Filed 8/17/16 P. v. Johnson CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B261443

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA033342)
         v.

ARTHUR LEE JOHNSON,

         Defendant and Appellant.



THE COURT:*
         Defendant and appellant Arthur Lee Johnson appeals from the trial court’s
December 18, 2014 order denying defendant’s motion under Penal Code section 13851 to
strike prior felony convictions that were qualifying prior strike convictions under the
“Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12). Defendant’s appointed appellate
counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising
no issues. On May 27, 2016, we directed defendant’s appellate counsel to send defendant
the record on this appeal and a copy of counsel’s opening brief and accorded defendant



*        BOREN, P. J., CHAVEZ, J., HOFFSTADT, J.

1        All further statutory references are to the Penal Code unless otherwise indicated.
30 days to file his own brief or letter stating any ground or argument he wished to have
considered. Defendant did not submit any brief or letter.
       Our independent review of the record discloses no error by the trial court. We
therefore affirm the trial court’s order.
                                     BACKGROUND2
       A jury convicted defendant in February 1998 of three counts of first degree
burglary, and the court found he had three prior burglary convictions that were qualifying
prior felony convictions under the Three Strikes law.
       Defendant’s criminal history included a 1974 petty theft conviction, for which he
was granted probation; a 1977 conviction for burglary and theft, for which he was
sentenced to jail; a 1986 conviction for two counts of first degree burglary, for which he
was placed on five years of probation with a condition that he serve one year in jail; a
1987 conviction for possession of cocaine, after which he was sentenced to concurrent
two-year terms for cocaine possession and for the previous burglaries. Defendant was
paroled on January 26, 1988. On May 18, 1988, he was arrested for first degree burglary,
and in October 1988, he was convicted of seven counts of first degree burglary. In
November 1988, he was sentenced to a total prison term of 12 years 4 months for the
burglary offenses. Defendant was paroled on October 12, 1994. He was arrested several
weeks later, and his parole was revoked. Defendant was again paroled on April 4, 1995.
He was arrested soon thereafter for second degree burglary, and a parole hold was placed
on April 25, 1995. On April 15, 1996, defendant was convicted of second degree
burglary, was found to have one prior strike, and was sentenced to a prison term of two
years eight months. He was paroled on April 2, 1997, less than two months before he
committed the first of the three offenses that are the underlying basis for this appeal.
       Defendant served in the United States Navy from 1969 through 1972. He received
the National Defense Service Medal, the Vietnam Service Medal with a Bronze Star, and

2      We granted defendant’s request for judicial notice of our opinion in a prior appeal
by defendant, which sets forth in detail the factual and procedural history of this case.
(People v. Johnson (Mar. 22, 2001, B141948) [nonpub. opn.].)

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a combat action ribbon for his service in Vietnam. He began using heroin in Vietnam
and became addicted to heroin. Several years later, he began using methamphetamine.
At the time of his initial sentencing hearing in 1998, defendant had never received
treatment for drug or alcohol abuse.
       At defendant’s initial sentencing hearing in May 1998, Dr. Calvin Frederick, a
professor in the Department of Psychiatry and Behavioral Sciences at UCLA, opined that
defendant suffered from posttraumatic stress disorder (PTSD) as a result of his
experience in Vietnam but noted that PTSD can be treated. Dr. Frederick stated that
defendant’s commission of burglaries was related to a $200-a-day drug habit.
Defendant’s sister Gwendolyn Gill submitted a letter on defendant’s behalf and testified
that she never saw defendant act violently and that defendant had not admitted his drug
use to her until two weeks before the sentencing hearing. She believed he had been too
ashamed to request help.
       At the conclusion of the sentencing hearing, the trial court reviewed defendant’s
criminal history and noted that defendant had spent 10 of the past 12 years in state prison,
that he had been paroled multiple times, and that he continued to commit crimes while
out on parole. The trial court further noted that defendant’s drug addiction and PTSD
were both treatable, that he had never sought treatment for those problems, and that he
had instead chosen to become a career criminal. The court sentenced defendant to three
consecutive prison terms of 25 years to life.
       After that sentence was imposed, the Supreme Court held that a trial court has
discretion to vacate or dismiss one or more prior strike findings or allegations with
respect to one current felony after determining that it would be inappropriate to vacate or
dismiss any prior strike findings or allegations with respect to another current felony.
(People v. Garcia (1999) 20 Cal.4th 490, 492-493 (Garcia).)
       In a nonpublished opinion in defendant’s first appeal, People v. Johnson (Nov. 16,
1999, B123526), we concluded that the trial court had acted within its discretion in
deciding not to vacate any prior strike findings as to one count of burglary. We noted,
however, that until the Supreme Court’s decision in Garcia, the law had been unclear,


