similar
context where the Legislature has provided courts with sentencing
discretion to be exercised in furtherance of justice, our Supreme
Court has explained that review under the abuse of discretion
standard is “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.” (People
v. Carmony, supra, 33 Cal.4th at pp. 376–377.)
Here, defendant contends that the court erroneously based
its decision solely upon the circumstances of his commitment
offenses. The record does not support this argument. In reducing
defendant’s sentence by more than 23 years, the trial court relied in
part on what it described as the “violent, dangerous[,] and callous”
manner in which defendant committed a series of eight armed
robberies, but also expressly considered defendant’s educational
achievements, exemplary behavior in prison, and the letters of
recommendations defendant received from outside institutions,
CDCR staff, family members, and friends. The court further
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stated that it had considered all the evidence presented to it and
that it agreed with defendant that his “achievements, behavior and
recommendations in support, do indicate that resentencing . . . is
appropriate.”
Defendant points out that the People did not offer any
evidence that defendant had done anything during his 13 years
of incarceration that “could be considered negative, or which
showed in any way during those 13 years that there was a risk
of future dangerousness if [defendant] was released from custody.”
The court was not limited, however, to considering defendant’s
conduct in prison. Indeed, because the court was authorized to
“resentence the defendant in the same manner as if [the defendant]
had not previously been sentenced” and to apply the sentencing
rules of the Judicial Council (§ 1170, subd. (d)(1)), the court
had the resentencing authority to consider the objectives of
“[p]unishing the defendant,” and “[d]eterring others from criminal
conduct by demonstrating its consequences” (Cal. Rules of Court,
rule 4.410(a)(2) & (4)), as well as aggravating circumstances,
such as facts that the “crime[s] involved great violence” or
the “threat of great bodily harm” (id., rule 4.421(a)(1)). Thus,
although defendant’s positive conduct in prison was relevant to
the resentencing decision, so were the circumstances of his crimes.
The lack of evidence of misconduct in prison, therefore, is not
determinative.
Defendant supports his argument by asserting that there
has been a shift in penological thinking away from punishment
and toward rehabilitation, and that the interest of justice is
served when a defendant, such as himself, has been sufficiently
rehabilitated such that his release will not compromise public
safety. Defendant points to the CDCR’s “mission statement,”
which expresses the agency’s goal of facilitating the successful
reintegration of prisoners back to their communities “by providing
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education, treatment, rehabilitation, and restorative justice
programs.” (https://www.cdcr.ca.gov/about-cdcr/vision-mission-
values.) He also cites a 2016 legislative amendment to
section 1170, subdivision (a)(1), which added “rehabilitation” and
“restorative justice” to “punishment” as purposes of sentencing.
(Stats. 2016, ch. 887, § 5.3, p. 5983.)
Defendant’s assertion of a shift in penological policy is
valid, particularly as to youthful offenders. This shift is evident
in recent United States Supreme Court and California Supreme
Court decisions, which reflect “a sea change in penology regarding
the relative culpability and rehabilitation possibilities for juvenile
offenders.” (People v. Vela (2018) 21 Cal. App. 5th 1099, 1106; see,
e.g., Graham v. Florida (2010) 560 U.S. 48, 74 [“sentence of life
imprisonment without parole . . . cannot be justified by the goal of
rehabilitation”]; People v. Caballero (2012) 55 Cal. 4th 262, 268 [the
state may not deprive juveniles who commit nonhomicide offenses
“at sentencing of a meaningful opportunity to demonstrate their
rehabilitation and fitness to reenter society in the future”].)
This shift is also evident in recent legislation. In addition
to adding “rehabilitation” and “restorative justice” to the purposes
of sentencing in section 1170, subdivision (a)(1), as defendant
observed, the Legislature amended section 1170, subdivision (d)(1)
in 2018 to permit courts, when resentencing under that subdivision,
to consider “postconviction factors, including, but not limited to,
the inmate’s disciplinary record and record of rehabilitation while
incarcerated.” (Stats. 2018, ch. 36, § 17, p. 1419.) The Legislature
has also enacted section 3051, which, as amended, generally
establishes youth offender parole hearings for prisoners who
committed crimes when they were under 26 years of age. (§ 3051,
subd. (a).) The purpose of this law is to provide youthful offenders
with “ ‘a meaningful opportunity to obtain release’ after they
have . . . made ‘ “a showing of rehabilitation and maturity.” ’
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[Citation.]” (People v. Edwards (2019) 34 Cal. App. 5th 183, 198;
see also In re Williams (2020) 57 Cal. App. 5th 427, 434 [section 3051
is intended to provide motivation for prisoners to focus on
rehabilitation].)
These changes, however, do not mean that every incarcerated
person who compiles a strong record of rehabilitation is entitled
to resentencing without regard to the prisoner’s crimes. Although
a shift toward rehabilitation in sentencing may be underway,
that shift has not reached the point where only rehabilitation
matters. The Legislature, while adding “rehabilitation” to the
purposes of sentencing in section 1170, subdivision (a)(1), did not
delete “punishment” as a purpose. And, in adding the language
to section 1170, subdivision (d)(1), that permits resentencing
courts to consider evidence of rehabilitation, the Legislature
retained the direction that courts apply the sentencing rules of
the Judicial Council, which continue to permit consideration of
the circumstances of the crimes.
Lastly, defendant relies on standards governing the parole
board’s decision whether to grant parole. (See, e.g., Cal. Code
Regs., tit. 15, § 2281, subd. (a) [“a life prisoner shall be found
unsuitable for and denied parole if in the judgment of the panel
the prisoner will pose an unreasonable risk of danger to society
if released from prison”].) Defendant offers no authority for
the application of parole standards in the sentencing context.
Indeed, the two areas are governed by distinct statutory and
regulatory schemes and nothing in those schemes suggest that
the standards applicable to granting parole apply to the decisions
made by sentencing courts.4 Moreover, even the parole board,
4 Felony sentencing is governed by, among other statutes and
rules, sections 667 through 669, sections 1170 through 1170.95, and
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when considering whether a prisoner is suitable for parole,
is required to consider the circumstances of the prisoner’s
commitment offenses (§ 3041, subd. (b)(1); Cal. Code Regs.,
tit. 15, §§ 2281, subd. (b), 2402, subd. (b); see People v. Braley
(2020) 52 Cal. App. 5th 680, 687-688 [suitability for parole requires
consideration of the circumstances surrounding the commitment
offense].)5
For the foregoing reasons, we reject defendant’s arguments
and conclude that the court’s resentencing decision was not an
abuse of discretion.
sections 12021.5 through 12022.95, and rules 4.401 through 4.480
of the California Rules of Court. Parole is governed by, among
other statutes and regulations, sections 3040 through 3073.1 and
Title 15, Division 2, Chapter 3 of the Code of Regulations.
5 In his reply brief, defendant argued that the trial court
was required to hear expert testimony as to defendant’s current
dangerousness. Defendant did not raise this point below or in
his opening brief and does not support it with citation to apposite
authority. We decline to address it. (See People ex rel. Feuer v.
Superior Court (Cahuenga’s the Spot) (2015) 234 Cal. App. 4th
1360, 1384 [court declined to address arguments not supported
by citation to authority]; People v. Baniqued (2000) 85 Cal. App. 4th
13, 29 [arguments raised for first time in reply brief are ordinarily
waived].)
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DISPOSITION
The trial court order dated December 5, 2019, resentencing
the defendant is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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