People v. Johnson CA4/1

Filed 8/18/15 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G049575

v. (Super. Ct. No. 96CF0718)

TREVOR ANTHONY JOHNSON, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Trevor Anthony Johnson is currently serving an indeterminate life sentence under the “Three Strikes” law. He appeals the denial of his Proposition 36 petition for resentencing on the grounds the trial court did not allow him the opportunity to challenge the constitutionality of his prior strike convictions. However, as we explain, Proposition 36 does not contemplate such a challenge, nor does the Constitution require that appellant be provided one in this proceeding. Therefore, the trial court properly denied his petition for resentencing. FACTUAL AND PROCEDURAL BACKGROUND In 1998, appellant was convicted by an Orange County jury of committing battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)1 In addition, the trial court found appellant had suffered three prior strike convictions – for residential burglary, forcible rape and forcible oral copulation – all of which were based on a guilty plea appellant entered in a case arising out of Los Angeles in 1989.2 Accordingly, the trial court sentenced him to 25 years to life under the Three Strikes law. (§§ 667, subds. (d)-(e)(2), 1170.12, subd. (b)-(c)(2).) The court also enhanced appellant’s sentence one year, based on his having served a prior prison term. (§ 667.5, subd. (b).) In November 2012, the voters passed Proposition 36, which amended the Three Strikes law to allow for discretionary resentencing in some cases in which third- strike sentences had been imposed. (§ 1170.126; People v. Johnson (2015) 61 Cal.4th 674.) Although Proposition 36 does not apply if the defendant’s commitment offense was for a serious or violent felony (§ 1170.126, subd. (e)(1)), or the defendant has suffered a prior conviction for a sexually violent offense (§§ 1170.126, subd. (e)(3), 667, subd. (e)(2)(C)(iv)(I), 1170, subd. (c)(2)(C)(iv)(I)), appellant petitioned the Orange County Superior Court to recall his sentence and resentence him to a determinate prison term. In so doing, he alleged his commitment offense – battery with serious bodily injury