Filed 6/7/24 P. v. Johnson CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RALPH CORNELIUS JOHNSON,

Defendant and Appellant.

 B327269

 (Los Angeles County

 Super. Ct. No. BA148587)

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephen A. Marcus, Judge. Affirmed.

Loyola Law School Juvenile Innocence & Fair Sentencing 

Clinic, Christopher Hawthorne and Jakob Meuser, for Defendant 

and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.

___________________________
2

Defendant Ralph Cornelius Johnson appeals from a 

resentencing order in which the trial court struck three one-year 

priors, but declined to strike Johnson’s third strike, which would 

have led to his immediate release from prison. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 28, 1999, a jury found Johnson guilty of four 

counts of possessing a check with intent to defraud (Pen. Code, 

§ 475) and one count receiving stolen property (Pen. Code, 

§ 496).1 The jury found Johnson had been convicted of two prior 

serious felonies for purposes of the Three Strikes law (§ 1170.12); 

specifically, he had been convicted in 1982 of attempted murder 

and attempted robbery. Because the check fraud was his third 

strike, he received a sentence of 28 years to life, comprised of four 

concurrent terms of 25 years to life plus three one-year prior 

prison enhancements under section 667.5, subdivision (b). The 

court stayed the sentence on the count for receiving stolen 

property. Johnson’s convictions were affirmed on direct appeal. 

(People v. Johnson, B133580 (May 11, 2000) [nonpub opn.].)

On February 9, 2022, Johnson filed a petition for 

resentencing under section 1172.75 (former section 1171.1)

requesting that the trial court strike his three one-year 

enhancements for prior prison terms and conduct a full 

resentencing. The trial court initially denied Johnson’s petition 

without a hearing or appointing counsel based on its belief that 

“there is no provision for a defendant to initiate the process” set 

forth in section 1172.75, and that the process had to be initiated 

by the department of corrections.

After Johnson obtained counsel and moved for 

reconsideration, the trial court recalled his sentence and 

1 All statutory references are to the Penal Code. 
3

scheduled the matter for a hearing. Johnson then filed a 

supplemental brief, in which he requested the court “exercise its 

discretion and resentence [Johnson] to a determinate sentence 

that would result in his release from prison.” The People filed 

their response to Johnson’s petition for resentencing, which 

contained various exhibits, including a recent “Comprehensive 

Risk Assessment” report written by forensic psychologist Wendy 

Chan, Psy.D. for the parole board, and transcript of the parole 

board hearing, including the testimony of Dr. Irvine.

In her report, Dr. Chan concluded that Johnson 

represented a “[h]igh risk for violence,” and that he “would 

benefit from showing continued compliance with his mental 

health treatment [and] developing additional coping strategies 

for managing criminality and negative emotions or increase in 

his symptoms.” Dr. Irvine, who had been meeting with Johnson 

at least once a month for about two years at that point, testified 

to the following: “My concern is that . . . since 2008 [Johnson] has 

been on [a mandatory medication] order and without that order 

in place, though I believe that he is making progress and it 

sounds like over the course of the last several years has made 

some strides, that temptation to stop that medication or even the

lack of insight as a result of his illness would be too difficult for 

him to overcome and that in all likelihood despite his voicing his 

desire and willingness to take the medicine that he may stop it. 

And then . . . the consequences would be very severe.” Dr. Irvine 

further explained that “in the past, [Johnson] has decompensated 

fairly significantly and severely off of medication, which has 

resulted in his inability to care for himself to the point where he 

has smeared feces on his cell believing that they would protect 

him against assassins. My concern is that off of medication that 
4

those types of behaviors would recur and that he may become 

hostile or aggressive or even a danger to himself.”

Johnson filed a reply.

The resentencing hearing was held on November 7, 2022.

Johnson’s counsel argued that because his four counts of 

possession of checks with intent to defraud cannot currently be 

charged as strikes, the court “should resentence him to those 

sentences without the strike, [which] would lead to a determinate 

term that would allow for immediate release.” The court rejected 

that argument. Counsel also argued that Johnson should be 

resentenced under section 1385, subdivision (c), which the court 

also rejected.

