1

Filed 11/30/21 P. v. Johnston 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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 (1979) 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

DISCUSSION2

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 stipulated 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 principal

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 section 10851, 

subdivision (a)—unlawful driving or taking of a vehicle; prior No. 5 is for a 

1998 violation of section 4530, subdivision (c)—failure to return while 

involved in a release program; and prior 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 Proposition 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. H58341). 

Four months later, in case No. H58341, defendant filed a petition for 

resentencing under section 1170.18, subdivision (a). The court denied the 

petition. Four months 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. H58341, defendant filed a petition for 

resentencing under section 1170.95 (Sen. Bill No. 1437 (2017–2018 Reg. 

Sess.)). The court denied this petition on the ground section 1170.95 is 

inapplicable to manslaughter convictions. A week after the court denied this

petition, defendant filed a second petition for resentencing, again under 

Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied this

petition for the same reason as the first. Defendant appealed. This court 

affirmed in July 2020. (People v. Johnston (Jul. 29, 2020, A158870) [nonpub. 

opn.].)

In October 2020, defendant 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 enhancements have been reduced to 
4

misdemeanors per PC 1170.18a CS#H12756 CS#21294.” After a hearing, the 

court summarily denied the petition. The instant appeal is from that 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 deny in a separate order filed 

concurrently with the instant opinion. 
5

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Sanchez, J.

A161748/A162133, People v. Johnston