People v. Johnson

1

THE PEOPLE, Plaintiff and Respondent, v. LEROY JOHNSON, Defendant and Appellant.

F083895

California Court of Appeals, Fifth District

May 31, 2024

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Super. Ct. No F09904296 Fresno County.

John F. Vogt, Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Defendant Leroy Johnson, along with Neko Wilson, Dawn Singh Christopher Butler, Andrew Jones, and Jose Reyes, was arrested in connection with the July 2009 murders of Gary and Sandra DeBartolo. Following defendant's arrest, he was linked to a separate robbery and physical attack on Philip N., which occurred a week before the murders.^[1] For the crimes committed against the DeBartolos, defendant was charged with capital murder. In 2021, the jury convicted him of two counts of murder with robbery and burglary special circumstance findings and a multiple-murder special circumstance finding. (Pen. Code, §§ 187, subd. (a)/189, 190.2, subd (a)(3), (17)(A), (G).)^[2] For the crimes committed against Philip, the jury convicted defendant of attempted murder with personal infliction of great bodily injury (GBI), second degree robbery with personal infliction of GBI, and mayhem. (§§ 664/187, subd. (a), 211/212.5, 203, 12022.7, subd. (a).)

In a bifurcated proceeding between the guilt and penalty phases, the trial court found the three prior serious or violent felony conviction allegations true within the meaning of the "Three Strikes" law.^[3] (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)- (d).)

At the conclusion of the penalty phase, the jury returned two verdicts of life without the possibility of parole (LWOP) for the murders of the DeBartolos. (§ 190.3.)

In 2022, defendant was sentenced to two consecutive terms of LWOP for murder, with two additional 10-year terms for the prior felony convictions enhancements, and a consecutive term of 27 years to life for attempted murder, with an additional 10-year term for the prior serious felony conviction enhancements and three-year term for personal infliction of GBI. Under section 654, the court imposed and stayed terms of 25 years to life for robbery, with an additional 10 years for the prior conviction enhancements and three years for the GBI enhancement, and 25 years to life for mayhem, with an additional 10 years for the prior conviction enhancements.

Defendant filed a timely notice of appeal raising three categories of claims. First, defendant requests we conduct an independent review of the proceedings related to his Pitchess^[4] motions and the trial court's determinations that there was no information subject to disclosure. Second, defendant seeks remand for resentencing in light of Senate Bill Nos. 567 and 81, which amended sections 1170 and 1385, respectively. ^[5] Defendant was sentenced one month after Senate Bills 567 and 81 took effect, and he claims that the trial court was unaware of the scope of its sentencing discretion under sections 1170 and 1385 as recently amended, necessitating remand for resentencing. (People v. Salazar (2023) 15 Cal.5th 416, 425 (Salazar); accord, People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).)^[6] With respect to section 1385, he also claims that even if the court was aware of the recent change in the law, we should adhere to Walker's view that the statute creates a rebuttable presumption in favor of dismissal where, as here, there are mitigating circumstances, and find that under Walker, the court abused its discretion in declining to strike the enhancements. (People v. Walker (2022) 86 Cal.App.5th 386, 396 (Walker), review granted Mar. 22, 2023, S278309.) Defendant argues that trial counsel's request to strike the enhancements and request for leniency at sentencing was sufficient to preserve this claim of error, but if we find the claim forfeited for failure to object, he is entitled to remand for resentencing because trial counsel rendered ineffective assistance of counsel (IAC). Finally, defendant requests we order correction of the abstract of judgment to reflect the $1,000 restitution fine imposed under section 1202.4, subdivision (b), was stayed and to remove the reference to a GBI enhancement attached to his mayhem conviction.

The People do not object to defendant's request for an independent review of the Pitchess proceedings or to the correction of the clerical errors identified in the abstract of judgment. However, they disagree that the record affirmatively reflects the trial court was unaware of the scope of its sentencing discretion under sections 1170 and 1385 as amended, and, if error is assumed, they contend it is harmless because it is clear from the record that remand would be an idle act. (Salazar, supra, 15 Cal.5th at p. 431; Gutierrez, supra, 58 Cal.4th at p. 1391.) They also contend defendant forfeited his claim that the trial court otherwise abused its sentencing discretion under section 1385, and they dispute that trial counsel's failure to object to the court's sentencing choice constituted IAC.