The court recognized that it had discretion to strike the 

strike under Romero. Johnson’s counsel argued that one of 

Johnson’s two strikes (attempted robbery and attempted murder) 

should be stricken because they occurred on the same occasion.

The court disagreed, observing that the crimes were “distinct,”

requiring “a different intent and a different act.”

The trial court then considered various factors: Johnson 

was convicted of “two violent strikes in 1982,” after which he was 

“sent back to prison on five separate years”; he had “been in 

prison almost his entire life”; Johnson was a “career criminal,”

who had been convicted in 1978 for a “hit and run” and “receiving 

stolen goods,” in 1979 for “receiving stolen property,” in 1982 for 

attempted murder and attempted robbery (the two strikes), 

which both “involved use of a weapon”; and while out on parole, 

he was charged with receiving stolen property, altering a driver’s 

license, forgery, and other parole violations.

The trial court acknowledged some factors that were 

favorable to Johnson, such as the lack of damage from and 
5

nonviolent nature of the most recent check fraud convictions, 

noting however it was not favorable to Johnson that the crime 

involved some level of sophistication. Johnson had also “failed to 

successfully complete probation or parole, basically any time in 

his life; this is a negative factor.” The court further noted that in 

the state prison, Johnson is “in a special program, [enhanced 

outpatient program],” and “not in [the] general population.”

Thus, the court reasoned, “[he] . . . has not shown, on some macro 

level, that he can follow rules and be medicine compliant in a 

normal, free-community setting.” He cited Dr. Chan’s report that 

“there was a high risk of violence if [Johnson] was not medically 

compliant.”

The trial court then turned to consideration of Johnson’s 

“background, character[,] and prospects,” some of which “are 

beneficial to [Johnson].” Citing People v. Strong (2001) 

87 Cal.App.4th 328 (Strong), the court stated “middle age 

considered alone does not remove a defendant from the spirit of 

the Three Strikes law. Otherwise, those criminals with the 

longest criminal records over the longest period of time would 

have a built-in argument that the very factor that takes them 

within the spirit of the Three Strikes law, a lengthy criminal 

career, has the inevitable consequences of making them older . . . 

that takes them outside the law’s spirit.” The court noted that 

“older people do commit crimes; they commit murders, they 

molest children. And, frankly, [Johnson], at 60, was still engaged 

in some kind of violent activity by attacking another inmate.”

Aside from the latter incident, which was due to mental illness, 

the fact that Johnson had largely been discipline-free in his 

recent history at prison was “a factor in his favor.” However, the 

court observed that Johnson’s overall “performance in state 
6

prison [has] been uneven and problematic”; for example, he had 

possessed a cell phone in 2010 and battered an inmate with a 

weapon in 2006.

The court then addressed Johnson’s “mental health 

problems, involving his schizophrenia and his future 

dangerousness if released,” which it noted “affects [its] 

assessment of [Johnson’s] background, character[,] and 

prospects.” Recognizing it was not “bound” by the parole board’s 

determinations, the court explained that it was considering the 

information and opinions underlying the parole board’s decision, 

including Dr. Chan’s report and Dr. Irvine’s testimony, because 

the people involved in the board’s decision were “in a much better 

position to evaluate his mental health problems.” The court 

concluded that Johnson’s “mental health condition weighs 

against striking [his] strike,” echoing Dr. Irvine’s concern that 

“there is a good chance that [Johnson] would stop taking his 

medication in his present state, because he has not yet developed 

the understanding of the need for the medication. The 

consequences of [him] not taking his medication, not receiving 

therapy, are very concerning to the court.” The trial court 

acknowledged various letters of support from family members 

and others, but observed “they are in many cases unrealistic and 

do not offer a comprehensive support system needed to assist 

[Johnson] with his ongoing problems. They are letters of love and 

express a hope that [he] is a changed man. None of the letters 

show any appreciation of [his] mental health problems.” After 

expressing “concern[]” about Johnson’s “prospects for a stable 

life,” the court stated that “there are no extraordinary 

circumstances, or even reasons, that would motivate a reasonable 

judge to grant his release. [Johnson] has a long and continuous 
7

criminal record. Several of the charges against [him] are serious 

and involve violence. While there are some mitigating factors 

that have developed since [his] original sentence, and I have 

considered them . . . they are mostly extrinsic to the three strikes 

scheme.”

