Filed 8/4/26 P. v. Johnson CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B343835
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. XSONA033985-02
LESTER JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard M. Goul, Judge. Affirmed
as modified; remanded with directions.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, David E. Madeo and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Lester Johnson appeals from his resentencing under
Penal Code section 1172.75.1 Johnson contends the court erred
in declining to strike his prior strike, declining to strike his
firearm enhancements, and reimposing the upper term on the
second count for attempted murder as well as on the firearm
enhancements. Johnson also contends the abstract of judgment
must be corrected to state accurately his presentence credits
and the date of his resentencing. We find no error in the court’s
rulings and therefore affirm. We remand for the superior court
to correct the abstract of judgment.
FACTS AND PROCEDURAL BACKGROUND
1. Johnson shoots one victim in the head, killing her,
and a second victim in the leg2
On May 24, 1996, Johnson—together with Gregory Lane
Burr—arranged to buy marijuana from Danielle Washington.
During the transaction, an argument arose. Johnson pulled out
a handgun, pointed it at Washington’s cheek below her eye, and
pulled the trigger, killing her. Frederick Walker, who witnessed
the shooting, turned to run out of the apartment. Johnson fired
one round at Walker, grazing his upper calf. Walker ran to a
nearby apartment for help. Police arrived to find Washington
lying on the ground “in a ‘large puddle of blood.’ ”
2. The charges, verdicts, and sentence
Police arrested Johnson about four months later. The
People charged him with the murder of Washington (count 1),
the attempted murder of Walker (count 2), and being a convicted
1 References to statutes are to the Penal Code.
2 As Johnson refers to the probation report for the
underlying facts, we do as well.
2
felon in possession of a firearm (count 5). In the murder and
attempted murder counts, the People alleged both Johnson and
Burr personally used a firearm, and a principal used a firearm,
in the commission of the crimes. The People also alleged Johnson
had a prior strike conviction for attempted robbery—constituting
a five-year prior as well—and a one-year prison prior.
A jury convicted Johnson of second degree murder,
attempted murder, and possession of a firearm by a felon. The
jury also found the firearm allegations true. In a bench trial,
the court found the strike, five-year prior, and prison prior true.
The court sentenced Johnson to 75 years and four months to
life calculated as follows: On count 1, 15 years to life, doubled
because of the strike, plus 10 years for the gun; on count 2,
the upper term of nine years, doubled, plus 10 years for the gun;
and on count 5, one-third the midterm of eight months, doubled.
The court imposed a five-year serious felony prior and a one-year
prison prior.
Another panel of this court affirmed Johnson’s conviction.
(People v. Burr et al. (Oct. 22, 1999, B124335) [nonpub. opn.].)
3. The CDCR notice and resentencing
In 2023, the court apparently received a notice from the
California Department of Corrections and Rehabilitation that
Johnson was eligible for resentencing under Senate Bill No. 483
(2021–2022 Reg. Sess.).3 The court appointed counsel for
Johnson.
Johnson’s motion for resentencing. On November 6,
2024, Johnson’s counsel filed a motion for full resentencing.
Counsel asked the court to strike Johnson’s strike, strike his
3 The record on appeal does not include the notice.
3
firearm enhancements, impose the low terms on the attempted
murder count and the firearm enhancements, and run the
sentences on the three counts concurrently. Counsel attached
a number of exhibits, including summaries of interviews with
two of Johnson’s sisters, certificates and documents reflecting
classes Johnson had taken while in prison, laudatory chronos
Johnson had received, documents reflecting Johnson’s work
history, his plans for reentry if released, and excepts from
his parole packet for a 2021 parole hearing.
Among other documents in the parole packet was a
typewritten statement by Johnson. Johnson stated his father
was an alcoholic who beat his mother. When Johnson was
10 or 11 years old he “started to claim” the Nutty Block Crips.
Several of Johnson’s friends were killed in gang incidents.
Another friend was shot to death by police “for trying to carjack
someone.” Johnson began carrying a gun “at all times” for
protection. He “did not want to get killed.” In 1995 Johnson’s
brother was shot in the chest but survived. Later that year
he was killed in a car crash when “[s]omeone was chasing him.”
