California Court of Appeal Apr 23, 2025 No. E083195Unpublished
Filed 4/23/25 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083195
v. (Super.Ct.No. SWF006315)
THOMAS DEWAYNE JOHNSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.
Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Thomas DeWayne Johnson appeals from the trial court’s
order denying his postconviction petition for resentencing. In a new argument raised for
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the first time on appeal, defendant contends the court did not understand it had
jurisdiction to address a resentencing claim presented in an obscure, jumbled fashion in
bar against sentence recall petitions, “ ‘[t]he defendant, however, may be able to “invite”
the court’s [own] consideration of the recall.’ (J. Couzens, Recall of Sentence, Penal
Code, § 1172.1 (Dec. 2023), at pp. 5-6.”
We conclude defendant’s premise that the court misunderstood its recall and
resentencing authority under section 1172.1 is unwarranted. “[R]emand is unnecessary if
the record is silent concerning whether the trial court misunderstood its sentencing
discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) “The general rule is
that a trial court is presumed to have been aware of and followed the applicable law”
(People v. Mosley (1997) 53 Cal.App.4th 489, 496) and the “presumption of regularity of
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judicial exercises of discretion appl[ies] to sentencing issues.” (Ibid.) “Error may not be
presumed from a silent record.” (Brown, at p. 1229.)
The court’s reference to its lack of “jurisdiction” in its written order does not aid
defendant because, as discussed supra, that was solely in relation to the absence of
CDCR action triggering resentencing under section 1172.75 concerning prison priors. It
manifestly had nothing to do with section 1172.1 or resentencing defendant on his nickel
priors. Defendant’s attempt to shoehorn in a claim of error on grounds that the trial court
misunderstood or was not aware of its sua sponte recall authority under section 1172.1
rests, at bottom, on the fact that the court did not expressly address the new statute. This,
however, “does not establish on [the] face [of the record] that the trial court
misunderstood the scope of [statutory] discretion.” (People v. Gutierrez (2009) 174
Cal.App.4th 515, 527.) To the contrary: “ ‘A judgment or order of the lower court is
presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.’ ”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
“ ‘Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal.’ ” (People v. McCullough (2013) 56 Cal.4th 589, 593.) It was thus incumbent on
defendant to press for a specific ruling regarding resentencing on his nickel priors, if he
desired one. (See generally People v. Ramirez (2006) 39 Cal.4th 398, 450 [defendant
must “request . . . a hearing or otherwise press for a ruling”]; see, e.g., People v. Vargas
(2022) 84 Cal.App.5th 943, 949, fn. 5 [although section 1172.6 petition included a
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request that the court strike a firearm enhancement, petitioner abandoned claim on appeal
because petitioner did not ensure superior court ruled on the request].)
Defendant was self-represented below, but this does not exempt him from
compliance with the general rules set forth above. We must treat a party who acts as his
own attorney like any other party and hold him to the rules of procedure applicable to all
litigants. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Accordingly,
defendant has forfeited his appellate claim of error.
DISPOSITION
The trial court’s ruling denying defendant’s resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's resentencing petition, holding that the defendant failed to establish that the trial court misunderstood its sentencing discretion and forfeited his claim by failing to press for a ruling in the trial court.
Issues
Whether the trial court misunderstood its sua sponte authority to recall a sentence under Penal Code section 1172.1.
Whether the defendant forfeited his claim of error by failing to obtain a specific ruling on his resentencing request in the trial court.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The general rule is that a trial court is presumed to have been aware of and followed the applicable law”
“defendant has forfeited his appellate claim of error.”