The court declined to strike Johnson’s strike under Romero. 

After striking Johnson’s three one-year priors, the court imposed

a sentence of 25 years to life, the determinate portion of which 

Johnson had already served.

DISCUSSION

Johnson argues the trial court (1) committed legal error in 

refusing to consider dismissing his strike under section 1385, 

subdivision (c), and (2) abused its discretion in refusing to strike 

Johnson’s strike under Romero; Johnson also urges this court to 

(3) declare his sentence unconstitutional under California’s 

Constitution and (4) strike his 25-year-to-life sentence for his 

third strike under the California Racial Justice Act (§ 745). We 

address each argument in turn.2 

I. Section 1385, Subdivision (C) Does Not Apply to Prior 

Strike Convictions

We reject Johnson’s argument that the trial court 

committed legal error in refusing to consider dismissing 

Johnson’s strike under section 1385, subdivision (c), because that 

provision does not apply to strikes. “Whether the amendments to 

section 1385 apply to prior strike convictions is a question of 

2 We grant Johnson’s request for judicial notice of the 

memorandum redesignating his rule violation due to his mental 

illness and the order setting an expiration on the requirement 

that Johnson involuntarily submit to taking psychotropic 

medication. 
8

statutory interpretation which we review de novo.” (People v. 

Burke (2023) 89 Cal.App.5th 237, 242 (Burke).) 

Section 1385, subdivision (c) provides: 

“ ‘(1) Notwithstanding any other law, the court shall dismiss an 

enhancement if it is the furtherance of justice to do so, except if 

dismissal of that enhancement is prohibited by any initiative 

statute.’ ” (Burke, supra, 89 Cal.App.5th at p. 243.) The court in 

Burke observed that “[i]t is . . . well established that the Three 

Strikes law is not an enhancement; it is an alternative sentencing 

scheme for the current offense.” (Ibid.) Because “[t]he plain 

language of subdivision (c) of section 1385 applies only to an 

‘enhancement,’ and the Three Strikes law is not an 

enhancement,” subdivision (c) does not apply to the Three Strikes 

Law. (Id. at pp. 243-244.) 

Citing People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094-

1095 (Ortiz), Johnson urges that this issue is “contested.” He is 

mistaken. Ortiz did not address the issue, and every court that 

has, has agreed with Burke. (People v. McDowell (2024) 

99 Cal.App.5th 1147; People v. Dain (2024) 99 Cal.App.5th 399; 

People v. Olay (2023) 98 Cal.App.5th 60; People v. Cota (2023) 

97 Cal.App.5th 318; People v. Tilley (2023) 92 Cal.App.5th 771.) 

We join that chorus. We therefore have no occasion to analyze 

the factors a court should consider in exercising its discretion 

under section 1385, subdivision (c). 

II. The Trial Court Acted Within Its Discretion in 

Refusing to Strike Johnson’s Strike Under Romero

Under section 1385, subdivision (a) the trial court may, “in 

the furtherance of justice,” order an action to be dismissed. This 

authority includes the power “to strike prior felony conviction 

allegations in cases brought under the Three Strikes law.” 
9

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-

530.) We review a trial court’s refusal to strike a prior conviction 

for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 

376 (Carmony).) “[A] trial court does not abuse its discretion 

unless its decision is so irrational or arbitrary that no reasonable 

person could agree with it.” (Id. at p. 377.)