Johnson wrote that on May 24, 1996, he went to a party
in Long Beach. He asked about weed and Burr drove him to
get some. A gun slid out from under the passenger seat of Burr’s
car and Johnson picked it up. Washington said she had weed
“ ‘in the back’ ” and they all walked to the back of an apartment.
Washington and Johnson “got into an argument over the amount
of weed.” Washington called Johnson “a Bitch” and “[he] pulled
out the gun and shot her in the head.” Johnson then “saw a gun
in Mr. Walker’s hand and [he] shot [Walker].”
In a “closing statement,” Johnson wrote, “I’m guilty of it all
and that my sentence was fair.” He continued, “But the person
4
sitting before you all today is a changed man.” Johnson included
letters of apology he had written to Walker, to the “parents and
family” of Washington, and to Washington herself (though she,
of course, was deceased).
Johnson’s counsel also attached to his motion a March 2024
Comprehensive Risk Assessment (CRA) prepared by a forensic
psychologist, Dr. Robert Koranda, for the Board of Parole
hearings. Dr. Koranda had interviewed Johnson by Microsoft
Teams in February 2024. He described in some detail his
upbringing, criminal history, and conduct while in prison.
Dr. Koranda recounted Johnson’s statements that he “was ‘all in
gangbanging’ by 7th grade.” When he was about “16 years old,
he was involved in a physical altercation at a swap meet,
brandished his firearm, and shot at people before running away.”
Johnson admitted “perpetrating acts of domestic violence towards
several women.” “[W]ith one partner, Lena [W.], he ‘jumped on
her’ and ‘beat her bad, it was really violent and ugly’ during an
argument when he was under the influence of alcohol and drugs.”
Johnson had previously been charged with murder but
that charge was eventually dropped. Johnson also had “admitted
during his last CRA4 that he tried to have a person unrelated
to his Life crime killed.” Dr. Koranda stated Johnson had
received about 10 rules violation reports between 2002 and 2017.
Three of those “were issued for violent or aggressive behavior,”
including threats to take deliberate actions against other inmates
in November 2002, possession of an inmate-manufactured deadly
weapon in March 2014, and possession of a deadly weapon in
August 2017. The doctor also noted the 2021 assessment stated
4 We discuss Johnson’s 2021 CRA below.
5
Johnson had “ ‘participated in group decision making that led
to the death of an inmate and a riot.’ ” He added Johnson had
“challenged the accuracy of this information.”
Dr. Koranda stated Johnson had continued to engage in
antisocial acts even after his conviction—acts that are “reflected
in his records and disciplinary history.” However, he continued,
there had been “a noticeable improvement in his conduct as he
has matured,” noting Johnson had had “no serious rule violations
since 2017.” The doctor listed the “most relevant [and] salient
. . . considerations” for assessing a risk of violence, including
Johnson’s “lack of recent formal participation in substance abuse
programming,” his “history of violence and antisocial conduct
from a young age,” his “extensive pattern of arrests/convictions
for violence [sic] offenses,” his “prior parole and probation
violations,” his “[m]ultiple violations of the institutional rules,”
and his “history of violence against several women, including
the victim of his Life crime.” He also listed the most relevant
and salient “desistance or mitigating considerations,” including
“aspects of feasibility” in his parole plans, his completion of
“several relapse prevention plans intended to mitigate his risk
for violence,” his “plans to enroll in a truck driving school,” his
reported “disassociat[ion] from prison gang activity over 10 years
[earlier],” his “demonstrated transparency into the factors
that resulted in the commission of his Life crime and negative
perceptions towards women,” and his “extensive amount of
personal support” from his family and friends.
Taking all of this into account, Dr. Koranda concluded
Johnson “represent[ed] a Low risk for violence” “if granted parole
supervision.” He stated he’d considered “[a] slightly higher risk
rating,” especially in light of the 2021 CRA, but believed Johnson
6
had “appeared to use this additional time in prison to expand
upon his self-awareness into the factors that have resulted
in violent and antisocial conduct when he was younger.”
