Opinion
H045741
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. RODRICK JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS052400)
I. STATEMENT OF THE CASE
On June 28, 2007, after pleading no contest, appellant Rodrick Johnson was convicted of two counts of robbery and one count of kidnapping. (Pen. Code, §§ 207; 211.) As to the kidnapping, he admitted a gang enhancement and an enhancement for personally using a firearm. (§§ 186.22, subd. (b); 12022.53, subd. (b)(1).) Johnson also admitted a strike prior. (§ 1170.12, subd. (c)(1).) Pursuant to the plea agreement, Johnson was sentenced to serve 40 years in prison.
Subsequent undesignated statutory references are to the Penal Code.
On February 18, 2018, Johnson filed a motion in Monterey County Superior Court seeking to correct, reduce or modify his sentence by striking the term imposed for the firearm enhancement. Johnson argued that the recent passage of Senate Bill 620 entitled him to such relief. On March 12, 2018, the superior court denied the motion, stating that it lacked jurisdiction to modify the sentence. Johnson filed a timely notice of appeal on April 16, 2018.
We appointed counsel to represent Johnson in this court. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues. Pursuant to Serrano, on June 29, 2018, we notified Johnson of his right to submit written argument on his own behalf within 30 days. On July 30, 2018, we received a "Supplemental Brief" from Johnson.
II. DISCUSSION
In his supplemental filing, instead of raising an issue arguable on appeal, Johnson requests that this court issue a writ of habeas corpus forthwith ordering his release from custody, ordering his appearance before a referee, and appointing counsel to represent him. The purpose of allowing an appellant to file a supplemental brief where counsel has found no arguable issues is to provide him with a final opportunity to identify a claim of reversible error. (See In re Phoenix H. (2009) 47 Cal.4th 835, 845, as modified (Feb. 10, 2010), citing In re Sade C. (1996) 13 Cal.4th 952, 994; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 6). The document submitted by Johnson fails to identify any appealable issues or errors. Instead, he seeks affirmative habeas relief.
Johnson's request for habeas relief is not appropriately raised in a supplemental brief filed pursuant to Serrano. Johnson must request affirmative habeas relief by filing a petition for writ of habeas corpus, the requirements for which are very specific. "To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition, and '[i]f the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.' [Citation.] The petition should both (i) state with particularity the facts on which relief is sought [citations], [and] (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.]" (People v. Duvall (1995) 9 Cal.4th 464, 474.) Johnson's supplemental filing fails to meet these requirements.
Because we dismiss the appeal, and because Johnson's filing fails to meet the requirements for a stand-alone petition for writ of habeas corpus, we decline to treat Johnson's supplemental brief as a petition for writ of habeas corpus. --------
Even if we ignored Johnson's request for habeas relief and looked at the substance of his filing, his arguments fail to identify any arguable claim of error. Johnson contends that his sentence is unauthorized. In the trial court, relying on the recent passage of Senate Bill 620, Johnson moved to strike the term imposed after he admitted a firearm enhancement. Senate Bill 620 amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h), effective January 1, 2018, deleting the prohibition on striking a firearm allegation or finding. Instead, these sections now allow a court, in the interest of justice and at the time of sentencing or resentencing, to strike or dismiss a firearm enhancement otherwise required to be imposed by the above provisions of law. (See Sen. Bill No. 620 (2017-2018 Reg. Sess.), Stats. 2017, ch. 682; People v. Watts (2018) 22 Cal.App.5th 102 (Watts).)
Johnson claimed below that he should be entitled to the benefits of these amendments. However, Senate Bill 620 is not retroactive to those defendants whose sentences were final at the time of the bill's passage. In In re Estrada (1965) 63 Cal.2d 740, 745 the Supreme Court stated that "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada, supra, 63 Cal.2d at p. 745, emphasis added.) Therefore, sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as amended, apply retroactively only to defendants whose sentences were not final before those provisions came into effect. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080, as modified (May 8, 2018), rehg. den. (May 24, 2018), review den. (June 27, 2018); Watts, supra, 22 Cal.App.5th at pp. 257, 231; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 679.)
Some recent sentencing amendments, such as those enacted by Proposition 47, have amended sentencing laws to expressly include those serving sentences that are final. Section 1170.18, for example, authorizes a defendant who was "serving a sentence" for a covered offense as of November 5, 2014, to file a petition for recall of sentence. (§ 1170.18, subd. (a).) Nothing in Senate Bill 620 authorizes modification to sentences that were final at the time of its passage. Since Johnson's sentence has long been final, he is not entitled to any sentence modification pursuant to this bill. Johnson can raise no claim of error arising out of the trial court's denial of his motion.
As nothing in Johnson's supplemental filing raises an arguable issue on appeal from the order denying the petition for resentencing, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. DISPOSITION
The appeal is dismissed. To the extent Johnson requests habeas relief in his supplemental brief, the request is denied without prejudice to Johnson seeking habeas relief in the Monterey County Superior Court in the first instance. (See In re Steele (2004) 32 Cal.4th 682, 692.)
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.