“[T]he Three Strikes initiative . . . was intended to restrict 

courts’ discretion in sentencing repeat offenders.” (Carmony, 

supra, 33 Cal.4th at p. 377.) “ ‘To achieve this end, “the Three 

Strikes law does not offer a discretionary sentencing choice, as do 

other sentencing laws, but establishes a sentencing requirement 

to be applied in every case where the defendant has at least one 

qualifying strike, unless the sentencing court “conclud[es] that an 

exception to the scheme should be made because, for articulable 

reasons which can withstand scrutiny for abuse, this defendant 

should be treated as though he actually fell outside the Three 

Strikes scheme.” ’ ” (Ibid.) 

Factors for the court to consider in determining whether 

“the defendant may be deemed outside the scheme’s spirit” such 

that he “should be treated as though he had not previously been 

convicted of one or more serious and/or violent felonies” are “the 

nature and circumstances of the defendant’s present and prior 

serious and/or violent felony convictions, and the particulars of 

his background, character, and prospects.” (People v. Williams

(1998) 17 Cal.4th 148, 161.) 

Johnson argues that “[t]here is no connection between 

whether [he] should have received [25] years to life . . . and the 

fact that he was recently denied parole,” and that the trial court 

“improperly considered . . . parole denial as the main reason for 

ruling against his Romero motion.” We disagree on both points. 
10

The trial court did not consider the mere fact Johnson had been 

denied parole. Rather, it considered the opinions of the 

psychiatrists who evaluated Johnson, upon which the parole 

board reasonably relied in making its decision. Dr. Chan 

concluded that Johnson presented a “[h]igh risk for violence,”

based in part on his “mental health symptoms and . . . poor 

response to treatment.” Similarly, Dr. Irvine expressed concern, 

based on Johnson’s history and mental illness, that if left to his 

own devices Johnson would stop taking his medication and “may 

become hostile or aggressive or even a danger to himself.” The 

trial court properly considered these reports in determining 

whether Johnson fell within the “spirit” of the Three Strikes law, 

one purpose of which is to “protect[] the public from criminals.” 

(People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329.) 

We similarly reject Johnson’s argument that the court 

“improperly used [Johnson’s] mental illness as an aggravating 

[rather than mitigating] factor.” Johnson cites California Rules 

of Court, rule 4.423 to support his argument. That rule lists as a 

“[c]ircumstance[] in mitigation”: that “[t]he defendant was 

suffering from a mental . . . condition that significantly reduced 

culpability for the crime.” (Cal. Rules Court, rule 4.423(b)(2).) 

The trial court did not consider defendant more culpable due to 

his mental illness; to the contrary, it expressed that it was “very 

sympathetic to [Johnson’s] position,” and acknowledged he had 

“difficulty of all kinds.” The court considered Johnson’s mental 

illness to be an aggravating factor only insofar as it caused him to 

be “a danger to the community.” This was proper. 

Relying on People v. Vargas (2014) 59 Cal.4th 635 (Vargas), 

Johnson urges that the trial court “failed to consider the fact that 

[his] two strike priors arose out of the same occasion as a 
11

mitigating factor.” We agree with the trial court that Vargas is 

distinguishable because the defendant in that case committed 

two crimes (robbery and carjacking) “that were based on . . . the 

same act (forcibly taking the victim’s car)” (id., at p. 645), 

whereas here, Johnson’s crimes of attempted murder and 

attempted robbery were not based on identical acts, despite 

having occurred on the same occasion. (See People v. Avila (2020) 

57 Cal.App.5th 1134, 1141, fn. 6 [drawing the same distinction].) 

Although Johnson is correct that a trial court may consider the 

fact that two crimes occurred on the same occasion, that fact does 

not in itself compel a trial court to strike a prior. (See ibid.) 