The prosecution’s response. On November 22, 2024,
the prosecutor filed a response to Johnson’s motion, conceding
the court should strike his prison prior but opposing any other
changes to his sentence. The prosecutor attached a printout of
Johnson’s criminal history (a so-called “CLETS”). Johnson had
been arrested twice in January 1991 for assault with a deadly
weapon and for carrying a concealed weapon. In February 1991
he was arrested for arson. In August 1991 Johnson was arrested
for driving under the influence. In February 1992 he was
arrested for attempted robbery and battery, and subsequently
convicted. (This was Johnson’s strike prior.) He was granted
probation but his probation was revoked when he was convicted
in September 1993 of carrying a loaded firearm in a public place
and other weapons offenses, and sentenced to prison. (This was
the prison prior.) In May 1996 Johnson committed the crimes
in this case.
The prosecutor also attached as an exhibit a March 2021
CRA by a forensic psychologist, Dr. Rachel Stieferman, for
the parole board. Citing the probation report, Dr. Stieferman
stated Johnson’s arrest for assault with a deadly weapon
“involved a physical assault of his girlfriend.” (This appears
to be the same incident involving Lena W. that Dr. Koranda
discussed.) Johnson “had been drinking during this incident
when he pulled the victim off the couch, dragged her to the
bedroom, pulled her hair and started pushing her head against
the wall until she passed out.” When asked about this incident,
Johnson replied, “ ‘Yes, it was a fight.’ ”
7
Dr. Stieferman stated Johnson’s attempted robbery
conviction “also involved a female victim who was assaulted
and robbed.” When asked to explain this case, Johnson stated,
“ ‘She (the robbery victim) was a lady in the neighborhood who
used drugs and she was owing us some money and we jumped
on her.’ ” Dr. Stieferman also described an incident in the
probation report (again, noted in the later CRA as well) about
“a phone call Mr. Johnson had in county jail on the current
charges.” In the call “he attempted to arrange to kill the witness,
the second victim in the crime [referring to Walker].” “When
asked about this, [Johnson] stated, ‘In that case no, the current
case yes.’ However, he later explained that he was attempting
to have someone unrelated to this case killed.”
After discussing her clinical assessment, Johnson’s
“substance abuse history and related disorders,” his “major
mental” and “personality” disorders, his institutional adjustment
and programming, his parole plans if granted release, her
assessment of his risk for violence, and his “risk of future
violence,” Dr. Stieferman concluded,
“Mr. Johnson was taught early on to use
violence in response to interpersonal concerns.
This tool led him to commit and order
numerous acts of violence throughout his life.
Despite having no recent documented violence,
Mr. Johnson continues to feel the need to
protect himself via doing harm to others,
resulting in making weapons. . . . He did
not appear forthcoming during the current
interview . . . . [¶] . . . [¶] . . . Mr. Johnson
represents a high risk for violence. He presents
8
with markedly elevated risk relative to long-
term parolees . . . .”
The reply and the hearing. Defense counsel filed a reply
to the prosecutor’s response.
The parties appeared before the court on January 31, 2025.
The court heard from Johnson as well as a number of his family
members. The court also heard from counsel. The court stated
it was “very concerned” that, after being in prison for years,
Johnson nevertheless possessed a deadly weapon in 2017 and
an inmate-manufactured weapon in 2014. The court also noted
Johnson’s other rules violations showed “his refusal to adhere
to rules.”
After hearing further argument from both Johnson’s
counsel and the prosecutor, the court ruled.
“First, the court is fully aware of its discretion
under Romero, under 1172.75, the other
ameliorative statutes which have been recently
enacted, as well as the California Supreme
Court appellate court rulings citing judges
in the application of the law to specific facts
of the case. [¶] Fully aware in exercising
that discretion, the court does find that the
defendant continues to be a threat to society
and finds by clear and convincing evidence that
imposing a lesser sentence would endanger
public safety lesser than the sentence that the
court is now going to impose. [¶] Originally he
was sentenced to 75 years to life. By operation
of law the court is going to strike the one-year
prior pursuant to Penal Code 667.5. Exercising
9
the court’s discretion, the court is going to
strike the five-year state prison prior pursuant
to Penal Code section 667(a). The court
believes by clear and convincing evidence
that any further reduction of the defendant’s
sentence at this time would endanger the
public.”
