People v. Johnson CA3

Filed 3/14/24 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C098578

Plaintiff and Respondent, (Super. Ct. No. CRF120002056)

v.

ARTIES JOHNSON III,

Defendant and Appellant.

Defendant Arties Johnson III appeals from a postconviction order striking from his sentence the one-year enhancements imposed for the prior prison terms he served, pursuant to Penal Code1 section 1172.75 (formerly § 1171.1). Appointed counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436 asking this court to conduct an independent review of the record to determine whether there are any arguable issues on

1 Undesignated statutory references are to the Penal Code.

1

appeal. Although not required to independently review the record in these circumstances (see, e.g., People v. Delgadillo (2022) 14 Cal.5th 216, 226), we have done so because defendant was not notified that his failure to file a supplemental brief may result in dismissal of the appeal. (Id. at p. 233.) However, our discretionary review of the record reveals no arguable errors favorable to defendant. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2012, defendant struck the victim in the face multiple times with a closed fist, fracturing her eye socket. In 2013, a jury found defendant guilty of domestic violence with a prior domestic violence conviction (§ 273.5, subd. (a)) and found true that he personally inflicted great bodily injury in a domestic violence incident (§ 12022.7, subd. (e)). Defendant admitted a prior domestic violence conviction (§ 273.5, subd. (f)(1) [formerly subd. (e)(1)]), a prior strike conviction (§ 667, subd. (e)(1)), and a prior serious felony conviction (§ 667, subd. (a)), and further admitted that he had served five prior prison terms (former § 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of 23 years. In an unpublished decision, this court affirmed the judgment. (People v. Johnson (Sept. 28, 2015, C075995).) Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) amended section 667.5 “by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) made the change fully retroactive (Stats. 2021, ch. 728, § 1) and added former section 1171.1, now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.) This provision states that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” (§ 1172.75, subd. (a).) “The statute further establishes a mechanism to provide