People v. Johnson CA6

Filed 5/8/23 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049600 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 203073)

v.

RAYMOND LEON JOHNSON,

Defendant and Appellant. MEMORANDUM OPINION 1 Raymond Leon Johnson appeals from the trial court’s order denying recall of his sentence pursuant to Penal Code section 1170, subdivision (d). 2 The Attorney General concedes that the order must be reversed and the matter remanded for reconsideration in light of section 1172.1. We accept the Attorney General’s concession and remand. In 1998, a jury convicted Johnson of rape, forcible oral copulation, and failing to register as a sex offender.3 (§§ 261, subd. (a)(2), 288a, subd. (c), 290, subd. (g)(2).) The trial court thereafter found true the allegation that Johnson had previously been convicted of a serious felony, pursuant to section 667, subdivision (a). The trial court sentenced

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) 2 Subsequent undesignated statutory references are to the Penal Code unless

otherwise indicated. 3 The facts of the offense are immaterial to this appeal.

Johnson to a total term of 105 years to life in prison. This sentence included a five-year consecutive term for the serious felony enhancement. Johnson’s conviction and sentence were affirmed on appeal. (People v. Johnson (Oct. 7, 1999, H018720) [nonpub. opn.].) In February 2020, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) submitted a letter to the trial court, recommending that it recall Johnson’s sentence under former section 1170, subdivision (d).4 The letter referenced a legislative change to section 1385 that granted trial courts the discretion to dismiss a prior serious felony enhancement in furtherance of justice. 5 The trial court appointed the public defender to represent Johnson and invited Johnson to submit any materials that he wished the court to consider in light of the Secretary’s recall recommendation. On September 27, 2021, after both parties filed papers, the trial court denied recall of Johnson’s sentence without holding a hearing. In a written order, the court ruled that although Senate Bill No. 1393 applied retroactively to cases that were not yet final, Johnson’s case was final, making him ineligible for relief. The court stated, “While this Court recognizes that a recommendation from the Secretary of the CDCR provides a court with the authority to recall a sentence, the Court declines to use that authority in a manner that is inconsistent with the law.” Johnson timely appealed from the trial court’s order. On appeal, Johnson argues that the trial court erred by concluding that Senate Bill No. 1393 did not apply retroactively to his case. The Attorney General concedes this point and agrees that we should reverse and remand this matter for the trial court to