People v. Johnson CA2/6

Filed 6/28/23 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B325082 (Super. Ct. No. F439849) Plaintiff and Respondent, (San Luis Obispo County)

v.

NATHANIEL JOHNSON, JR.,

Defendant and Appellant.

Nathaniel Johnson, Jr., appeals from the trial court’s order denying his petition and motion to recall his sentence and resentence him pursuant to newly enacted legislation. We appointed counsel to represent him on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant filed a supplemental brief, in propria persona. We will dismiss the appeal for lack of jurisdiction.

Procedural Background1 In 2010, appellant was convicted by jury of three counts of robbery (Pen. Code, § 211)2, and one count of first degree residential burglary (§§ 459, 460, subd. (a)). On two of the robbery counts, the jury found true an allegation that appellant had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The trial court found true allegations of one prior serious felony conviction (§ 667, subd. (a)(1)), one prior prison term (§ 667.5, subd. (b)), and one prior serious or violent felony conviction within the meaning of California’s “Three Strikes” law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to state prison for 24 years, 8 months. We affirmed the conviction but modified appellant’s sentence. (People v. Johnson, supra, B223724.) In June 2022, appellant filed a petition, in propria persona, to recall his sentence pursuant to Senate Bill No. 81 (2021-2022 Reg. Sess.), which modified various sentencing provisions. The trial court appointed defense counsel who filed a motion to dismiss the enhancements imposed by the sentencing court. The People filed an opposition to defense counsel’s motion and argued that the trial court had no jurisdiction to recall appellant’s sentence because his case was final prior to the enactment of the new legislation and none of the requirements allowing jurisdiction for resentencing had been met.