The court then resentenced Johnson to a total aggregate
term of 69 years four months to life: 15 years to life, doubled,
on count 1 plus 10 years for the firearm enhancement; the upper
term of nine years on count 2, doubled, plus 10 years for the
firearm enhancement; and one-third the midterm of eight
months, doubled, on count 5. The court noted Johnson had
credits of 637 actual days plus 96 good time/work time days for
a total of 733 days on the date of his original sentence. The court
stated Johnson’s “current actual days credit” was 9,718 days.
DISCUSSION
1. Section 1172.75
In 2021, the Legislature enacted section 1172.75, which
declares invalid one-year prison prior sentencing enhancements
imposed under section 667.5, subdivision (b). (§ 1172.75, subd.
(a).) The statute requires the CDCR to identify those individuals
in its custody currently serving a term for a judgment that
includes a prison prior enhancement. (Id., subd. (b).) If the court
determines the defendant’s judgment includes a prison prior
enhancement, the court must recall the sentence and conduct
a full resentencing of the defendant. (Id., subd. (c); see People v.
Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [“where § 1172.75
applies, it requires full resentencing”]; People v. Monroe (2022)
85 Cal.App.5th 393, 402.)
10
Resentencing under section 1172.75 “shall result in a lesser
sentence than the one originally imposed . . . unless the court
finds . . . that imposing a lesser sentence would endanger
public safety.” (§ 1172.75, subd. (d)(1).) When resentencing
a defendant, the court must “apply the sentencing rules of the
Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion.” (Id., subd. (d)(2).)
The court may consider postconviction factors, including the
defendant’s disciplinary record while incarcerated, and evidence
that reflects “that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice.” (Id., subd. (d)(3); see People v. Dowdy (2024)
107 Cal.App.5th 1, 6–7.)
Here, the trial court reduced Johnson’s sentence by
six years. Accordingly, his resentencing “result[ed] in a lesser
sentence than the one originally imposed.” (§ 1172.75, subd.
(d)(1).) Johnson contends, however, that the court should have
“further reduce[d]” his sentence, and that it erred in not striking
his prior strike and his firearm enhancements, and not
“impos[ing] middle or lower term sentences.”
2. Standard of review
We review a trial court’s decision whether to strike
a previous serious or violent felony for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 374–375 (Carmony).)
We also review a court’s ruling under section 1172.75 for abuse
of discretion. (People v. Garcia (2024) 101 Cal.App.5th 848, 856–
857 (Garcia).) We ask whether substantial evidence supports the
trial court’s findings of fact, whether its rulings of law are correct,
and whether its application of the law to the facts was arbitrary
or capricious. (Id. at p. 857.)
11
Section 1172.75, subdivision (d) “vests the superior court
with broad discretion based on an inherently factual inquiry.”
(Garcia, supra, 101 Cal.App.5th at pp. 856–857.) “Absent
evidence to the contrary, we presume that the trial court knew
the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th
983, 1042; accord, People v. Bravo (2025) 107 Cal.App.5th 1144,
1157.) The burden is on the party challenging the sentencing
decision to show that the court abused its discretion. (People
v. Lee (2017) 16 Cal.App.5th 861, 866.)
3. The trial court did not abuse its discretion in
declining to strike Johnson’s prior strike under
Romero5
“[T]he Three Strikes initiative, as well as the legislative act
embodying its terms, was intended to restrict courts’ discretion
in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at
p. 528.) The law “does not offer a discretionary sentencing choice
. . . but establishes a sentencing requirement to be applied in
every case where the defendant has at least one qualifying
strike,” unless the court concludes it should make an exception
to the scheme because—“ ‘for articulable reasons [that] can
withstand scrutiny for abuse’ ”—the “ ‘defendant should be
treated as though he actually fell outside the Three Strikes
scheme.’ ” (People v. Strong (2001) 87 Cal.App.4th 328, 337–338.)
