People v. Johnson
Decision Date | 09 July 1985 |
Citation | 216 Cal.Rptr. 807,170 Cal.App.3d 585 |
Court | California Court of Appeals Court of Appeals |
Parties | Previously published at 170 Cal.App.3d 585 170 Cal.App.3d 585 The PEOPLE, Plaintiff and Respondent, v. Lionel JOHNSON and Donald Carlos Anderson, Defendants and Appellants. Crim. B 004176. |
Ann Kough and O'Loughlin & Kough, Los Angeles, for defendant and appellant Lionel Johnson.
William C. Spater, Los Angeles, for defendant and appellant Donald Carlos Anderson.
John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., and Ernest Martinez, Deputy Atty. Gen., for plaintiff and respondent.
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In a two count information filed by the District Attorney of Los Angeles County, appellants Johnson and Anderson were charged in Count I with rape and rape in concert, in violation of Penal Code sections 261 and 264.1. It was further alleged in the commission of the offense charged in Count I, that appellant Anderson personally used a dangerous and deadly weapon, to wit, a knife, within the meaning of Penal Code section 12022, subdivision (b).
Count II charged both appellants with first degree burglary in violation of Penal Code section 459. It was further alleged in Count II that Anderson personally used a dangerous and deadly weapon, to wit, a knife, within the meaning of Penal Code section 12022, subdivision (b).
It was further alleged that each appellant had suffered two prior convictions, within the meaning of Penal Code section 667, subdivision (a).
Pursuant to Penal Code section 995, Anderson's motion to strike the use allegations pursuant to Penal Code section 12022, subdivision (b) was granted as to each count. Johnson's motion to strike the allegations concerning his prior convictions was granted.
After a jury trial both appellants were found guilty as charged in the information. As to the matter of Anderson's prior convictions, which had been bifurcated at his request at an earlier time, and submitted for the court's determination, such allegations were found to be true.
Each appellant submitted a motion for a new trial which was denied. As to Anderson, the court denied probation and sentenced him as follows:
As to Count II, the conviction for a violation of Penal Code section 459, burglary, which was selected as the base term, the court imposed the upper term of six years. As to Count II, the conviction for Penal Code sections 261.2, 264.1, rape and rape in concert, the court imposed the upper term sentence of nine years, and made the sentence consecutive to that in Count II, pursuant to Penal Code section 667.6, subdivision (c). In addition, the court imposed a five year sentence for each prior conviction, those sentences to be consecutive to each other, and consecutive to Counts I and II, for a total sentence of 25 years.
DEFENSE 1
Appellant Anderson additionally raises the following issues on appeal:
1. The evidence produced at trial was insufficient to show a specific intent to commit larceny, and therefore his conviction for burglary must be set aside; and
2. Various sentencing errors require that the matter be remanded for resentencing, including:
a. The trial court's failure to state the reasons for imposing the high term in Count II, and to state reasons for imposing consecutive sentences; and
b. The trial court's failure to exercise its discretion by ruling that Penal Code
section 667, subdivision (a) mandates a consecutive sentence.
ANY ERROR IN NOT GIVING CALJIC INSTRUCTION 2.15 WAS HARMLESS 2
THE TRIAL COURT DID NOT COMMIT MISCONDUCT AND DID NOT UNFAIRLY LIMIT CROSS- EXAMINATION OR THE PRESENTATION OF DEFENSE EVIDENCE 2
THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY WITH AN UNDERLYING INTENT OF LARCENY 2
THE TRIAL JUDGE'S FAILURE TO STATE REASONS FOR SELECTING CERTAIN SENTENCE CHOICES, AND THE GROUNDS FOR HIS REASONS IN SELECTING OTHER SENTENCE CHOICES DOES NOT REQUIRE A REMAND AS TO APPELLANT ANDERSON 2
At the time of sentencing, Anderson's counsel requested the trial court to stay imposition of the sentence on the two prior convictions. The trial judge stated as follows:
Anderson contends that under the reasoning of People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, wherein the California Supreme Court held that mandatory provisions in Penal Code sections 190-190.5 were still subject to the trial court's discretion and power under Penal Code section 1385, the trial court does have the power to stay any enhancements pursuant to Penal Code section 667(a) which states as follows:
While we are aware that our Supreme Court has granted hearings in several cases (People v. Fritz, Crim. No. 23838; People v. Golodrina, Crim. No. 24170; People v. Eberhardt, Crim. No. 24504, 165 Cal.App.3d 1151, 211 Cal.Rptr. 280; People v. Weaver, Crim. No. 24503) in order to consider the issue of whether or not the trial court has the power to stay enhancements pursuant to Penal Code section 667(a), and that the published case of People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27, supports Anderson's position, we are of the belief that the term shall in Penal Code section 667(a) means shall in the mandatory sense.
We perceive no problem or ambiguity with Penal Code section 667(a) when read in conjunction with Penal Code section 1170.1, which authorizes a trial court to strike certain enhancements. Penal Code section 1170.1 does not make reference to Penal Code section 667(a).
Penal Code section 667(a) is based upon an initiative passed by the voters, as part of Proposition 8. The People have spoken, and we see no...
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People v. Johnson
...332 226 Cal.Rptr. 332 718 P.2d 455 PEOPLE v. Lionel JOHNSON et al. Supreme Court of California. April 17, 1986. Prior report: Cal.App., 216 Cal.Rptr. 807. The above-entitled cause is transferred to the Court of Appeal, Second Appellate District, Division Three, with directions to reconsider......
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People v. Johnson
...v. Lionel JOHNSON and Donald Carlos Anderson, Appellants. Supreme Court of California, In Bank. Sept. 20, 1985. Prior Report: Cal.App., 216 Cal.Rptr. 807. Petitions for review Submission of additional briefing, otherwise required by rule 29.3, California Rules of Court, is deferred pending ......