As discussed herein, we conducted an independent review of the Pitchess proceedings and conclude the trial court followed the proper procedure, created an adequate record of the in camera hearing, and did not abuse its discretion in determining there was no information subject to disclosure. Additionally, we reject defendant's claims that the record reflects the trial court was unaware of the scope of its sentencing discretion under sections 1170 and 1385 as amended by Senate Bills 567 and 81, and, therefore, he is not entitled to remand under Gutierrez and Salazar. Further, we conclude that his claim the court abused its discretion under section 1385 even if it was aware of the change to the law was forfeited for failure to object and we reject his IAC claim. Accordingly, we affirm the judgment, but we direct the trial court to issue an amended minute order and abstract of judgment to reflect that the $1,000 restitution fine imposed was stayed and that there is no GBI enhancement attached to the mayhem conviction.

FACTUAL SUMMARY^[7]

I. Attack on Philip N.

In July 2009, Philip N. was in Fresno on a business trip. As he returned to his motel room from breakfast, defendant began following him and talking to him. When Philip unlocked the door to the room, defendant forced his way inside. Defendant demanded money and when Philip resisted, defendant broke his nose and dislocated his jaw. After Philip threw some cash on the floor, defendant ripped a towel bar out of the bathroom wall, hit Phillip two or three times with it, and tried to cut his throat with something sharp. Philip passed out and did not see defendant leave, but he subsequently regained consciousness and called 911. Although he no longer remembered these details at trial 12 years later, Philip told responding officers that defendant also hit him in the head with the toilet tank lid, used a broken piece of the lid to stab him in the head and face, and hit him with a handgun wrapped in a T-shirt. Officers found Philip and the bathroom covered in blood, and the tank lid was in the bathroom in pieces.

Philip was hospitalized for five days. He had significant blood loss requiring a transfusion, and would have died had he not regained consciousness and called 911. He had multiple lacerations to his face, head, neck, arms and hands; injuries to his nose and ear that extended into the cartilage; partial amputation of one finger; a spinal fracture; and broken bones in his hands. During surgery, an arterial bleed was noted.

After defendant was arrested in connection with the murders of the DeBartolos, police received information that defendant might be involved in the attack on Philip, and Philip immediately selected defendant's photograph from a six-pack photo lineup. Drops of blood found outside the motel room also matched defendant's DNA.

At the time of trial, Philip still had multiple scars, his finger remained bent, and he had "discomfort" in his forehead, nose and hands, and in the back of his head.

II. Murders of Gary and Sandra DeBartolo

One week after the attack on Philip, Gary and Sandra DeBartolo were murdered. The couple had a large, "very sophisticated" marijuana growing operation set up inside their Kerman home. Wilson, who knew Gary and been inside the house, masterminded a plan to steal marijuana and cash from the DeBartolos.^[8] Defendant joined Wilson, Singh, Butler, Jones, and Reyes in the plan to rob the DeBartolos. While Wilson drove around nearby in a separate vehicle to avoid recognition, defendant and Reyes entered the home. Singh, Butler, and Jones waited outside in Singh's getaway car. Although there was no evidence the plan included harming the DeBartolos, Reyes was armed with a gun and Johnson was armed with a knife when they entered the home, to ensure cooperation. While inside, however, Johnson cut Sandra's throat and then Gary's throat. Gary survived long enough to call 911.

Law enforcement happened to have the house under surveillance at the time, based on information that a gang had possibly targeted it for robbery, and Singh's vehicle was seen arriving and then departing. After a vehicle pursuit that ended when Singh's car crashed into another vehicle, Singh, Butler, Jones, and defendant were arrested. Reyes was subsequently arrested approximately one week later, and Wilson was arrested in early August 2009.

DISCUSSION

I. Review of Pitchess Proceedings

A. Background

In 2016...