“Consistent with the language of and the legislative
intent behind the three strikes law,” our Supreme Court has
“established stringent standards that sentencing courts must
follow in order to find such an exception.” (Carmony, supra, 33
Cal.4th at p. 377.) The law “not only establishes a sentencing
5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
12
norm[;] it carefully circumscribes the trial court’s power to depart
from this norm and requires the court to explicitly justify its
decision to do so.” (Id. at p. 378.) The court “must consider
whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit,
in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or
violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161
(Williams).) A court’s “great power” to dismiss a prior strike
conviction should only be used in “ ‘extraordinary’ circumstances,
when the ends of justice demand it.” (People v. Mayfield (2020)
50 Cal.App.5th 1096, 1105.)
The record here does not support Johnson’s contention that
the court abused its discretion. The “nature and circumstances”
of Johnson’s crimes (Williams, supra, 17 Cal.4th at p. 161)
exhibited a callous disregard for human life. Johnson put
his gun to the victim’s face and pulled the trigger, killing her
in a dispute over half an ounce of marijuana and her having
called him “a bitch.” When Walker—who hadn’t done anything
to Johnson—tried to run away, Johnson shot him. Johnson later
explained that the witness he’d sought to have killed was not
Walker, but another individual.
The record doesn’t contain many facts about Johnson’s
prior strike. Johnson himself told the parole board that “we”—
referring to a group, apparently—“jumped on her [the victim],”
as she owed them money for drugs. The probation report states
the group kicked the victim in the face and took one dollar
from her.
13
Johnson admittedly had made some progress in
rehabilitation, taking classes and receiving positive chronos.
And the forensic psychologist in the most recent CRA opined
Johnson presented a low risk for violence—though he detailed
a number of remaining “relevant” risk factors. Nevertheless,
“[o]n this record, we see nothing about the nature and
circumstances of the present felonies and the prior strike
conviction or the particulars of [Johnson’s] background,
character, and prospects that suggests [he] could be deemed
outside the spirit of the Three Strikes law.” (People v. Dain
(2025) 115 Cal.App.5th 235, 252.) In short, we cannot conclude
this is a case “where no reasonable people could disagree that the
[defendant] falls outside the spirit of the three strikes scheme.”
(Carmony, supra, 33 Cal.4th at p. 376.)
4. The trial court did not abuse its discretion in
declining to strike Johnson’s firearm enhancements
Johnson contends the trial court’s denial of his request
to strike his firearm enhancements “was unsupported by
substantial evidence and was an abuse of discretion.” Johnson
also asserts the court “failed to address the applicable mitigating
factors identified by the defense”—specifically, of multiple
enhancements and childhood trauma. We disagree.
Section 1385, subdivision (c)(2) (section 1385(c)(2)), as
added by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1), provides that a sentencing court, “ ‘[i]n exercising
its discretion’ ” to dismiss a sentencing enhancement, “ ‘shall
consider and afford great weight to evidence offered by the
defendant to prove’ ” certain enumerated mitigating
circumstances, and “ ‘[p]roof of the presence of one or more
of these circumstances weighs greatly in favor of dismissing
14
the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.’ ” (People v. Walker
(2024) 16 Cal.5th 1024, 1028 (Walker).) “[I]f the court does
not conclude that dismissal would endanger public safety,
then mitigating circumstances strongly favor dismissing
the enhancement. But ultimately, the court must determine
whether dismissal is in furtherance of justice.” (Id. at p. 1036.)
The Walker court explained, “This means that, absent a danger
to public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial,
credible evidence of countervailing factors that ‘may nonetheless
neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance
of justice.’ ” (Ibid., quoting People v. Ortiz (2023) 87 Cal.App.5th
1087, 1098 (Ortiz).)
Section 1385(c)(2) lists nine mitigating circumstances.
Johnson contends two of them apply here: “(B) Multiple
enhancements are alleged in a single case. In this instance,
all enhancements beyond a single enhancement shall be
dismissed.”; and “(E) The current offense is connected to prior
victimization or childhood trauma.” (§ 1385(c)(2)(B), (E).)
We address each in turn.
