People v. Johnson CA2/6

Filed 4/26/23 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B321850 (Super. Ct. No. 1411285) Plaintiff and Respondent, (Santa Barbara County)

v.

PHILLIP JOSEPH JOHNSON,

Defendant and Appellant.

Phillip Joseph Johnson appeals the order of the trial court denying his petition for resentencing pursuant to Penal Code section 1172.61 (former section 1170.95).2 We appointed counsel to represent appellant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we independently review the record, citing People

1 All further statutory references are to the Penal Code.

Effective June 30, 2022, section 1170.95 was renumbered 2 section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

v. Flores (2020) 54 Cal.App.5th 266. Alternatively, counsel asks this court to follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant filed his own supplemental brief, in propria persona. We affirm. Facts and Procedural Background3 In an information filed in June 2013, appellant was charged with murder after he admitted to stabbing 64-year-old Asta E. in the neck with a knife he had taken from the kitchen, killing her. (§ 187, subd. (a).) The information also alleged appellant personally used a knife (§ 12022, subd. (b)(1)), and suffered a prior prison term for a felony conviction (§ 667.5, subd. (b)). In July 2013, appellant pleaded guilty to second degree murder and admitted the special allegations. The plea form included a “Written Stipulation of Factual Basis,” which read, “On May 30 2012 I entered the bedroom of [Asta E.] with malice aforethought, and killed without lawful excuse [Asta E.] with a knife [sic].” The plea form also indicated that the trial court could consider the preliminary hearing transcripts and police reports as proof of the factual basis for the plea. The trial court found appellant guilty and the enhancements to be true and sentenced him to the agreed-upon punishment of 17 years-to-life in state prison. In May 2022, appellant filed, in propria persona, a form petition for resentencing pursuant to section 1172.6. After appointment of counsel and an opportunity for the parties to provide briefing, the trial court summarily denied the petition.