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and the trial court might not have known that it had discretion to vacate prior strike
findings on a count-by-count basis. We therefore remanded the case for resentencing to
permit the trial court to consider whether to vacate one or more prior strike findings as to
one or two counts only.
       On remand, the trial court again sentenced defendant to three consecutive prison
terms of 25 years to life. Defendant filed a second appeal (B141948), in which he argued
that his resentencing hearing was fundamentally unfair because the trial court and his
counsel were unaware of the actual number of prior strikes that had been found true; that
the trial court abused its discretion by not vacating at least two prior strike findings as to
two of the current convictions; the sentence imposed constituted cruel and unusual
punishment in violation of the California Constitution and the Eighth Amendment to the
United States Constitution; and the trial court erred in calculating and awarding custody
credit for the time defendant spent in prison and jail awaiting resentencing. We
concluded that defendant had forfeited the right to contend the resentencing hearing was
unfair because defense counsel had asserted at the hearing that the court did not need to
know the actual number of prior strike findings to determine whether defendant should
receive a sentence of less than 25 years to life on one or two counts; that insofar as
defendant claimed defense counsel was ineffective, he had failed to establish any
resulting prejudice; and the record disclosed no abuse of discretion by the trial court. We
further concluded the sentence imposed did not constitute cruel and unusual punishment
in view of defendant’s prior strike findings, his long recidivist history,
       In November 2014, defendant filed a motion under section 1385 seeking dismissal
of his prior felony strikes on the ground that he committed those offenses as the result of
PTSD and substance abuse problems stemming from his military service, and that section
1170.93 required the court to consider whether defendant should be placed on probation


3       Section 1170.9, subdivision (a) provides in relevant part: “In the case of any
person convicted of a criminal offense who could otherwise be sentenced to county jail or
state prison and who alleges that he or she committed the offense as a result of . . . post-
traumatic stress disorder, substance abuse, or mental health problems stemming from

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and ordered into an appropriate treatment program rather than being sentenced to state
prison. The trial court denied the motion in an order dated December 18, 2014,
concluding that defendant had failed to establish prima facie grounds for relief. This
appeal followed.
       We have reviewed the entire record and find that there was no error.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




service in the United States military, the court shall, prior to sentencing, make a
determination as to whether the defendant was, or currently is, a member of the United
States military and whether the defendant may be suffering from … post-traumatic stress
disorder, substance abuse, or mental health problems as a result of his or her service. The
court may request, through existing resources, an assessment to aid in that
determination.”
       Subdivision (b)(1) of the statute provides that if the defendant is a person
described in subdivision (a), and the defendant is otherwise eligible for probation, “the
court shall consider the circumstances described in subdivision (a) as a factor in favor of
granting probation.” (§ 1170.9, subd. (b)(1).) Subdivision (b)(2) provides that if the
court places the defendant on probation, the court may order the defendant into a
treatment program “for a period not to exceed that period which the defendant would
have served in state prison or county jail, provided the defendant agrees to participate in
the program and the court determines that an appropriate treatment program exists.”
(§ 1170.9, subd. (b)(2).)

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