Nor are we convinced by Johnson’s arguments that the trial 

court “failed to give proper weight to [Johnson’s] age as a 

mitigating factor” or “to the nonviolent and victimless nature of 

[his] third-strike offense.” The trial court did consider these 

factors. Johnson’s belief that it should have given more weight to 

them falls short of showing the court’s “decision [was] so 

irrational or arbitrary that no reasonable person could agree with 

it,” as necessary to show an abuse of discretion. (Carmony, 

supra, 33 Cal.4th at p. 377 [“a ‘ “decision will not be reversed 

merely because reasonable people might disagree” ’ ”].) 

In denying Johnson’s Romero motion, the trial court 

considered various relevant factors, including some that weighed 

in Johnson’s favor. For example, it acknowledged Johnson’s 

check fraud did not ultimately cause anyone harm, that Johnson 

had loving and supportive family members who expressed their 

willingness to help him, and that Johnson did not have 

significant discipline issues in prison in the past 10 years. But 

the court also considered that Johnson had spent most of his life 

in prison, had committed numerous crimes over numerous years, 
12

including violent crimes, had violated parole each time he was 

released, had attacked another inmate at the age of 60 (due to his 

mental illness), and there were recent and multiple reports from 

experts opining that Johnson was dangerous. We are unable to 

conclude on this record that the trial court abused its discretion. 

III. Johnson’s Sentence Was Not Cruel or Unusual

Although Johnson has forfeited this constitutional claim by 

failing to raise it below (In re Sheena K. (2007) 40 Cal.4th 875, 

880-881), we exercise our discretion to consider its merits (Avila, 

supra, 57 Cal.App.5th at p. 1145, fn. 12). “ ‘Whether a 

punishment is cruel or unusual is a question of law for the 

appellate court, but the underlying disputed facts must be 

reviewed in the light most favorable to the judgment.’ ” (People v. 

Mantanez (2002) 98 Cal.App.4th 354, 358 (Mantanez); accord 

Avila, at pp. 1145-1146.)

“ ‘A punishment is cruel or unusual in violation of the 

California Constitution if “it is so disproportionate to the crime 

for which it is inflicted that it shocks the conscience and offends 

fundamental notions of human dignity.” ’ ” (Avila, supra,

57 Cal.App.5th at p. 1145; accord In re Palmer (2021) 10 Cal.5th 

959, 972 (Palmer).) “A claim of excessive punishment must 

overcome ‘a considerable burden’ [citation], and courts should 

give “ ‘the broadest possible discretion [citation] to the legislative 

judgment respecting appropriate punishment.’ ” (Id., at p. 972.) 

Courts reviewing excessiveness claims employ a threepronged analysis: (1) looking to the nature of the offense and the 

offender, with particular attention to the degree of danger both 

pose to society; (2) comparing the punishment with that which 

California imposes for more serious offenses; and (3) comparing 

the punishment with that prescribed in other jurisdictions for the 
13

same offense. (Palmer, supra, 10 Cal.5th at p. 973.) Where, as 

here, the defendant is a recidivist, it is generally not cruel or 

unusual to enhance his sentence based on his recidivist status. 

(Avila, supra, 57 Cal.App.5th at p. 1146; see Mantanez, supra, 

98 Cal.App.4th at p. 359 [appellate courts have consistently 

found Three Strikes law not cruel or unusual].) We must 

nonetheless consider whether “ ‘the ultimate punishment, all 

facts considered,’ ” is “disproportionate to the crime.” (Avila, at 

p. 1146.) 

Citing Avila, supra, 57 Cal.App.5th at page 1146, Johnson 

argues that “[p]ast offenses alone will not justify imposition of an 

enhanced sentence,” such that our focus must be on the most 

recent offense. That Johnson’s most recent strike was nonviolent

is a factor that weighs in his favor. However, we must consider 

not only the “nature of the offense,” but also the “nature of the 

offender.” (Ibid.) Our examination of the latter requires us to 

“take into account [Johnson’s] recidivist behavior.” (People v. 

