People v. Johnson CA2/1 ( 2021 )

Filed 1/4/21 P. v. Johnson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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This opinion has not been certified for publication or ordered published for purposes of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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306930
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA035569)
v.
NATHANIEL JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Edmund Willcox Clarke, Jr., Judge. Appeal dismissed.
Nathaniel Johnson, in pro. per.; and Richard B. Lennon,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Nathaniel Johnson appeals from an order denying
his petition for a writ of habeas corpus. Because the order
is nonappealable, the appeal is dismissed.
I.
In 1998 Nathaniel Johnson was convicted by plea of
receiving stolen property (Pen. Code,1 § 496, subd. (a)) and
carjacking (§ 215, subd. (a)), and he admitted using a firearm
in the commission of the carjacking. (§ 12022.5, subd. (a).)
The court sentenced him to 10 years 8 months in prison.
In 2010, a jury convicted Johnson of three counts of
second degree robbery (§ 211) and one count of first degree
residential burglary (§ 459). The jury also found true
allegations that he personally used a deadly weapon in the
commission of two of the robbery counts. (§ 12022, subd. (b)(1).)
Based on the 1998 conviction, the court found that he had
served a prior prison term (§ 667.5, subd. (b)), he had been
convicted of a prior serious felony (§ 667, subd. (a)(1)), and
he had been convicted of a serious or violent felony within the
meaning of the “Three Strikes” law. (§§ 1170.12, subds. (a)–(d),
667, subds. (b)–(i).) The court sentenced him to 24 years
8 months in prison. On appeal from that judgment, Division Six
of this court modified the judgment by striking the one-year
enhancement imposed under section 667.5, subdivision (b), and
affirmed the judgment as modified. (People v. Johnson (May 16,
2011, B223724) [nonpub. opn.].)
On May 12, 2020, Johnson filed a petition for writ of
habeas corpus in the superior court. He alleged that when he
1Subsequent unspecified statutory references are to the
Penal Code.
2
entered into his plea bargain in 1998 he was unaware that his
conviction would constitute a strike and that it could be used to
increase his sentence if he was subsequently convicted of other
crimes. He asserts that if he had been aware of that fact, he
would not have entered into the plea bargain. He requested
the court strike his prior convictions, recall his sentence, and
resentence him.
Johnson relied on section 1016.8, which the Legislature
added in 2019.2 (Stats. 2019, ch. 586, § 1, pp. 5223–5224.)
The statute’s operative provisions state: “A plea bargain
that requires a defendant to generally waive unknown future
benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may occur after
the date of the plea is not knowing and intelligent” (§ 1016.8,
subd. (a)(4); and “[a] provision of a plea bargain that requires
a defendant to generally waive unknown future benefits of
legislative enactments, initiatives, appellate decisions, or other
changes in the law that may retroactively apply after the date
of the plea is void as against public policy” (§ 1016.8, subd. (b)).
On May 14, 2020, the superior court denied Johnson’s
petition. Johnson filed a timely notice of appeal.3
2Johnson refers to section 1016.8 as “AB 1618,” a
reference to the assembly bill that enacted the statute.
3 The superior court filed Johnson’s notice of appeal on
July 20, 2020, ostensibly rendering the appeal untimely. Our
record indicates, however, that Johnson mailed his notice of
appeal from prison on June 18, 2020, well within the 60-day
filing period. (Cal. Rules of Court, rules 8.25(b)(5), 8.308(a).)
The notice was therefore timely.
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II.
We appointed counsel for Johnson, who filed a brief
raising no issues and requesting that we follow the procedures
set forth in People v. Serrano (2012) 211 Cal.App.4th 496.
Counsel provided Johnson with a copy of the record and his
brief, and informed Johnson that he had the right to file a
supplemental brief. Counsel stated that he remains available
to brief any issues upon our request.
Johnson filed a supplemental brief in which he argues
that he was misled into entering into his 1998 plea bargain
and, under section 1016.8, a plea bargain that is not made
knowingly, intelligently, and voluntarily is void as against
public policy.
III.
An order denying a petition for a writ of habeas corpus in
a noncapital case is not appealable. (Robinson v. Lewis (2020)
9 Cal.5th 883, 895.) A “prisoner whose petition has been denied
by the superior court can obtain review of his claims only by
the filing of a new petition in the Court of Appeal.” (In re Clark
(1993) 5 Cal.4th 750, 767, fn. 7.) Because Johnson’s appeal is
from an order denying his petition for a writ of habeas corpus,
we do not have jurisdiction to review the order.
We have discretion to deem an appeal from the denial
of a petition for writ of habeas corpus to be an original habeas
petition filed in this court. (See People v. Gallardo (2000) 77
Cal.App.4th 971, 986; People v. Garrett (1998) 67 Cal.App.4th
1419, 1423.) We decline to exercise that discretion here because
section 1016.8, upon which Johnson based his petition, does not
support his claim for relief.
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The Legislature enacted section 1016.8 in response to a
report that a particular district attorney’s office was including
a provision in plea agreements whereby the defendant agreed
to waive “ ‘all future potential benefits of any legislative actions
or judicial decisions or other changes in the law that may
occur after the date of this plea,’ ” and a statement in a 2019
Court of Appeal decision indicating that such a waiver would
be enforceable. (People v. Barton (2020) 52 Cal.App.5th 1145,
1153, citing Sen. Com. on Public Safety, Analysis of Assem.
Bill No. 1618 (2019–2020 Reg. Sess.) July 1, 2019, pp. 6–7.)
By enacting section 1016.8, the Legislature “intended to ‘make
such provisions in a plea bargain void as against public policy.’ ”
(People v. Barton, supra, at p. 1153.)
Johnson did not provide the superior court or this court
with the terms of his 1998 plea agreement. Even if it included
the type of waiver that section 1016.8 declares void, the statute
would not help him because he is not seeking to obtain the
benefit of changes in any law that postdates his plea bargain.
Rather, he is seeking to avoid the adverse effect of the Three
Strikes law as applied to his 2010 convictions. Section 1016.8
has no application here.
We are satisfied that Johnson’s counsel has fulfilled his
responsibilities (see People v. Cole (2020) 52 Cal.App.5th 1023,
1038, review granted Oct. 14, 2020, S264278) and conclude that
the appeal raises no arguable issues.
Because the appeal is from a nonappealable order, it is
dismissed.
Our disposition of this appeal is without prejudice to
defendant’s right to file a new petition for writ of habeas corpus
in the Court of Appeal.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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