Multiple enhancements. It appears Johnson means
to argue the court erred in declining to strike one of his two
firearm enhancements. Johnson notes he relied on the “multiple
enhancements” factor in the trial court, referring to both his
firearm enhancements and his five-year prior serious felony
enhancement. However, as noted, the court—over the
15
prosecution’s objection—granted Johnson’s request to strike
the five-year prior.
“Under section [1385(c)(2)], the trial court must give
great weight to a mitigating circumstance ‘unless the court
finds that dismissal of the enhancement would endanger public
safety.’ ” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 227.)
Subdivision (c)(2) expressly recognizes “that a court may decline
to strike an enhancement that would endanger public safety.”
(People v. Renteria (2023) 96 Cal.App.5th 1276, 1286 (Renteria).)
“The Legislature specifically defined ‘[e]ndanger public safety’
to mean ‘there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.’ ” (Gonzalez, at p. 227.)
Section 1385(c)(2) “does not require the trial court to
consider any particular factors in determining whether ‘there is
a likelihood that the dismissal of the enhancement would result
in physical injury or other serious danger to others.’ ” (People v.
Mendoza (2023) 88 Cal.App.5th 287, 299 (Mendoza).) There is
no requirement that a court’s finding of dangerousness be made
by clear and convincing evidence or any other elevated standard.
(People v. Anderson (2023) 88 Cal.App.5th 233, 240; Ortiz, supra,
87 Cal.App.5th at pp. 1096–1097.)
While “the current dangerousness of the defendant is
an appropriate factor to consider, as it will have some bearing
on whether dismissing the enhancement would endanger the
public, a crucial part of the inquiry is how the dismissal of the
enhancement will impact the length of the defendant’s sentence.”
(People v. Gonzalez, supra, 103 Cal.App.5th at p. 228.) Even
when a mitigating circumstance has been established and
there has been no showing that dismissal of the enhancement
16
would endanger public safety, a trial court may nevertheless
decline to dismiss the enhancement if dismissal would be
contrary to the interests of justice. (Walker, supra, 16 Cal.5th
at p. 1036.) In making such a determination, the court may
consider “the nature and circumstances of the crimes and the
defendant’s background, character, and prospects.” (People
v. Mazur (2023) 97 Cal.App.5th 438, 446.)
In declining to strike Johnson’s firearm enhancements,
the trial court stated it was “very concerned” that Johnson
had continued to possess deadly weapons while in prison, and
had violated other prison rules. As for Johnson’s background
and character, again, he killed Washington execution-style and
then took a shot at a witness as he tried to run away. A court
may rely on the circumstances of the offense to find a defendant
a danger to the public. (Cf. People v. Graham (2024) 102
Cal.App.5th 787, 798–799 [trial court did not abuse its discretion
in finding the defendant posed an unreasonable risk of danger
to public safety under sections 1001.36 and 1170.18 based on
the serious and violent nature of the crimes and the defendant’s
actions during the commission of those crimes]; see also Mendoza,
supra, 88 Cal.App.5th at p. 298 [determination of whether
dismissal would endanger public safety under section 1385(c)(2)
is similar to whether resentencing the petitioner would pose
an unreasonable risk of danger to public safety under section
1170.18, subdivision (b)]; Garcia, supra, 101 Cal.App.5th
at pp. 856–857.)
Childhood trauma. While Johnson discusses his difficult
childhood at some length in his argument that the court erred
in declining to strike his strike, his analysis of the issue under
section 1385(c)(2) is limited to one paragraph. Johnson asserts
17
“this factor was plainly established by the above-described
defense evidence about [Johnson’s] difficult and traumatic
upbringing, and the abuse he endured as a child at the
hands of his father.” Johnson then argues the court “never
explained what aggravating factors, if any, it was relying on
to counterbalance this factor, or whether and for what reasons
it was finding this factor to be inapplicable.”
There are two problems with Johnson’s argument. First,
because the trial court reasonably found any additional reduction
of Johnson’s sentence would endanger public safety, the presence
of the mitigating circumstance is irrelevant. (Mendoza, supra, 88
Cal.App.5th at p. 297 [“consideration of the mitigating factors in
section 1385(c)(2) is not required if the court finds that dismissal
of the enhancement would endanger public safety”]; Renteria,
supra, 96 Cal.App.5th at pp. 1289–1290 [legislative history shows
Legislature understood mitigating circumstance for multiple
enhancements did not require dismissal of enhancements
where dismissal would endanger public safety].)
