People v. Johnson

Filed 3/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B290213
(Super. Ct. No. SA066369)
Plaintiff and Respondent, (Los Angeles County)
v.
WILLIE MERVYN JOHNSON,
Defendant and Appellant.
Senate Bill No. 620 does not automatically trigger
resentencing for a prisoner who was previously found to have
used a firearm in the commission of a felony. The Legislature
has expressly limited the reach of newly enacted Penal Code
§ 12022.53, subd. (h). 1 A defendant serving a sentence pursuant
to a “final” judgment, who asks for such relief, should receive a
“summary denial.” (See People v. Romero (1994) 8 Cal.4th 728,
737.) The State of California has a “powerful interest in the
finality of its judgments. . . . [P]articularly strong in criminal
cases, for ‘[w]ithout finality, the criminal law is deprived of much
1 All statutory references are to the Penal Code.
of its deterrent effect.’ [Citations.]” (In re Harris (1993) 5 Cal.4th
813, 831.) The state certainly has a strong interest in deterring
the use of firearms in the commission of a felony.
Appellant contends that he is entitled to 1. be present in
the trial court, 2. counsel, 3. de novo sentencing hearing, 4.
present evidence, and 5. confront and cross-examine witnesses.
These enumerated rights attach to an original sentence hearing.
Unless and until the trial court issues an order in the nature of
an order to show cause, a defendant has no “entitlement” to these
rights. We affirm. 2
Facts and Procedural History
Appellant shot and killed Tina Gatlin, his former girlfriend,
on December 11, 2007. In 2009, appellant was convicted, by jury,
of second degree murder. The verdict included a finding that the
enhancement alleging use of a firearm was true. (§§ 187, 189,
12022.53, subd. (b).) The trial court sentenced appellant to a
term in state prison of 15 years to life, plus a 10-year consecutive
term for the firearm use.
We affirmed his second degree murder conviction with the
use of firearm finding enhancement in People v. Johnson, Mar.
29, 2011, B220820 [nonpub. opn.]. The California Supreme Court
denied review on June 15, 2011 (S193001). Appellant’s time to
file a petition for writ of certiorari in the United States Supreme
Court expired on September 13, 2011. (Supreme Court Rules,
rule 13.)
Appellant is no stranger to seeking post sentence relief
from final judgments. He has filed numerous petitions for writs
2Our colleagues in the Third District have reached the
same result as we do here. (People v. Fuimaono (Feb. 8, 2019,
C087336) __ Cal.App.4th __ [2019 Cal.App. LEXIS 108].)
2
of habeas in state and federal courts. He has had no success.
The United States Supreme Court denied appellant’s petition for
writ of certiorari in the federal habeas matter on January 12,
2015.
Appellant also filed in state court a motion to reduce the
amount of restitution he was ordered to pay. The motion was
denied. We affirmed that order in an unpublished opinion on
September 7, 2016 (B268763). Appellant then filed a motion to
set aside the restitution order as void. The motion was denied.
We affirmed that order in another unpublished opinion on
September 26, 2017 (B282684). We issued the remittitur in that
matter on November 30, 2017. Appellant did not file a petition
for review in the California Supreme Court, nor did he file a
petition for a writ of certiorari.
On April 9, 2018, appellant filed his “Motion for stay of Gun
Enhancement (Penal Code, 1385).” As indicated, the trial court
summarily denied the motion.
Appealability
Respondent correctly contends the trial court’s order is not
appealable because the trial court lacked jurisdiction to consider
the merits of appellant’s motion. We agree. The trial court had
no jurisdiction to grant relief pursuant to Senate Bill No. 620,
which amended section 12022.53, subdivision (h). As we explain,
the new amendment does not apply to final judgments. The trial
court’s order denying the motion is not appealable because it is
not an “order made after judgment, affecting the substantial
rights of the party.” (§ 1237, subd. (b).) The appeal is “irregular”
and will be dismissed. (§ 1248.)
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Senate Bill No. 620
When appellant was originally sentenced in 2009, the trial
court had no discretion to strike or dismiss a firearm use
enhancement. (People v. Arredondo (2018) 21 Cal.App.5th 493,
506 (Arredondo).) However, Senate Bill No. 620 amended the
statute, effective January 1, 2018, to give the trial court
discretion, in limited circumstances, pursuant to section 1385, to
strike a firearm enhancement in the interest of justice. (People v.
Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.) Subdivision
(h) of section 12022.53 now provides, “The court may, in the
interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (Ibid.)
The amendment applies to nonfinal judgments. (People v.
Woods (2018) 19 Cal.App.5th 1080, 1090.) By its plain language,
subdivision (h) “extends the benefits of Senate Bill 620 to
defendants who have exhausted their rights to appeal and for
whom a judgment of conviction has been entered but who have
obtained collateral relief by way of a state or federal habeas
corpus proceeding.” (Arredondo, supra, 21 Cal.App.5th at p. 507.)
This does not include appellant.
“‘[F]or the purpose of determining retroactive application of
an amendment to a criminal statute, a judgment is not final until
the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed. [Citations.]’ [Citation.]”
(People v. Vieira (2005) 35 Cal.4th 264, 306.) For appellant, that
time passed on September 13, 2011 which was the last day on
4
which he could have filed a petition for writ of certiorari from the
judgment of conviction in his murder case.
Appellant’s subsequent habeas petitions and motions do
not extend the date on which his judgment became final for
purposes of Senate Bill No. 620 because, although he sought it,
appellant did not “obtain[] collateral relief by way of a state or
federal habeas corpus proceeding.” (Arredondo, supra, 21
Cal.App.5th at p. 507.) Because he did not obtain collateral
relief, appellant was not eligible for “resentencing . . . pursuant to
any other law.” (§ 12022.53, subd. (h).) Section 12022.53,
subdivision (h), as amended by Senate Bill 620, does not apply.
The trial court correctly entered an order summarily denying the
sentencing request.
Conclusion
The appeal from the order denying appellant’s motion is
dismissed.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Mark E. Windham, Judge
Superior Court County of Los Angeles
______________________________
Sally Patrone Brajevich, under appointment by the Court of
Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General, Shezad H. Thakor, Deputy Attorney General,
for Plaintiff and Respondent.