Filed 2/3/16 P. v. Johnson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FREDERICK LEE JOHNSON,

Defendant and Appellant.

 B260641

 (Los Angeles County

 Super. Ct. No. TA058872)

APPEAL from an order of the Superior Court of Los Angeles County.

William C. Ryan, Judge. Conditionally reversed and remanded with directions.

Jonathan B. Steiner, Executive Director, Richard B. Lennon, California Appellate 

Project, under appointment by the Court of Appeal, for Defendant and Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Garett A. 

Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

Defendant Frederick Lee Johnson appeals from the order denying his petition for 

recall of his third strike sentence under the Three Strikes law (Three Strikes law; Pen. 

Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 and to be resentenced for a second 

strike pursuant to section 1170.126. 

 

1 All further section references are to the Penal Code. 

Section 1170.126 provides in pertinent part: “(a) The resentencing provisions 

under this section and related statutes are intended to apply exclusively to persons 

presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of 

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, 

whose sentence under this act would not have been an indeterminate life sentence.

“(b) Any person serving an indeterminate term of life imprisonment imposed 

pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of 

subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony 

or felonies that are not defined as serious and/or violent felonies by subdivision (c) of 

Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of 

sentence, within two years after the effective date of the act that added this section or at a 

later date upon a showing of good cause, before the trial court that entered the judgment 

of conviction in his or her case, to request resentencing in accordance with the provisions 

of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those 

statutes have been amended by the act that added this section. 

“¶] . . . [¶]

“(e) An inmate is eligible for resentencing if:

“(1) The inmate is serving an indeterminate term of life imprisonment imposed 

pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 

1170.12 for a conviction of a felony or felonies that are not defined as serious and/or 

violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

“(2) The inmate’s current sentence was not imposed for any of the offenses 

appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of 

subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of 

paragraph (2) of subdivision (c) of Section 1170.12. 

“(3) The inmate has no prior convictions for any of the offenses appearing in 

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or 

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. 

“(f) Upon receiving a petition for recall of sentence under this section, the court 

shall determine whether the petitioner satisfies the criteria in subdivision (e). If the 

petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced 

pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of 

subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that 

resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
3

Defendant contends the trial court erred in finding his conviction for shooting at 

an inhabited dwelling (§ 246), a serious felony, disqualified him for such Proposition 36 

relief, because his conviction in another count for possession of a firearm by a convicted 

felon (possession of firearm by felon; former § 12021, subd. (a)),2 may not be a 

disqualifying felony. He contends the order therefore must be reversed and the matter 

remanded to the trial court for an eligibility determination as to that count. Respondent 

concedes “the matter may be remanded for further eligibility determinations.”

We conclude their position is well-founded. Defendant would be eligible for 

Proposition 36 relief if his sentence of 25 years to life on his current conviction of 

possession of firearm by felon was not based on the disqualifying factor that he was 

“armed with a firearm” (§§ 667, subd.(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii),

1170.126, subd. (e)(2). As defendant points out and respondent acknowledges, the record 

does not reflect whether defendant was “armed with a firearm.” We shall conditionally 

reverse the order and remand the matter for the trial court to make a determination on this 

issue and, if the court finds he was not so armed, to determine whether resentencing 

would pose an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)). The 

order is affirmed if the court determines defendant was armed with a firearm. The order 

is reversed if the court makes negative determinations on these two issues.

BACKGROUND3

Defendant was informed his son Fred, a “‘Two Lefts’ gang” member, had been 

shot and killed in the front yard of defendant’s Lynwood house during a shootout by K-9, 

 

2 All further references to possession of firearm by felon are to former section 

12021, which is presently codified in section 29800. “Effective January 1, 2012, former 

section 12021(a) was repealed and reenacted without substantive change as section 

29800, subdivision (a). [Citation.]” (People v. White (2014) 223 Cal.App.4th 512, 518, 

fn. 2.) 

3 The following recital is based on this Court’s unpublished opinion (Aug. 24, 2004, 

B167215) on defendant’s appeal from the judgment and the clerk’s transcript in this 

appeal. 
4

a member of In Hood Crips, a rival gang. Subsequently, on November 19, 2000, 

defendant drove to a house where Kenneth Marshall, an In Hood gang member, lived. 

Although he knew Marshall had nothing to do with his son’s death, at about 4:45 a.m., 

defendant fired shots into the house, because “‘“[s]ometimes you have to kill somebody 

innocent to bring out who you really want.”’” No one was injured, but there were 

numerous bullet holes in the house and cars parked in the driveway. Three expended .45-

caliber shell casings and bullet fragments were recovered. 

Later that day, defendant and his girlfriend Tami Clark checked into a motel but 

“changed rooms, ending up in room 928.” After leaving the next day, defendant returned 

to the motel and told Clark to retrieve his gun, which he left in their room. A motel 

housekeeper, however, discovered the gun in the dresser of room 928, and the police 

were summoned. The police recovered “a loaded Glock model 30 .45-caliber 

semiautomatic” from a drawer. This gun had fired the recovered casings but not 

necessarily the bullets that had fragmented. The gun was the subject of the possession of 

firearm by felon charge. It was stipulated defendant had been previously convicted of a 

felony.

In the motel lobby, defendant told police he was not staying in room 928; rather, 

he and Clark had been visiting a friend there and asked if this person was in trouble. The 

officer responded no, adding he needed to talk to the room’s occupant. After the 

manager described that occupant, the officer went to speak with defendant but he had left. 

