Filed 8/18/15 P. v. Johnson CA4/1




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049575

         v.                                                            (Super. Ct. No. 96CF0718)

TREVOR ANTHONY JOHNSON,                                                OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Affirmed.
                   David K. Rankin, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
              Appellant Trevor Anthony Johnson is currently serving an indeterminate
life sentence under the “Three Strikes” law. He appeals the denial of his Proposition 36
petition for resentencing on the grounds the trial court did not allow him the opportunity
to challenge the constitutionality of his prior strike convictions. However, as we explain,
Proposition 36 does not contemplate such a challenge, nor does the Constitution require
that appellant be provided one in this proceeding. Therefore, the trial court properly
denied his petition for resentencing.
                    FACTUAL AND PROCEDURAL BACKGROUND
              In 1998, appellant was convicted by an Orange County jury of committing
battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)1 In addition, the trial
court found appellant had suffered three prior strike convictions – for residential
burglary, forcible rape and forcible oral copulation – all of which were based on a guilty
plea appellant entered in a case arising out of Los Angeles in 1989.2 Accordingly, the
trial court sentenced him to 25 years to life under the Three Strikes law. (§§ 667, subds.
(d)-(e)(2), 1170.12, subd. (b)-(c)(2).) The court also enhanced appellant’s sentence one
year, based on his having served a prior prison term. (§ 667.5, subd. (b).)
              In November 2012, the voters passed Proposition 36, which amended the
Three Strikes law to allow for discretionary resentencing in some cases in which third-
strike sentences had been imposed. (§ 1170.126; People v. Johnson (2015) 61 Cal.4th
674.) Although Proposition 36 does not apply if the defendant’s commitment offense
was for a serious or violent felony (§ 1170.126, subd. (e)(1)), or the defendant has
suffered a prior conviction for a sexually violent offense (§§ 1170.126, subd. (e)(3), 667,
subd. (e)(2)(C)(iv)(I), 1170, subd. (c)(2)(C)(iv)(I)), appellant petitioned the Orange
County Superior Court to recall his sentence and resentence him to a determinate prison
term. In so doing, he alleged his commitment offense – battery with serious bodily injury

       1      Unless noted otherwise, all further statutory references are to the Penal Code.
       2      In that case, appellant broke into the victim’s home and sexually assaulted her at knifepoint.


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– was not a serious or violent offense. And while he did not dispute his prior strike
convictions for forcible rape and forcible oral copulation constituted sexually violent
offenses, he asserted they did not disqualify him from obtaining relief under Proposition
36 because they were obtained in violation of his constitutional rights. In particular,
appellant claimed that before pleading guilty to those sex crimes, he was never advised
of, nor did he waive, his Boykin-Tahl rights, i.e., his right to a jury trial, to confront
witnesses, and to be free of compelled self-incrimination. (See Boykin v. Alabama (1969)
395 U.S. 238, 242; In re Tahl (1969) 1 Cal.3d 122, 132.) Appellant requested an
evidentiary hearing on the validity of his prior convictions, but the trial court denied his
request and summarily denied his motion for resentencing. While the motion hearing
was not reported, the clerk’s minute order reflects the court denied appellant relief under
Proposition 36 due to the sexually violent nature of his prior strike convictions.
                                        DISCUSSION
              Appellant contends the trial court erred in denying his motion without
giving him a chance to challenge the constitutionality of his prior convictions. We
disagree.
              As a preliminary matter, we note this is not the first time appellant has
presented the claim he makes in this case. In 2014, he filed a Proposition 36 petition in
Riverside County Superior Court seeking relief from an indeterminate life term he
received there in 2000 for unlawful gun possession. As in the instant case, appellant
claimed his 1989 strike convictions were invalid due to Boykin-Tahl error. However, his
petition for resentencing was summarily denied, and on appeal division two of our
appellate district upheld the denial on the ground Proposition 36 does not allow
defendants to collaterally attack their prior strike convictions. (People v. Johnson (Sept.
29, 2014, E060494) [nonpub. opn.].) Although that opinion was not published, and thus
has no precedential value, we mention it because it states reasons for a decision affecting



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the same defendant in another action (Cal. Rules of Court, rule 8.1115(b)(2)) – and,
indeed, involves our facts.
              It is also worth noting that, irrespective of the nature of appellant’s prior
strike convictions, it appears he is outside the scope of Proposition 36 due to the gravity
of his commitment offense of battery with serious bodily injury. (§ 1170.126, subd.
(e)(1) [an inmate cannot obtain sentencing relief under Proposition 36 if he is serving an
indeterminate term for a serious felony as defined in § 1192.7, subd. (c)].) Although
battery with serious bodily injury is not one of the crimes listed in section 1192.7,
subdivision (c) as a serious felony, it qualifies as a serious felony if during its
commission the defendant personally inflicted great bodily injury on a person other than
an accomplice. (§ 1192.7, subd. (c)(8); People v. Bueno (2006) 143 Cal.App.4th 1503,
1508.) According to the record of conviction in appellant’s earlier case, of which we take
judicial notice (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a)), he did in fact personally
inflict great bodily injury on a nonaccomplice. (See People v. Johnson (May 21, 1999,
G023041) [nonpub. opn.].) Therefore, he would appear to be ineligible for Proposition
36 relief. (See People v. Guilford (2014) 228 Cal.App.4th 651, 659-661.)
              Nevertheless, we will proceed to address appellant’s claim regarding the
propriety of the trial court’s decision to deny his petition for resentencing without
allowing him the opportunity to collaterally attack his prior convictions. As our Supreme
Court has recently explained, a defendant serving an indeterminate third-strike sentence
is only eligible for relief under Proposition 36 if his commitment offense was not a
serious or violent felony, and he is not disqualified from resentencing due an exception in
the law, such as the exception for having previously been convicted of a sexually violent
offense. (People v. Johnson, supra, 61 Cal.4th at p. 682.) Even then, the court may deny
a petition for resentencing if it believes the defendant would pose an unreasonable risk to
public safety. (Ibid.)



