People v. Johnston CA3

Filed 11/21/25 P. v. Johnston CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C101431

Plaintiff and Respondent, (Super. Ct. No. NCR58520)

v.

BRIAN LEE JOHNSTON,

Defendant and Appellant.

In 2002, a jury found defendant Brian Lee Johnston guilty of battery causing serious bodily injury and assault by force likely to produce great bodily injury. The trial court sentenced him to 25 years in state prison under the “Three Strikes” law as it existed at that time, and also imposed four one-year prior prison term enhancements under Penal Code1 section 667.5, subdivision (b). On appeal from his resentencing under section 1172.75, Johnston argues the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012

1 Undesignated statutory references are to the Penal Code.

1

(Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (Reform Act)) to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. He also contends the trial court should recalculate his custody credits on remand. The People concede both of these points. Johnston separately challenges the denial of his Romero2 motion, argues the trial court should have dismissed the strike priors under section 1385, subdivision (c), and asserts the trial court erred in failing to order a supplemental probation report. During the pendency of this appeal, our Supreme Court issued its opinion in People v. Superior Court (Guevara) (2025) 18 Cal.5th 838 (Guevara), holding a trial court is required to apply the Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety. As a result, we accept the People’s concession on this issue and the sentence calculations, vacate Johnston’s sentence, and remand for a full resentencing. BACKGROUND In 2002, Johnston pled guilty to battery causing serious bodily injury (§ 242/243 subd. (d)) and assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court also imposed four one-year prior prison term enhancements. (§ 667.5, subd. (b).) Johnston struck another inmate in the county jail from behind. The inmate slumped forward and hit his face on a table. When he tried to stand to defend himself, Johnston punched him in the face and jaw numerous times. Johnston fractured the victim’s jaw in three places. At his resentencing hearing, Johnston’s counsel asked the trial court to strike at least one of his prior strike convictions pursuant to Romero. He also requested that the trial court apply the revised penalty provisions of the Reform Act and resentence Johnston to two times the principal term (or eight years in state prison). Defense counsel