At trial, the manager could not identify defendant as the one he saw at the front desk that 

day. A female front desk employee testified she did not recall whether a man or woman 

tried to return to room 928 and did not recall seeing defendant that day at the motel. She 

did observe in defendant’s photograph a similarity she could not place.

The jury convicted defendant of shooting at an inhabited dwelling, with the 

personal use of a firearm (§§ 246, 12022.5, subd. (a); count 2) and possession of firearm 
5

by felon (former §12021, subd. (a)(1); count 3).4 The trial court found true defendant 

previously had been convicted of four prior felony convictions pursuant to the Three 

Strikes law and a prior serious felony (§ 667, subd. (a)) and he had served five prior 

prison terms (§ 667.5, subd. (b)). 

The trial court sentenced defendant to prison to consecutive sentences of 25 years 

to life under the Three Strikes law, one on count 2 (shooting at an inhabited dwelling) 

and the other on count 3 (possession of firearm by felon), plus the five years on the prior 

serious felony enhancement.5

We affirmed the judgment. (See fn. 3, ante.)

DISCUSSION

Proposition 36 (or the Act) became effective on November 7, 2012. (People v. 

Johnson (2015) 61 Cal.4th 674, 685 (Johnson).) “Prior to its amendment by the Act, the 

Three Strikes law required that a defendant who had two or more prior convictions of 

violent or serious felonies receive a third strike sentence of a minimum of 25 years to life 

for any current felony conviction, even if the current offense was neither serious nor 

violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) The Act 

amended the Three Strikes law with respect to defendants whose current conviction is for 

a felony that is neither serious nor violent. In that circumstance, unless an exception 

applies, the defendant is to receive a second strike sentence of twice the term otherwise 

provided for the current felony, pursuant to the provisions that apply when a defendant 

has one prior conviction for a serious or violent felony. (§§ 667, subd. (e)(2)(C), 

1170.12, subd. (c)(2)(C); see §§ 667.5, subd. (c) [list of violent felonies], 1192.7 [list of 

serious felonies], 1192.8 [additional serious felonies for purposes of § 1192.7].)

 

4 The information did not allege in committing the possession of firearm by felon 

offense defendant was armed with a firearm. The attempted murder charged in count 1 

was dismissed following a mistrial on that count. 

5 The court imposed and stayed the four-year personal firearm use enhancement on 

count 2 and stayed sentencing on the prior prison term findings. 
6

“The Act's exceptions to the new sentencing provisions relate to a defendant’s 

current offense and prior offenses. If the current offense involves controlled substances 

and specified findings are made concerning the quantity of controlled substances 

involved, or if the current offense is among specified sex offenses, a defendant with two 

or more strikes must be sentenced to a term of at least 25 years to life. (§§ 667, subd. 

(e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is also required 

if, ‘[d]uring the commission of the current offense, the defendant used a firearm, was 

armed with a firearm or deadly weapon, or intended to cause great bodily injury to 

another person.’ (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)” (Johnson, 

supra, 61 Cal.4th 674, 680-681, fns. omitted, italics added.)

Further, “the Act provides a procedure by which some prisoners already serving 

third strike sentences may seek resentencing in accordance with the new sentencing rules. 

(§ 1170.126.) ‘An inmate is eligible for resentencing if [¶] . . . [t]he inmate is serving an 

indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a 

conviction of a felony or felonies that are not defined as serious and/or violent . . . .’ 

(§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the new 

provisions, an inmate is disqualified from resentencing if any of the exceptions set forth 

in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are 

present. (§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, 

however, the rules governing resentencing provide that an inmate will be denied recall of 

his or her sentence if ‘the court, in its discretion, determines that resentencing the 

petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.126, 

subd. (f).)” (Johnson, supra, 61 Cal.4th 674, 682.) 

In Johnson, the Court clarified “the Act requires an inmate's eligibility for 

resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may 

obtain resentencing with respect to a three-strikes sentence imposed for a felony that is 

neither serious nor violent, despite the fact that the inmate remains subject to a third

strike sentence of 25 years to life.” (Johnson, supra, 61 Cal.4th 674, 688.) This holding 

is subject to the caveat the inmate’s eligibility for recall of his third strike sentence and 
7

resentencing as a second strike remain subject to certain disqualifying factors, including 

the fact the nonserious and/or nonviolent offense was committed while the inmate was 

“armed with a firearm” (§§ 667, subd.(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii),

1170.126, subd. (e)(2)) and that “resentencing of the [inmate] would pose an 

unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

Possession of firearm by felon (§ 12021, subd. (a)) is not a serious and/or violent 

felony (§§ 667.5, subd. (c) [list of violent felonies], 1192.7 [list of serious felonies], 

1192.8 [additional serious felonies for purposes of § 1192.7].) The record does not 

reflect affirmatively that defendant was “armed with a firearm” during that offense. 

(White, supra, 223 Cal.App.4th 512, 524 [constructive firearm possession sufficient].) 

DISPOSITION

The order denying the petition is conditionally reversed and the matter is 

remanded with directions to the trial court to make further eligibility determinations. The 

order is affirmed if defendant committed possession of a firearm by felon while “armed 

with a firearm.” The order is reversed with directions to grant the petition and hold 

further proceedings if the court finds defendant was not so armed and resentencing would 

not pose an unreasonable risk of danger to public safety.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.