California Court of Appeal Sep 15, 2022 No. E078008Unpublished
Filed 9/15/22 In re Johnson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re KEANDRE MARKIE JOHNSON, E078008 on Habeas Corpus. (Super. Ct. No. RIF1310563)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Samuel Diaz,
Jr., Judge. Petition denied with directions.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
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I.
INTRODUCTION
Pursuant to a negotiated disposition, petitioner Keandre Johnson pleaded no 1 contest to first degree murder (Pen. Code, § 187, subd. (a) ; count 1) and attempted
murder (§§ 664/187; count 2). Johnson also admitted enhancement allegations attached
to counts 1 and 2, and admitted two prior serious or violent felony strike convictions
(§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). In return, the remaining counts
and enhancement allegations were dismissed. Johnson was sentenced to an aggregate
participation in a criminal street gang (§ 186.22, subd. (a); count 3), and unlawful
possession of a firearm (§ 29800, subd. (a); count 4). The information alleged as to the
murder charge that Johnson intentionally killed the victim, Jane Doe, while an active
gang member, with intent to benefit the gang (§ 190.2, subd. (a)(22)).
Both counts 1 and 2 alleged Johnson committed the crimes “willfully, unlawfully,
and with deliberation, premeditation, and malice aforethought.” As to both counts, the
People alleged in the information that a principal in the crime discharged a firearm
causing great bodily injury and/or death (§ 12022.53, subds. (d), (e)) and that the crime
was committed at the direction, in association, or for the benefit of a criminal street gang
(§ 186.22, subd. (b)(5)). As to count 2, attempted murder, the information alleged
2 Johnson’s request for judicial notice, filed on November 4, 2022, is granted pursuant Evidence Code sections 452, subdivision (d) and 459. Judicial notice is thus granted as to the following documents: (1) the reporter’s transcripts for hearings on July 6, 2018, and for August 3 and 6, 2018, in case no. E077423, and (2) the clerk’s transcript in case no. E077423.
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Johnson personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd.
(c)(8)). The People further alleged Johnson had two prior convictions (§§ 196.22, subd.
(a), 459, 186.22, subd. (a)), which qualified as serious felonies and strike priors (§§ 667,
subds. (a), (c), (e)(2)(A), 1170.12, subd. (b)(1)). One of the prior convictions also was
alleged as a prison prior (§ 667.5, subd. (b)).
On July 6, 2018, the parties signed and filed a plea agreement. Johnson agreed to
“waive any right to appeal” that he might have. He further pled guilty as to counts 1 and
2 charges and enhancements, and admitted the two alleged special priors. In return, the
prosecutor dismissed all remaining charges and enhancements. The written form plea
agreement stated that Johnson’s “maximum possible custody commitment for the
admitted charges and enhancements” was “Life without Parole.” The plea agreement
further stated that the “custody term will be Life Without Parole.”
During the plea hearing on July 6, 2012, the People announced they were
withdrawing their previously announced intent to pursue the death penalty. Johnson’s
attorney stated that Johnson understood that “ineffective assistance of counsel is never
waived. And he does waive all rights to direct appeal from the plea.” The People agreed
to dismiss counts 3 and 4 in exchange for Johnson (1) pleading guilty to counts 1 and 2;
(2) admitting all allegations related to counts 1 and 2 and his two prior convictions; and
(3) agreeing to a maximum sentence of life without the possibility of parole.
On August 3, 2018, the trial court sentenced Johnson on count 1, to life in prison
without the possibility of parole (LWOP), and 15 years-to-life and 25 years-to-life on the
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gang and firearm allegations, respectively. The court ordered the enhancement terms to
run consecutive to each other but concurrent with the LWOP term.
As to count 2, the court sentenced Johnson to seven years to life in prison, and 15
years-to-life and 25 years-to-life on the gang and firearm allegations, respectively. The
court ordered the enhancement terms to run consecutive to each other but concurrent with
the count 1, LWOP term. The court also imposed various fines and fees.
On August 6, 2018, the trial court held a second sentencing hearing to address
overlooked sentencing matters regarding the concurrent sentence on count 2. The court
clarified that the section 12022.7, subdivision (a) allegation was stayed under section 654
because of the court imposing sentencing on the section 12022.53 allegation. The court
also stayed the section 12022.53, subdivision (e) allegation under section 654 because of
the court imposing sentencing on the section 12022.53, subdivision (d) allegation.
Johnson did not appeal the judgment within 60 days, resulting in the judgment becoming
final.
In June 2020, Johnson sent the trial court a letter stating that the victim of the
count 2, attempted murder offense did not die and the charge was “trumped up.” Johnson
also asserted he received ineffective assistance of counsel and felt pressured to sign the
plea agreement. The trial court reviewed the letter and took no action on it.
A year later, on July 15, 2021, Johnson filed a notice of appeal (case no.
E077423). The notice of appeal states Johnson was appealing a July 2, 2021 order,
although there does not appear to be any such order. The notice of appeal further states
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the appeal is based on the denial of a motion to suppress evidence but there does not
appear to have been any such motion.
A few months later, on November 4, 2021, Johnson filed his Petition. This court
ordered the appeal and Petition considered at the same time for the sole purpose of
determining whether an order to show cause should issue. His attorney also filed an
opening appellate brief under People v. Wende (1979) 25 Cal.3d 436, stating no arguable
issues could be found. Johnson did not file a supplemental brief. On February 1, 2022,
this court dismissed the appeal as untimely, noting Johnson had filed a related habeas
petition, which the court said was a more appropriate means of seeking relief.