Second, assuming Johnson made a sufficient showing of
childhood trauma, the record does not reflect a nexus between
that trauma and his crimes. (Cf. People v. Lopez-Tapia (2026)
120 Cal.App.5th 690, 698–701 [rejecting defendant’s contention
under section 1170, subdivision (b)(6) that his childhood trauma
was a contributing factor in his decision to join a gang at a
young age, and his gang membership in turn contributed to
his commission of witness dissuasion]; People v. Brown (2026)
121 Cal.App.5th 481, 485–486 [threshold determination of
whether childhood trauma was a contributing factor in the
commission of the offense is a quintessential factfinding process;
substantial evidence supported trial court’s finding that
18
defendant’s childhood trauma did not play a causal role in
leading him to commit the offense].) Johnson doesn’t explain
how growing up with his abusive, alcoholic father and his
early entry into gang life “[was] connected to” his point-blank
shooting of Washington over a small amount of marijuana.
When Dr. Koranda asked Johnson “what prompted [him] to
commit the murder,” “he offered that when they were discussing
the amount of marijuana that he was going to purchase, the
female victim called him a ‘bitch,’ describing that his father had
instilled the belief that women should never disrespect him or
talk to him in a certain manner. He also stated that the female’s
statement was a sign of disrespect towards him, as well as his
gang.” We doubt this is the sort of link between “childhood
trauma” and the commission of murder that the Legislature
had in mind when it enacted section 1385(c)(2).
5. The trial court did not err in reimposing the
upper term
Johnson also contends the trial court erred in imposing
the upper term on the attempted murder count and firearm
enhancements. Johnson urges us to follow People v. Gonzalez
(2024) 107 Cal.App.5th 312 (Gonzalez) rather than People v.
Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon-
Thompson). We decline.
As we noted, when conducting a resentencing hearing
under section 1172.75, subdivision (d)(2) requires the court to
“apply any other changes in law that reduce sentences or provide
for judicial discretion so as to eliminate disparity of sentences
and to promote uniformity of sentencing.” Effective January 1,
2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) amended
section 1170, subdivision (b) (section 1170(b)) to prohibit
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imposition of a sentence that exceeds the middle term where a
statute specifies three possible terms. (Stats. 2021, ch. 731, §
1.3.) Section 1170, subdivision (b)(2) permits imposing the upper
term “only when there are circumstances in aggravation of the
crime that justify the imposition of a term . . . exceeding the
middle term and the facts underlying those circumstances have
been stipulated to by the defendant or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”
The resentencing provision under section 1172.75 provides
an exception to the factfinding requirement of section 1170(b).
Section 1172.75, subdivision (d)(4) states:
“Unless the court originally imposed the upper
term, the court may not impose a sentence
exceeding the middle term unless there are
circumstances in aggravation that justify the
imposition of a term of imprisonment exceeding
the middle term, and those facts have been
stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial.”
The first clause—“Unless the court originally imposed
the upper term”—provides an exception from the second clause’s
factfinding requirement for defendants who were originally
sentenced to the upper term. According to the court in Brannon-
Thompson, the plain language of section 1172.75, subdivision
(d)(4) states the factfinding requirement under section 1170(b)
applies only if the court is imposing the upper term for the
first time. (Brannon-Thompson, supra, 104 Cal.App.5th at
pp. 466–467.) Brannon-Thompson concluded section 1172.75
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permits the court to reimpose an upper term sentence even if a
factfinder never found an aggravating factor beyond a reasonable
doubt. (Brannon-Thompson, at p. 458.)
We see no ambiguity in section 1172.75 and agree with
the Brannon-Thompson court’s interpretation of it. (See People
v. Cornett (2012) 53 Cal.4th 1261, 1265 [when interpreting a
statute, “[t]he plain meaning controls if there is no ambiguity
in the statutory language”].)