Gray (1998) 66 Cal.App.4th 973, 992 (Gray).) In addition to 

having an extensive criminal history over the span of many 

years, including violent crimes and repeated parole violations,

Johnson has a mental illness (schizophrenia) that predisposes 

him to violent behavior. Johnson’s sentence is not 

disproportionate in view of these factors. (Gray, at pp. 992-993 

[defendant’s sentence of 25 years to life for attempted carjacking 

was not cruel or unusual in view of “his lengthy criminal history,”

“his recidivist behavior,” untreated “drug problem,” and 

“potential danger to the community”].) 

We are not persuaded by Johnson’s reliance on Carmony, 

supra, 17 Cal.App.4th 1066, in which the defendant received a 

third-strike sentence for failing to register as a sex offender 
14

within five days of his birthday. The defendant had not moved, 

so the authorities possessed his current address, and his failure 

to register was “a harmless violation of a regulatory 

requirement.” (Id. at pp. 1073, 1087.) Johnson’s third-strike 

offense is not an innocuous regulatory violation. Although he

was caught before he caused any actual harm, his crime involved 

a scheme to use stolen checks to defraud people. 

Johnson provides no argument with respect to the second 

and third factors (intra- and interjurisdictional comparisons),

and instead draws our attention to the Legislature’s continued 

rollback of “aggressive enhancement regimes under the view that 

such sentences are unjust.” Although accurate, this observation

is insufficient to meet Johnson’s “considerable burden” to show 

his sentence is cruel or unusual under the California 

Constitution. 

IV. Racial Justice Act 

The Racial Justice Act (§§ 745; 1473, subd. (f); 1473.6, subd. 

(a)(3)) prohibits convictions and sentencing based on race, 

ethnicity, or national origin (§ 745, subd. (a)). Pertinent here, “[a]

violation [of the Racial Justice Act] is established if the defendant 

proves, by a preponderance of the evidence, . . . [that a] longer or 

more severe sentence was imposed on the defendant than was 

imposed on other similarly situated individuals convicted of the 

same offense, and longer or more severe sentences were more 

frequently imposed for that offense on people that share the 

defendant’s race, ethnicity, or national origin than on defendants 

of other races, ethnicities, or national origins in the county where 

the sentence was imposed.” (§ 745, subd. (a)(4)(A).) 

A defendant asserting a violation of the Racial Justice Act 

“may file a motion pursuant to [section 745], or a petition for writ 
15

of habeas corpus . . . in a court of competent jurisdiction, alleging 

a violation of subdivision (a). For claims based on the trial 

record, a defendant may raise a claim alleging a violation of 

subdivision (a) on direct appeal from the conviction or sentence. 

The defendant may also move to stay the appeal and request 

remand to the superior court to file a motion pursuant to this 

section.” (§ 745, subd. (b).) “If a motion is filed in the trial court 

and the defendant makes a prima facie showing of a violation of 

subdivision (a), the trial court should hold a hearing.” (Id., 

subd. (c).)

Johnson requests that we remand this action and instruct 

the trial court to hold a hearing on his claim that “defendants of 

his race are and were much more likely to receive third-strike 

sentences,” and “to be charged with a felony when the underlying 

crime is a ‘wobbler.’ ” We recognize that when the order Johnson 

appeals from was issued, in November 2022, section 745 applied 

only “prospectively in cases in which judgment ha[d] not been 

entered prior to January 1, 2021.” (Former § 745, subd. (j), added 

by Stats. 2020, ch. 317, § 3.5.) Not until January 1, 2023, did the 

Racial Justice Act become applicable to “all cases in which 

judgment is not final.” (§ 745, subd. (j)(1).) These facts have not 

impacted Johnson’s ability to file a petition for habeas corpus

since January 1, 2023, when the law became applicable to him—

which he has not done. We decline to remand this matter for the 

trial court to conduct a hearing on the claimed violation because 

that is not consistent with the procedure prescribed by section 

745.
16

DISPOSITION

We affirm the order. 

LEE, J.*

WE CONCUR:

MOOR, Acting P. J.

KIM, J.

* Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.