Filed 10/19/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079421
Plaintiff and Respondent,
(Super. Ct. No. F14908082)
v.
MICHAEL MURRY JOHNSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly A.
Gaab, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Smith, J.
Appointed counsel for defendant Michael Murry Johnson asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than
30 days elapsed and we received no supplemental brief from defendant. Rather,
defendant submitted a petition for writ of habeas corpus, and subsequently confirmed that
he wished that submission to be filed as a new case.1 Finding, relevant to this appeal, no
arguable error that would result in a disposition more favorable to defendant, we affirm.
Following is a brief description of the facts and procedural history of the case.
(See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In the early morning hours of August 24, 2014, Leonard G. was fatally shot
outside a social hall in Fresno, California, and Earl P. was shot and wounded.2 The
shooting occurred after altercations between Leonard and defendant inside the social hall
and, later, outside of that facility. A witness identified defendant as the shooter.
Although the identity of the shooter was disputed at trial, a jury convicted defendant of
the first degree murder of Leonard (Pen. Code, § 187, subd. (a);3 count 1), and the
attempted murder of Earl (§§ 664/187, subd. (a); count 2). As to each count, the jury
found true a firearm enhancement pursuant to section 12022.53, subdivision (d).
Defendant admitted he had suffered a prior strike conviction. (§§ 667, subds. (b)–(i) &
1170.12, subds. (a)–(d).) At sentencing, the court denied defendant’s request to strike the
1 In re Michael M. Johnson on Habeas Corpus, case No. F080603.
2 The facts regarding the underlying crimes and procedural history are summarized
from our prior nonpublished opinion in People v. Johnson (Dec. 19, 2018, F074340,
mod. on rehg. den. Jan. 16, 2019) at pages 1–3 (Johnson). Pursuant to California Rules
of Court, rule 8.90, we refer to some persons by their first names. No disrespect is
intended.
3 Subsequent statutory references are to the Penal Code.
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strike prior. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Defendant
was sentenced to an aggregate sentence of 114 years to life, which included two 25-year
terms for the firearm enhancements.
Defendant appealed and this court affirmed the judgment in an unpublished
opinion filed on December 19, 2018. (Johnson, supra, F074340, at pp. 1, 28.) However,
defendant filed a petition for rehearing in which he asked this court to remand the matter
for the trial court to consider whether to exercise its discretion to strike the firearm
enhancements pursuant to section 12022.53, subdivision (h), which recently had been
amended by Senate Bill No. 620 (2017–2018 Reg. Sess.). (Johnson, at p. 2.) This court
denied the petition, but modified its opinion by remanding the matter for the limited
purpose of allowing the court to exercise its sentencing discretion on the firearm
enhancements. (Id. at pp. 1, 28.)
On remand, defendant requested the court exercise its discretion to strike his
firearm enhancements. He also asked the court to reconsider the entire sentence, to
exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 to strike his prior strike conviction, and to impose concurrent sentences. The court
denied the motion to strike the firearm enhancements based on the nature of the crimes
and defendant’s prior criminal history. The court noted that defendant had demonstrated
neither reform nor remorse, and that he presented a significant danger to the community.
The court declined to reach defendant’s other resentencing requests on the ground they
were not properly before the court. The court ordered defendant’s previous sentence to
remain in effect.
This timely appeal followed.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
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