On February 2, 2022, this court issued an order to show cause on the Petition.
Respondent Patrick Covello, Warden of Mule Creek California State Prison, filed a return
to the Petition, and Johnson filed a traverse to the return.
III.
HABEAS CORPUS PROCEDURE
“Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden initially to
plead sufficient grounds for relief, and then later to prove them. ‘For purposes of
collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction
and sentence; defendant thus must undertake the burden of overturning them. Society’s
interest in the finality of criminal proceedings so demands, and dues process is not
Where, as here, “‘there are no disputed factual questions as to matters outside the
trial record, the merits of a habeas corpus petition can be decided without an evidentiary
hearing.’ [Citations.]” (People v. Duvall, supra, 9 Cal.4th at pp. 478-479.)
IV.
SENTENCING CHALLENGE
Johnson contends in his Petition that his sentence on count 2 is an unlawful,
unauthorized sentence because it violates his plea agreement, in which Johnson agreed to
a maximum sentence of life without the possibility of parole.
Johnson attached to his traverse his own declaration stating the following facts: He
understood that under the plea agreement, he pled guilty in count 2 to attempted murder
with deliberation and premeditation; he understood that under the plea agreement, he
would be sentenced to a maximum prison term of life without the possibility of parole,
with the additional prison terms running concurrent to his LWOP sentence; and he was
unaware until June 2020, that his sentence violated the plea agreement. Respondent
argues Johnson’s Petition is barred as untimely. Johnson disagrees in his traverse but,
nevertheless, withdraws his Petition contentions, other than as to the clerical errors in the
amended abstract of judgment.
Respondent states in his traverse that “Petitioner does not dispute that the
punishment for enhancements may run consecutively to the punishment for the count to
which it relates or that the goal of concurrent sentencing was achieved in this case by
running the punishment for the substantive offense in count 2 plus its enhancements
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concurrently with the punishment in count 1. In consideration of these
acknowledgments, Respondent’s waiver argument has become moot.”
We agree that respondent’s waiver argument is moot because Johnson has
conceded that his Petition challenges to the sentence on count 2 are meritless, as is the
related IAC contention. Therefore, we need only address the sole remaining matter of
several abstract of judgment errors, which require correction upon remand.
V.
ABSTRACT OF JUDGMENT
The parties agree, as do we, that the amended abstract of judgment contains the
following errors, which should be corrected:
1. Line 5 of the amended abstract states that Johnson’s sentence on count 1 is
life with the possibility of parole. This is incorrect. Instead of checking the line 5 box,
the line 4 box should be checked for count 1, which imposes the term of life without the
possibility of parole (line 4), as was imposed during the sentencing hearing. As
respondent notes, line 5 should refer to count 2, not count 1.
2. Line 6b of the amended abstract states that Johnson was sentenced to 25
years-to-life on an unspecified count. The sentence on Line 6b should be vacated
because during sentencing, the trial court did not impose a 25 years-to-life sentence on
either count 1 or count 2.
3. The box adjacent to line 2 states that the court imposed separate consecutive
terms on both counts 1 and 2, totaling 40 years-to-life as to each count for the
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enhancements under sections 186.22, subdivision (b)(5) and 12022.53, subdivision (d).
During the sentencing hearing, the court ordered aggregate enhancement sentences to run
consecutive to each other on each count, but concurrent, not consecutive, to the sentences
on count 1 and 2. The amended abstract erroneously states that the entirety of the
sentence on count 2 was ordered to run consecutive to the count 1, LWOP term. The
amended abstract should be changed to reflect that the sentence on the count 2, including
enhancements and priors, is imposed concurrent to the sentence on count 1.
4. Line 8 of the amended abstract states that Johnson was sentenced for his two
priors under sections 667 and 1170.12 Although the plea agreement states Johnson
admitted the priors, the plea agreement does not specify a sentence for them and the trial
court did not order any sentence for the two priors under sections 667 and 1170.12. The
line 8 allegation of the amended abstract, stating that Johnson was sentenced under
sections 667 and 1170.12, should be vacated unless the trial court on remand imposes a
sentence for the priors.
Respondent agrees, as does this court, that these clerical errors in the amended
abstract should be corrected. The court may correct clerical errors any time, and the
appellate court should order the trial court to correct an abstract of judgment that does not
accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001)
26 Cal.4th 181, 183, 185, 188.) This court accordingly orders the trial court on remand to
correct the amended abstract of judgment to accurately reflect the trial court’s sentencing
orders.
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VI.
DISPOSITION
Because the amended abstract of judgment does not conform to the sentence the
trial court pronounced during Johnson’s sentencing hearing, this matter is remanded to
the trial court with directions to correct the above-mentioned clerical errors in the August
10, 2018, amended abstract of judgment. In all other respects, the Petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court denied the petition for writ of habeas corpus regarding the petitioner's sentencing and ineffective assistance of counsel claims, but remanded the matter to the trial court with directions to correct clerical errors in the amended abstract of judgment.
Issues
Whether the petitioner's sentence on count 2 violated the plea agreement and constituted an unauthorized sentence.
Whether the petitioner received ineffective assistance of counsel.
Whether the amended abstract of judgment contains clerical errors requiring correction.
Disposition. remanded
Quotations verified verbatim against the opinion
“In all other respects, the Petition is denied.”
“This court accordingly orders the trial court on remand to correct the amended abstract of judgment to accurately reflect the trial court’s sentencing orders.”