Filed 5/8/23 P. v. Johnson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND LEON JOHNSON,

Defendant and Appellant.

 H049600

 (Santa Clara County

 Super. Ct. No. 203073)

MEMORANDUM OPINION1

Raymond Leon Johnson appeals from the trial court’s order denying recall of his 

sentence pursuant to Penal Code section 1170, subdivision (d).2 The Attorney General 

concedes that the order must be reversed and the matter remanded for reconsideration in 

light of section 1172.1. We accept the Attorney General’s concession and remand.

In 1998, a jury convicted Johnson of rape, forcible oral copulation, and failing to 

register as a sex offender.3 (§§ 261, subd. (a)(2), 288a, subd. (c), 290, subd. (g)(2).) The 

trial court thereafter found true the allegation that Johnson had previously been convicted 

of a serious felony, pursuant to section 667, subdivision (a). The trial court sentenced 

1 We resolve this case by memorandum opinion under California Standards of 

Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 

847, 853-855.) 

2 Subsequent undesignated statutory references are to the Penal Code unless 

otherwise indicated.

3 The facts of the offense are immaterial to this appeal. 
2

Johnson to a total term of 105 years to life in prison. This sentence included a five-year 

consecutive term for the serious felony enhancement. Johnson’s conviction and sentence 

were affirmed on appeal. (People v. Johnson (Oct. 7, 1999, H018720) [nonpub. opn.].)

In February 2020, the Secretary of the California Department of Corrections and 

Rehabilitation (the Secretary) submitted a letter to the trial court, recommending that it 

recall Johnson’s sentence under former section 1170, subdivision (d).

4 The letter

referenced a legislative change to section 1385 that granted trial courts the discretion to 

dismiss a prior serious felony enhancement in furtherance of justice.5

The trial court appointed the public defender to represent Johnson and invited

Johnson to submit any materials that he wished the court to consider in light of the 

Secretary’s recall recommendation. On September 27, 2021, after both parties filed 

papers, the trial court denied recall of Johnson’s sentence without holding a hearing. In a 

written order, the court ruled that although Senate Bill No. 1393 applied retroactively to 

cases that were not yet final, Johnson’s case was final, making him ineligible for relief. 

The court stated, “While this Court recognizes that a recommendation from the Secretary 

of the CDCR provides a court with the authority to recall a sentence, the Court declines 

to use that authority in a manner that is inconsistent with the law.” Johnson timely 

appealed from the trial court’s order.

On appeal, Johnson argues that the trial court erred by concluding that Senate Bill 

No. 1393 did not apply retroactively to his case. The Attorney General concedes this 

point and agrees that we should reverse and remand this matter for the trial court to 

4 The Legislature subsequently amended the recall and resentencing provision of 

section 1170, subdivision (d), to section 1170.02. (Assem. Bill No. 1540, Stats. 2021, ch. 

719, §§ 1-7.) It later renumbered the provision to section 1172.1 without substantive 

change. (Assem. Bill No. 200, Stats. 2022, ch. 58, § 9.) For clarity, we cite section

1172.1 to refer to the current version of the recall and resentencing provision, and 

“former section 1170(d)” to refer to the provision as it existed prior to recent legislation. 

5 Though not expressly cited, it is clear from context that the Secretary was

referencing Senate Bill No. 1393. (Senate Bill No. 1393, Stats. 2018, ch. 1013, §§ 1, 2.)
3

consider the Secretary’s recommendation pursuant to section 1172.1. The Attorney 

General’s concession is well-taken.6 

In People v. E.M. (2022) 85 Cal.App.5th 1075 (E.M.), this court found under 

similar circumstances that “ ‘upon the recommendation of the Secretary of CDCR . . .

trial courts have the authority to recall and resentence defendants based on post-judgment 

changes in the law giving courts discretion to strike or dismiss enhancements, even when 

the judgment in the case is long since final. . . .’ [Citations.]” (E.M., supra, at p. 1090.)

In that case too, the trial court denied recall of E.M.’s sentence, finding that while Senate 

Bill No. 1393 applied retroactively to cases that were not yet final, E.M. was ineligible 

for relief because his case was final. (Id. at p. 1081.) In reversing the order, we

concluded that the trial court erred by denying recall on the premise that Senate Bill 

No. 1393 did not apply to E.M.’s case because it was final. (Id. at p. 1090.) We agreed 

with several other courts and held that finality of a defendant’s conviction did not 

preclude a trial court from applying ameliorative enactments when undertaken upon the 

recommendation of the Secretary. (Ibid.)

As in E.M., the Secretary here recommended recall of Johnson’s sentence based 

on Senate Bill No. 1393, and the trial court denied recall on the same erroneous ground—

namely that Senate Bill No. 1393 did not apply retroactively to Johnson’s case because it 

was final at the time of the recall recommendation. Johnson is entitled to have the trial 

court consider the Secretary’s recommendation based on the ameliorative effect of Senate 

Bill No. 1393—“regardless of the date of the offense of conviction”—because upon the 

recommendation of the Secretary, trial courts have the authority to recall and resentence 

6 The Attorney General also filed an unopposed motion to augment the record or 

to take judicial notice in case No. 203073, seeking to augment the record with the 

reporter’s transcripts of proceedings from the underlying jury trial and sentencing 

hearing. These transcripts were a part of the trial court’s original proceedings but were 

certified destroyed as of November 2009. We grant the Attorney General’s motion and 

order the record augmented with the transcripts attached to the motion. 
4

defendants based on post-judgment changes in the law that give courts discretion to strike 

or dismiss enhancements. (E.M., supra, 85 Cal.App.5th at p. 1090.) The trial court erred 

in denying recall on the ground that Senate Bill No. 1393 did not apply retroactively to 

Johnson’s case. 

DISPOSITION

The order denying recall is reversed, and the matter is remanded to the trial court 

to consider whether to recall Johnson’s sentence and resentence him in accordance with 

Penal Code section 1172.1. 
_______________________________

 Greenwood, P. J.

WE CONCUR:

_______________________________

 Grover, J. 

_______________________________

 Danner, J. 

People v. Johnson

H049600