People v. Johnson CA5 ( 2021 )

Filed 1/25/21 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079350
Plaintiff and Respondent,
(Kern Super. Ct. No. BF149266A)
v.
ORION GARNELL JOHNSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
In a previous appeal, we remanded this matter for resentencing in light of Senate
Bill No. 1393 (2017–2018 Reg. Sess.). On remand, defendant and appellant Orion
Garnell Johnson made a Romero1 motion, which the trial court denied. He contends the
court’s ruling was error, but we reject his contention.
We remand for recalculation of custody credits but otherwise affirm the judgment.
FACTS2
An amended information filed November 10, 2015, charged defendant with four
counts of second degree robbery (counts 1, 2, 4, 8; Pen. Code, § 212.5, subd. (c)),3 one
count of transporting methamphetamine (count 3; Health & Saf. Code, § 11379,
subd. (a)), two counts of making criminal threats (count 5, 9; § 422), one count of
possessing of methamphetamine for sale (count 6; Health & Saf. Code, § 11378), one
count of failing to notify of property damage after a vehicle accident (count 7; Veh.
Code, § 20002, subd. (a)); and one count of felony vandalism (count 10; § 594,
subd. (b)(1).)
The information also alleged the following enhancements: a deadly weapon
enhancement (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)) as to count 6; an
enhancement for a prior controlled substance conviction (see Health & Saf. Code,
§ 11370.2, subd. (c)) as to counts 3 and 6; an onbail enhancement (§ 12022.1) for counts
4 through 6; two onbail enhancements (§ 12022.1) for counts 8 through 10; nine prior
serious felony conviction enhancements (§ 667, subd. (a)); two prior prison term
enhancements (§ 667.5, subd. (a)) as to counts 1, 2, 4, 5, 8, and 9; nine prior strike
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2Because defendant’s contentions solely relate to resentencing, both parties
declined to brief the underlying facts of defendants’ crimes. We agree a recitation of the
underlying facts is unnecessary. (See People v. Brookins (1989) 215 Cal.App.3d 1297,
1300–1301.)
3 All further statutory references are to the Penal Code unless otherwise noted.
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convictions (§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)); and four prior prison term
enhancements (§ 667.5, subd. (b)) as to counts 1 through 6, and 8 through 10.
A jury convicted defendant as charged on counts 1, 2, 4, 5, 7, 8, 9 and10. The jury
acquitted defendant on count 6 but convicted him on the lesser included offense of
possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The jury
was unable to reach a verdict on count 3, which was subsequently dismissed by the
prosecution.
The court dismissed the following enhancements: the section 667.5,
subdivision (a) enhancements to count 5; one section 667.5, subdivision (a) enhancement
to count 9; one section 667, subdivision (a) enhancement to count 9; and all the
enhancements to count 6. The court found the remaining enhancements true.
Probation Report
The probation report indicated that defendant began drinking alcohol at six years
of age and continued drinking until his present arrest. It further indicated that defendant
began smoking marijuana when he was nine years old and has continued using it on a
regular basis for his entire life. Defendant began using cocaine when he was 14 years old
and continued to do so until a prior arrest in 2000. In 2008, defendant began using
methamphetamine.
Clinical Psychologist’s Report
A clinical psychologist stated defendant “may have experienced diminished
capacity due to the influence of alcohol and/or drugs.” Defendant reported being
subjected to sexual abuse. He also reported that his mother said she declined to treat him
with Ritalin as a child.
Sentencing Letter
A letter submitted by defendant’s sibling ahead of sentencing stated their father
was mentally and physically abusive and gave defendant drugs when he was three years
old. The letter further stated that when defendant “is drug free, he’s a hard worker, a
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good son, a loving father, a strong brother and friend to others particularly to the
marginalized.”
Sentence
Defendant filed a Romero motion, which the trial court denied. The court
sentenced defendant to 100 years to life, plus 62 years.
Original Appeal and Subsequent Proceedings
In an opinion filed December 3, 2018, this court remanded the matter for
resentencing under Senate Bill 1393, but otherwise affirmed the judgment. (People v.
Johnson (Dec. 3, 2018, F073354) [nonpub opn.].)
On remand, the trial court did exercise its discretion under Senate Bill 1393 to
strike all of the enhancements previously imposed under sections 667, subdivision (a) and
667.5, subdivisions (a) and (b).
