1

Filed 11/30/21 P. v. Johns ton CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. TYLER RICHARD JOHNSTON, Defendant and Appellant. A161748

(Alameda County Super. Ct. No. H58431)

Defendant Tyler Richard Johnston appeals from an order denying his petition for resentencing under Proposition 47. (Pen. Code, § 1170.18, subd. (a).) 1 The trial court summarily denied defendant’s petition. Defendant’s
appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant , result in reversal of the order. ( People v.
Kelly (2006) 40 Cal.4th 106; People v. Wende (197 9 ) 25 Cal.3d 436.)

Defendant has been informed of his right to file supplemental briefing, and

he has not done so. After our independent review of the record, we find no
issues requiring further briefing, and we affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.2 D ISCUSSION 2 In February 2015, in a robbery gone wrong, defendant Tyler Johnston

backed a U

- Haul truck up over his cohort, victim Martin Thornton, killing him. The Alameda County District Attorney filed an information alleging one count of murder ( § 187, subd. (a)), as well as 10 prior convictions and five
prior prison terms. In April 2016, the defendant pleaded no contest to voluntary manslaughter ( § 192, subd. (a))

— a stipulat ed lesser offense of the murder

count in the information

— and admitted the third, fifth, seventh and eighth
prior convictions as true. 3 Two months later, the trial court sentenced defendant to an aggregate term of 15 years, comprised of an 11

- year princip al
term and four consecutive, one

- year enhancements for each of the prior
conviction enhancements. Defendant did not appeal his conviction, and it became final in August 2016.
In February 2017, in case Nos. H21294 and H12756, the trial court granted defendant’s petition to reduce two of defendant’s prior convictions to

misdemeanors pursuant to section 1170.18, subdivision (f) (Proposition 47)

. 4

2 We take judicial notice of the record in People v. Johnston , case No. A162030. (Evid. Code, §§ 452, 459.)

3 Prior No. 3 is for a 2004 violation of Vehicle Code sectio n 10851, subdivision (a)

— unlawful driving or taking of a vehicle; p rior No. 5 is for a 1998 violation of section 4530, subdivision (c)

— failure to return while involved in a release program ; and p rior No. 7 is for a 1995 violation of section 496, subdivision (a)

— receiving stolen property . Prior Nos. 3, 5, and 7 correspond with case No. H21294 . Prior No. 8 is for a 1989 violation of section 459

— second degree burglary

— in case No. H12756.

4 On November 4, 2014, California voters enacted Propositi on 47, the Safe Neighborhoods and Schools Act, which went into effect the following day. ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)3

These two prior convictions served as the basis for two of defendant’s

enhancements

— priors 7 and 8

— in the instant case (case No. H58 3 41).
Four months later, in case No. H58 3 41, defendant filed a petition for
resentencing under section 1170.18, subdivision (a)

. The court denied the
petition

. Four mon ths after the court denied the petition, defendant
attempted to appeal that ruling

, and the county clerk notified this court the
appeal was untimely . (See People v. Johnston (A152862) [untimely].) Defendant tried to challenge that ruling again by way of a second appeal in
March 2018, which this court dismissed as untimely. ( People v. Johnston (Apr. 25, 2018, A154015).)
In September 2019, in case No. H58 3 41, defendant filed a petition for
resentencing under section 1170.95 (Sen. Bill No. 1437 (2017

– 2018 Reg. Sess.) ). The court denied th is petition on the ground section 1170.95 is
inapplicable to manslaughter convictions. A week after the court denied th is
petition, d efendant filed a s econd petition for resentencing, again under

Senate Bill No. 1437 (2017

- 2018 Reg. Sess.)

. T he trial court denied th is petition for the same reason as the first . Defendant appealed. This court affirmed in July 2020. ( People v. Johnston (Jul. 29, 2020, A 158870) [nonpub. opn.].)
In October 2020, d efendant filed another petition for resentencing in

case No. H58341

, pursuant to section 1170.18, subdivision (a). In response to the question, “defendant in the above

- entitled criminal action, was convicted

of the following felony offenses that have now been reclassified as misdemeanors,” defendant wrote “192(a) and PC 667.5(b)(4).” He also wrote
on the form, under the marked boxed “RESENTENCING,” “striking 2 667.5b enhancements,” and “the following enhancement s have been reduced to4

misdemeanors per PC 1170.18a CS#H12756 CS#21294.” After a hearing, t he
court summarily denied the petition

. The instant appeal is from th at ruling. After an independent review of the record, we find no arguable
appellate issues. 5

The order is AFFIRMED.

5 Defendant also filed a petition for writ of habeas corpus seeking the same relief (No. A162905), which we de ny in a separate order filed concurrently with the instant opinion.5 _________________________ Banke, J.

We concur:

_________________________ Humes, P.J.

_________________________ Sanchez, J.

A1617 4 8/

A 162133, People v. Johnston