People v. Johnson CA1/4

Filed 2/27/24 P. v. Johnson CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A166911 v. Solano County KALEB TOMMY JOHNSON, Super. Ct. Nos. FCR360120, Defendant and Appellant. FCR364306

MEMORANDUM OPINION1 Kaleb Tommy Johnson resolved two pending cases by pleading no contest to assault by means of force likely to produce great bodily injury in case No. FCR364306, and pleading no contest to possession of a firearm by a convicted felon as well as admitting a prior juvenile adjudication for possessing a firearm on school grounds in case No. FCR360120. As part of the negotiated dispositions, Johnson agreed to serve a total of four years and eight months in prison: an aggravated four-year term on the assault conviction and a consecutive eight-month term on the firearm possession conviction. The disposition also called for dismissal of the balance of

1 We resolve this case by memorandum opinion and provide a limited

factual summary. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851.)

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unresolved charges, dismissal of a third case (No. FCR362510), and a promise from the district attorney’s office not to file a fourth pending “firearm case” documented in a police report. At the sentencing hearing, the trial court imposed the stipulated sentence. Johnson appeals, contending his upper-term sentence on the assault conviction in case No. FCR364306 must be vacated and the matter remanded to the trial court for resentencing under Penal Code2 section 1170, subdivision (b) as amended by Senate Bill No. 567 (2020–2021 Reg. Sess.), which prohibits the imposition of an upper-term sentence unless there are aggravating circumstances either stipulated to by the defendant or found true by a jury or judge beyond a reasonable doubt.3 We requested and received supplemental briefing on whether Johnson’s failure to obtain a certificate of probable cause in case No. FCR364306 forecloses appellate review of this claim. We conclude it does, and we dismiss the appeal. We briefly explain the relevant factual background. On November 29, 2022, in case No. FCR364306, Johnson pleaded no contest to assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) Johnson’s written plea agreement provided for “[a] sentence to the high term of 4 years.” At the plea hearing, both defense counsel and Johnson stated in open court that Johnson agreed to a stipulated sentence of “a high term of