People v. Johnson CA5

Filed 2/18/16 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F069412 Plaintiff and Respondent, (Super. Ct. No. F96569527-5) v.

DALE EUGENE JOHNSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Franson, J and Peña, J.

INTRODUCTION The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies to petition for resentencing. (Pen. Code1, § 1170.126 et seq.) If a petitioning offender satisfies the statute’s eligibility criteria, they are resentenced as a second strike offender, “unless the court, in its discretion, determines that resentencing would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Following the enactment of Proposition 36, defendant Dale Eugene Johnson filed a petition for resentencing. The trial court, however, found defendant statutorily ineligible for resentencing and denied the petition. Specifically, the trial court found that defendant was armed during the commission of his commitment offense—a conviction for unlawful possession of a firearm. On appeal, defendant contends: (1) the People failed to plead and prove the fact defendant was armed while unlawfully possessing a firearm; and (2) a conviction for unlawful possession of a firearm cannot disqualify an inmate from resentencing in the absence of an underlying felony to which the firearm possession is tethered. We affirm. FACTS On June 4, 1996, defendant, a convicted felon, was being escorted from a casino by security when he raised his shirt, displayed a handgun tucked inside the waistband of his pants, and warned security not to “mess” with him. Later that same night, a casino employee observed defendant breaking into another casino employee’s truck, and when he attempted to give chase, defendant attacked him. Police later apprehended defendant, and found him to be in possession of the same firearm he had displayed earlier to casino security.