People v. John CA3

Filed 8/20/24 P. v. John CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE,

Plaintiff and Respondent, C098603

v. (Super. Ct. No. CRF2001268)

CLAYTON ALTON JOHN,

Defendant and Appellant.

A jury convicted defendant Clayton Alton John of assault with a deadly weapon, making criminal threats, and possession of a concealed dirk or dagger. The trial court sentenced defendant to an indeterminate prison term of 25 years to life for making criminal threats, plus a determinate five years for a prior serious felony conviction

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and one year for personally using a knife. The trial court imposed additional terms and enhancements but stayed them under Penal Code section 654.1 This court affirmed the convictions but remanded for a full resentencing. (People v. John (Dec. 29, 2022, C094126) [nonpub. opn.].) On remand the trial court reduced a stayed term, struck a stayed enhancement, and otherwise imposed the same sentence. Defendant now contends the trial court should have dismissed all but one of the enhancements under Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721), and if his contention is forfeited for failure to assert Senate Bill 81 in the trial court, his trial counsel was ineffective. We conclude the Senate Bill 81 contention is forfeited and defendant has not established ineffective assistance of counsel. We will affirm the judgment. BACKGROUND In July 2020, defendant and the victim got into an argument at a gas station. Defendant pulled a knife and threatened to kill the victim. Defendant eventually left, and the victim called the police. In March 2021, a jury found defendant guilty on three counts of assault with a deadly weapon (§ 245, subd. (a)(1) -- counts 1 through 3), one count of making criminal threats (§ 422, subd. (a) -- count 5), and one count of possession of a concealed dirk or dagger (§ 21310 -- count 6). As to count 5, the jury found true that defendant personally used a knife. (§ 12022, subd. (b)(1).) The trial court separately found true that defendant had three prior strike convictions and three prior serious felony convictions. (§§ 667, subds. (a)-(i), 1170.12.) At the sentencing hearing, defendant moved to dismiss at least two of his prior strike conviction allegations pursuant to People v. Superior Court (Romero) (1996)