At resentencing, defense counsel made an oral Romero motion, which the court
denied, stating:
“And, again, I’m not going to exercise my discretion to dismiss any
of the prior strikes essentially for the reasons stated the last time – the
previous time that he was sentenced. I mean, there are nine strikes between
a period from 1997 to 2001. He’s released from prison and paroled in
January of 2000 from his robbery. And then within six months or so, five
months apparently is when the series of robberies occur which are eight in
total and he continued into – for about a year’s period of time and I don’t
know the facts of the robberies other than they are bank robberies are in
parenthesis. There’s – there is an armed bank robbery, use of a firearm and
there were no weapons used in our cases. Apparently, there’s some
evidence in the probation report that they may have involved some sort of a
weapon which is certainly inconsistent in the current – in his current
sentencing at this time.
“Nevertheless, he did get released ultimately from prison in 2008
from the bank robberies and there was a violation of probation where he
went back for eight months. And in 2011 – and I think our cases begin in
2013 if I’m not mistaken, 2013, 2014, so there’s not – there really is not –
as pointed out in the prosecution’s sentencing statement, there is really no
significant period of time wherein he – where he remained crime free such
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that I would be able to say that he does not come within the meaning of the
three strikes law.
“I think he does come within the meaning of the three strikes law
and the intent of the three strikes law which is to impose longer sentences
on individuals who commit at least serious or violent crimes at least as to
his current status of the three strikes law, so I will not be dismissing any of
the prior strike allegations…”
The court sentenced defendant to an aggregate term of 100 years to life, plus 2
years.
DISCUSSION
I. The Trial Court did not Abuse its Discretion in Denying Defendant’s Romero
Motion
In exercising its discretion under the “Three Strikes” law, a court “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies. [Citation.]” (In re Large (2007) 41 Cal.4th 538,
552.) However, career criminals can only be deemed to fall outside the spirit of the
Three Strikes law in “extraordinary” circumstances. (People v. Carmony (2004) 33
Cal.4th 367, 376 (Carmony).)
A trial court’s denial of a Romero motion is subject to review for abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 375.) The trial court’s decision “ ‘ “will
not be reversed merely because reasonable people might disagree.” ’ ” (Id. at p. 377.)
“ ‘ “ ‘An appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ ” ’ ” (Ibid.) In order to establish a
reversible abuse of discretion, the defendant must show the “decision is so irrational or
arbitrary that no reasonable person could agree with it.” (Ibid.)
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Here, the trial court correctly noted that defendant’s history shows he was unable
to remain crime-free while out of custody for any “significant period” of time. Defendant
is precisely the type of repeat offender the Three Strikes law was designed to impact.
Defendant argues there were other factors that worked in his favor, such as: the
purportedly nonviolent nature of his past and present crimes, the strike priors being
approximately 20 years old, the availability of lesser sentences the court could have
imposed, defendant’s previous guilty plea and acknowledgments of culpability, his drug
abuse, his “untreated ADHD,” and his father’s mental and physical abuse. But to accept
this argument would be to reweigh the competing considerations committed to the trial
court’s discretion. That is not our role. The trial court considered the relevant
information and found defendant’s criminal history to be persuasive evidence that he falls
within the spirit of the Three Strikes law. Defendant’s identification of these
countervailing considerations does not establish an abuse of discretion. Moreover, even
if it were our role to reweigh the various factors at issue, none of them are so
“extraordinary” (Carmony, supra, 33 Cal.4th at p. 376) as to remove defendant from the
spirit of the Three Strikes law.
II. The Matter Will be Remanded for Recalculation of Post Sentence Custody
Credit
The parties agree that the trial court should have recalculated defendant’s credits
to include post sentence custody credits for the time served between his sentencing and
resentencing. (See § 2900.1.) The Attorney General contends the proper remedy is to
remand for recalculation of the credits and defendant states he “does not object to such a
remand.” Accordingly, we will remand with directions to recalculate defendant’s
custody credits.
DISPOSITION
The matter is remanded with directions that the trial court recalculate defendant’s
custody credits, and subsequently prepare an amended abstract of judgment reflecting the
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recalculated credits and transmit it to appropriate parties and entities. In all other
respects, the judgment is affirmed.
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