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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 LANDON RYAN JOHNSON, ) N O . E D C V 1 9 - 4 1 8 - J L S ( K S ) 11 Petitioner, ) 12 ) v. ORDER ACCEPTING FINDINGS AND ) 13 ) RECOMMENDATIONS OF UNITED 14 R. JOHNSON, Warden, ) STATES MAGISTRATE JUDGE ) 15 Respondent. ) 16 _________________________________ )

17 18 19 Pursuant to

, the Court has reviewed the Petition for Writ of Habeas 20 Corpus, all the records herein, and the Report and Recommendation of United States 21 Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of those 22 portions of the Report to which Petitioner has raised objections (“Objections”). Pertinent 23 Objections are addressed below. Petitioner’s Objections are overruled. 24 25 First, Petitioner objects that the Report quotes the California Court of Appeal’s 26 inaccurate summary of the evidence from his trial for assault with a deadly weapon. 27 (Objections at 1.) According to Petitioner, the California Court of Appeal inaccurately stated 28 that a “security officer saw [Petitioner] put something in the trash can and walk away” after 1 the victim was assaulted. (Id.) But this evidence had no relevance to any claim raised in the 2 Petition. Petitioner states that he is not challenging his underlying conviction for assault with 3 a deadly weapon. (Dkt. No. 1 at 16.) Rather, his current Petition challenges the denial of his 4 post-conviction petition to recall his sentence pursuant to California’s Proposition 36. The 5 security officer’s testimony has no relevance to Petitioner’s Proposition 36 claims. 6 7 Second, Petitioner objects to the Report’s finding that the California courts correctly 8 found him automatically ineligible for Proposition 36 relief because of his current conviction. 9 (Objections at 3.) As stated in the Report, evidence of Petitioner’s conviction for assault with 10 a deadly weapon, a serious felony, was sufficient to demonstrate his ineligibility. (Report at 11 12.) The case discussed by Petitioner, People v. Perez,

(2018), does not help 12 him because the facts of that case involved the use of a vehicle to commit assault with force 13 likely to produce great bodily harm, rather than assault with a deadly weapon. Assault with 14 force likely to produce great bodily harm does not require a jury to find that a defendant was 15 armed with a deadly weapon, and therefore, a Proposition 36 court may have to examine the 16 facts beyond the judgment of conviction to determine whether such a defendant was armed 17 with a deadly weapon (rendering him ineligible for Proposition 36 relief). See id. at 1063. 18 This inquiry was unnecessary here because Petitioner was convicted of assault with a deadly 19 weapon, meaning that the jury necessarily found that he was armed with a deadly weapon. 20 Indeed, Perez recognized that a conviction for assault with a deadly weapon was “undoubtedly 21 sufficient to show that the defendant was armed with a deadly weapon during the commission 22 of the offense and is therefore ineligible for resentencing.” See id. at 1063. 23 24 Finally, Petitioner objects to the Report’s finding that his vagueness claim is meritless. 25 (Objections at 5.) A defendant whose conduct is clearly prohibited by the statute cannot raise 26 a successful vagueness challenge. See Kashem v. Barr,

(9th Cir. 2019). 27 Petitioner points out that the allegedly minor nature of the victim’s injury (a finger laceration 28 requiring sutures) and the government’s failure to recover the weapon rendered it speculative 1 || that his conduct was assault with a deadly weapon. (Objections at 5-6.) As stated in the 2 || Report, however, no injury was required for assault with a deadly weapon, but because an 3 || injury did occur, it was a relevant consideration. (Report at 16.) The victim sustained a 4 || laceration to her finger after Petitioner stood over her and made a swiping motion in front of 5 || her face or neck area, which the victim had shielded with her hand. (Lodg. No. 1 at 4.) The 6 || only reasonable conclusion to draw from these circumstances, including the evidence of the 7 || victim’s injury, was that the assault was committed with a deadly weapon, i.e., an object that 8 || was “extrinsic” to Petitioner’s body and that was used in such a manner as to be “capable of 9 || producing and likely to produce, death or great bodily injury.” See People v. Aguilar,

4th 1023, 1028-29, 1034 (1997). 11 12 ORDER 13 14 IT IS ORDERED that: (1) the Petition is denied; and (2) Judgment shall be entered 15 || dismissing this action with prejudice. 16 17 || DATED: January 19, 2020 18 | JOSFPHINE L. STATON 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28