F iled 5/8/ 23 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered 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 OPINION 1

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

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

concedes tha t 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), 288 a , 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

. Th is 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) s ubmitted 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 t hat 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 invit ed

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

Secretary’s recall recommendation. O n September 27

, 2021, after both parties filed

papers, t he trial court denied recall of Johnson’s sentence without holding a hearing

. In a

written order, the court r

uled that although Senate Bill No. 1393 applied retroactively to

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

The court stated, “While this Court recognizes that a recommendation f rom 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 th e trial court’s order.

On appeal

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

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

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

4 Th e 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 th e provision to section 1172.1 without substantive change

. ( Assem. Bill No. 200, Stats. 2022, ch. 58

, § 9

. ) F or clarity, we cite sectio n 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 refer encing 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

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

similar circumstances th at “ ‘ 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 enhancem ents, even when

the judgment in the case is long since final

. . . . ’ [ C itations.] ” ( 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

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

No. 1393 did no t 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 t he 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 i s 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 a n unopposed m otion to a ugment the r ecord or

t o t ake j udicial n otice in c ase No. 203073 , seeking to augment the record with th e reporter’s transcripts of proceedings from the underlying jury trial and sentencing hearing. The se 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 motio n and order the record augmented with the transcripts attached to the motion

.4

defendants based on post

- judgment cha nges in the law that give courts discretion to strike

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

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

Johnson’s case.

D ISPO SITION

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 wi th

Penal Code section 1172.1._______________________________ Greenwood, P. J.

WE CONCUR:

_______________________________ Grover, J.

_______________________________ Danner, J.

People v. Johnson

H049600