Filed 6/22/15 P. v.Johnson CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B259763

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA347163)
         v.
                                                                     ORDER MODIFYING OPINION
KEVIN DEWAYNE JOHNSON,                                               [NO CHANGE IN JUDGMENT]

         Defendant and Appellant.



         The opinion filed on June 17, 2015, is modified as follows:


         On page 3, line 10, change “codefendants to consecutive life terms” to
“codefendants to concurrent life terms”




              _____________________                                      ______________________
              TURNER, P.J.                                               KRIEGLER, J.
Filed 6/17/15 P. v. Johnson CA2/5 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B259763

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA347163)
         v.

KEVIN DEWAYNE JOHNSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig
Elliott Veals, Judge. Remanded for resentencing.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
                                   I. INTRODUCTION


       A jury convicted defendant, Kevin Dewayne Johnson, of three counts of willful,
deliberate, premeditated attempted murder (Penal Code, §§ 664, 187, subd. (a))1 and
three counts of assault with a firearm (§ 245, subd. (a)(2)). The jury further found
defendant: personally and intentionally used a firearm in the commission of the
attempted murders (§ 12022.53, subd. (d)); personally used a firearm in the commission
of the assaults (§ 12022.5, subd. (a)); and committed the crimes to benefit a criminal
street gang (§§ 186.22, subd. (b)(1)(C).) Defendant was initially sentenced to 96 years
to life in state prison: three consecutive life terms for the attempted murders; three
consecutive 25-year-to-life terms under section 12022.53, subdivision (d); three years for
each firearm assault count enhanced by 10 years under section 186.22, subdivision
(b)(1)(C), and four years under section 12022.5. The trial court stayed the consecutive
firearm assault sentences pursuant to section 654. This is defendant’s second appeal from
the judgment. Defendant appeals following resentencing.


                                 II. THE PRIOR APPEAL


       In the prior appeal (People v. Johnson (December 4, 2012, B231891) [nonpub.
opn.]), we held in part, with respect to the three consecutive life terms, that defendant
was subject to a 15-year minimum parole eligibility period rather than 7 years. (§ 186.22,
subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Montes (2003) 31
Cal.4th 350, 361, fn. 14.) (People v. Johnson, supra, typed opn. at p. 11.) We further
held that under section 1170.1, subdivision (f), and People v. Rodriguez (2009) 47
Cal.4th 501, 508, the trial court improperly enhanced the three firearm assault counts for
both personal firearm use (§ 12022.5, subd. (a)) and committing a violent felony to
benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). We held: “As a result, the

1      Further statutory references are to the Penal Code unless otherwise noted.

                                              2
sentences on the three aggravated assault counts must be reversed. Upon remittitur
issuance, Mr. Johnson is to be resentenced on the aggravated assault counts.” (People v.
Johnson, supra, typed opn. at p. 15.) In our disposition we directed, “The sentence
imposed on defendant . . . is reversed and remanded for resentencing with respect to the
three firearm assault counts.” (Id., typed opn. at p. 17.) With respect to two co-
defendants, both of whom were minors when they committed the offenses, we remanded
for resentencing pursuant to People v. Caballero (2012) 55 Cal.4th 262, 268-269.
(People v. Johnson, supra, typed opn. at pp. 12-13.)
       At the resentencing hearing, the trial court stated it intended to resentence the
codefendants to consecutive life terms for attempted murder. The trial court further
stated it would “seriously consider” resentencing defendant on the attempted murder
counts if it had the authority to do so. The trial court concluded, however, that it had
authority to resentence defendant on the firearm assault counts only and it had no
authority to restructure defendant’s entire sentence.
       On appeal, defendant argues the trial court erred in concluding it had no authority
to restructure defendant’s entire sentence. We agree. Our remand language was not
intended to limit the trial court’s resentencing authority. It was not intended to restrict
the trial court’s authority to restructure its sentencing choices. (See People v. Rodriguez
(2009) 47 Cal.4th 501, 509; People v. Martinez (2012) 208 Cal.App.4th 197, 199-200.)
Accordingly, we will once again remand the matter for resentencing.




                                              3
                                IV. DISPOSITION


     The matter is remanded for resentencing.
                         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                         TURNER, P.J.


We concur:




     MOSK, J.




     KRIEGLER, J.




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