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              Proposition 36 was designed “to prevent the early release of dangerous
criminals and relieve prison overcrowding by allowing low-risk, nonviolent inmates
serving life sentences [to obtain a reduced] sentence. [Citations.] The electorate also
approved a mandate that [Proposition 36] be liberally construed to effectuate the
protection of the health, safety, and welfare of the People of California. [Citation.]”
(People v. Brown (2014) 230 Cal.App.4th 1502, 1509, fn. omitted (Brown).)
              In Brown, the defendant was in the same shoes as appellant. Having
suffered a prior conviction for a sexually violent offense, he was expressly disqualified
from obtaining relief under Proposition 36. (Brown, supra, 230 Cal.App.4th at pp. 1510-
1511.) Hoping to sidestep that obstacle, he argued the trial court had the authority to
strike his prior conviction pursuant to section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497. However, the Brown court disagreed. Finding nothing
in the text of Proposition 36 to support that argument, the court ruled “the absence of
[such] discretionary authority in [Proposition 36] shows the [voters] intended to withhold
statutory power of a trial court to exercise its discretion in the furtherance of justice under
section 1385 in determining a defendant’s eligibility to be resentenced . . . .” (Brown,
supra, 230 Cal.App.4th at p. 1512.) Brown thus affirmed the denial of the defendant’s
Proposition 36 petition. (Id. at p. 1515.)
              The same reasoning applies in this case. There being nothing in the text of
Proposition 36 that authorizes the trial court to conduct a hearing on the constitutionality
of the defendant’s prior strike convictions, it is reasonable to presume the voters never
intended for such hearings to take place in Proposition 36 proceedings. In this regard, we
must remember courts “‘may not, under the guise of construction, rewrite the law or give
the words an effect different from the plain and direct import of the terms used.’”
(People v. Massicot (2002) 97 Cal.App.4th 920, 925.)
              Recognizing the absence of textual support for his position, appellant stakes
his claim primarily on constitutional grounds. Relying on People v. Allen (1999) 21

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Cal.4th 424 (Allen) and People v. Sumstine (1984) 36 Cal.3d 909 (Sumstine), he contends
the state cannot use an unlawfully obtained conviction for any purpose in a criminal
proceeding, and therefore, as a matter of due process, he should have been afforded the
opportunity to challenge the constitutionality of his prior strike convictions as part of his
Proposition 36 petition. We disagree.
              Allen makes clear that “if a state desires to rely on a defendant’s prior
felony conviction to enhance his or her sentence, the prior conviction must be
constitutionally valid. [Citation.]” (Allen, supra, 21 Cal.4th at p. 429.) While Allen also
recognized that Sumstine authorizes a defendant to attack the constitutionality of a prior
conviction on Boykin-Tahl grounds at the time of sentencing in his current trial (id. at p.
430), nearly two decades have passed since the time appellant was sentenced. Moreover,
Allen emphasized the right to a Sumstine hearing is not constitutionally compelled; rather,
it is based on concerns for the efficient administration of justice. (Ibid.) This suggests
the state has broad authority to decide when, where and how a collateral attack on a prior
conviction may be mounted. We do not read Allen and Sumstine as requiring the trial
court to entertain a Boykin-Tahl challenge in Proposition 36 proceedings. (See generally
People v. Oehmigen (2014) 232 Cal.App.4th 1, 6-8 [due process does not require a
hearing on the defendant’s eligibility for Proposition 36 relief].)
              In fact, the underlying rationale of Allen and Sumstine does not apply to
Proposition 36 proceedings because they cannot result in the defendant’s sentence being
enhanced by virtue of his prior convictions. To the contrary, Proposition 36 “merely
provides a limited mechanism within which the trial court may consider a reduction of
the sentence below the original term. . . .” (People v. Bradford (2014) 227 Cal.App.4th
1322, 1336, italics added.) Consequently, Proposition 36 proceedings are
“distinguishable from other sentencing proceedings,” and any sentencing reduction must
be carried out in accordance with its stated terms. (Ibid.) Since there is nothing in
Proposition 36 that authorizes a collateral attack on a prior strike conviction, the trial

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court was not empowered to conduct a hearing to determine the constitutional validity of
appellant’s priors in this case.
              That does not mean appellant is without a remedy. For, as respondent
concedes, it is well established that a defendant may challenge the validity of a prior
conviction by way of a petition for writ of habeas corpus. (Allen, supra, 21 Cal.4th at p.
429; People v. Picklesimer (2010) 48 Cal.4th 330, 339.) Recognizing this, appellant has
in fact filed a habeas petition in this court, which we address by separate order.
However, that development has no bearing on appellant’s direct appeal, which for the
reasons stated above, is without merit.
                                      DISPOSITION

              The trial court’s postjudgment order denying appellant’s petition for

resentencing under Proposition 36 is affirmed. Appellant’s request to consolidate his

habeas petition with this appeal is denied.



                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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