People v. Johnson

Filed 3/4/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B290213 (Super. Ct. No. SA066369) Plaintiff and Respondent, (Los Angeles County)

v.

WILLIE MERVYN JOHNSON,

Defendant and Appellant.

Senate Bill No. 620 does not automatically trigger resentencing for a prisoner who was previously found to have used a firearm in the commission of a felony. The Legislature has expressly limited the reach of newly enacted Penal Code § 12022.53, subd. (h). 1 A defendant serving a sentence pursuant to a “final” judgment, who asks for such relief, should receive a “summary denial.” (See People v. Romero (1994) 8 Cal.4th 728, 737.) The State of California has a “powerful interest in the finality of its judgments. . . . [P]articularly strong in criminal cases, for ‘[w]ithout finality, the criminal law is deprived of much

1 All statutory references are to the Penal Code.

of its deterrent effect.’ [Citations.]” (In re Harris (1993) 5 Cal.4th 813, 831.) The state certainly has a strong interest in deterring the use of firearms in the commission of a felony. Appellant contends that he is entitled to 1. be present in the trial court, 2. counsel, 3. de novo sentencing hearing, 4. present evidence, and 5. confront and cross-examine witnesses. These enumerated rights attach to an original sentence hearing. Unless and until the trial court issues an order in the nature of an order to show cause, a defendant has no “entitlement” to these rights. We affirm. 2 Facts and Procedural History Appellant shot and killed Tina Gatlin, his former girlfriend, on December 11, 2007. In 2009, appellant was convicted, by jury, of second degree murder. The verdict included a finding that the enhancement alleging use of a firearm was true. (§§ 187, 189, 12022.53, subd. (b).) The trial court sentenced appellant to a term in state prison of 15 years to life, plus a 10-year consecutive term for the firearm use. We affirmed his second degree murder conviction with the use of firearm finding enhancement in People v. Johnson, Mar. 29, 2011, B220820 [nonpub. opn.]. The California Supreme Court denied review on June 15, 2011 (S193001). Appellant’s time to file a petition for writ of certiorari in the United States Supreme Court expired on September 13, 2011. (Supreme Court Rules, rule 13.) Appellant is no stranger to seeking post sentence relief from final judgments. He has filed numerous petitions for writs