Citing Gonzalez, supra, 107 Cal.App.5th 312, Johnson
contends this statutory exception violates the Sixth Amendment.
People v. Mathis (2025) 111 Cal.App.5th 359, 372–373, review
granted Aug. 13, 2025, S291628 (Mathis) addressed this issue.
In Mathis, the version of section 1170(b) in effect at the time of
the defendant’s original sentence in 2017 granted the trial court
broad discretion to select any of the three prison terms provided
for the offense. The middle term was not presumptive and there
was no requirement that a jury or a court find a particular fact
to justify imposition of the upper term. Section 1170(b) did not
violate the Sixth Amendment because an additional factual
determination was unnecessary to impose a greater sentence.
(Mathis, at p. 373.)
According to Mathis, because this same statutory scheme
was in effect when the Legislature established section 1172.75,
the heightened factfinding requirement was not necessary for
defendants who originally received the upper term. (Mathis,
supra, 111 Cal.App.5th at p. 373.) Those defendants would
have been sentenced under the earlier version of section 1170(b),
which gave courts the broad discretion to dispense with the
heightened factfinding requirement. (Mathis, at p. 373.) Under
this version of section 1170(b), an upper term sentence would
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have complied with the Sixth Amendment when originally
imposed. (Mathis, at pp. 373–374.) When resentencing under
section 1172.75, a court need not engage in any additional
factfinding if the upper term originally was imposed.
Johnson notes that in Cunningham v. California (2007) 549
U.S. 270, the United States Supreme Court held unconstitutional
the version of section 1170(b) in effect when he was sentenced
in 1998. In People v. Dozier (2025) 116 Cal.App.5th 700, review
granted Feb. 11, 2026, S294597, our colleagues in Division Seven
addressed an issue left open in Mathis. Justice Segal posed
this question: “Can a resentencing court impose pre-2007 upper
terms based on circumstances not found true by a fact finder?”
(Dozier, at p. 705.) The court said the answer to this question
is yes. (Id. at pp. 705, 714 [“we conclude resentencing pre-2007
defendants like Dozier to an upper term under section 1172.75,
subdivision (d)(4), without heightened factfinding, does not
violate the Sixth Amendment”].)
The Supreme Court has granted review in People v. Eaton
(Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14,
2025, S289903, as well as in Dozier, and it will have the final
say on whether section 1172.75, subdivision (d)(4) permits a
court to reimpose an upper term sentence without satisfying the
factfinding requirement of section 1170(b). (See Mathis, supra,
111 Cal.App.5th at pp. 372–373, fn. 6.) Until then, we agree with
Brannon-Thompson, Mathis, and Dozier, and decline to follow
Gonzalez. (See also People v. Moss (2026) 120 Cal.App.5th 375,
380 [following “the many appellate courts disagreeing with
Gonzalez for the reasons stated by those courts”]; People v. Lua
(2026) 121 Cal.App.5th 472.)
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6. The parties agree the abstract of judgment must
be corrected to state Johnson’s credits accurately
After this appeal was underway, Johnson filed a motion
with the trial court to correct his presentence credits. The
abstract of judgment filed February 7, 2025, after Johnson’s
January 31, 2025 resentencing, listed only his credits at the
time of his original sentencing in 1998. The trial court granted
the motion and, on November 26, 2025, issued a minute order
correctly stating the presentence credits as 10,451 days (637
actual days plus 96 conduct credits for 733 days as of 1998 plus
another 9,718 actual days as of January 31, 2025). However,
the amended abstract of judgment filed December 1, 2025 states
the wrong date (November 26 rather than January 31) and the
wrong credits. The parties agree the superior court must correct
these errors.
We direct the superior court on remand to amend the final
abstract of judgment to state the correct sentencing date and
credits. (People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate
court may order modification of inaccuracies in abstract of
judgment]; People v. Moore (1991) 226 Cal.App.3d 783, 788
[modifying judgment to correct conduct credits].)
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DISPOSITION
The superior court is to prepare an amended, corrected
abstract of judgment and to forward a certified copy to the
California Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, Acting P. J.
We concur:
ADAMS, J.
HANASONO, J.
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