People v. Johnston CA3

BACKGROUND

In 2002, Johnston pled guilty to battery causing serious bodily injury (§ 242/243 subd. (d)) and assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court also imposed four one-year prior prison term enhancements. (§ 667.5, subd. (b).) Johnston struck another inmate in the county jail from behind. The inmate slumped forward and hit his face on a table. When he tried to stand to defend himself, Johnston punched him in the face and jaw numerous times. Johnston fractured the victim’s jaw in three places. At his resentencing hearing, Johnston’s counsel asked the trial court to strike at least one of his prior strike convictions pursuant to Romero. He also requested that the trial court apply the revised penalty provisions of the Reform Act and resentence Johnston to two times the principal term (or eight years in state prison). Defense counsel

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

2 correctly informed the trial court that the weight of appellate authority at the time had concluded the Reform Act did not apply to resentencing under section 1172.75. Counsel noted, however, that the Supreme Court had granted review in…