People v. Johnson

• Citation: 79 Cal.App.5th 1093,295 Cal.Rptr.3d 353
• Decision Date: 17 June 2022
• Docket Number: A160025
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse JOHNSON III, Defendant and Appellant.
• Court: California Court of Appeals

79 Cal.App.5th 1093

295 Cal.Rptr.3d 353

The PEOPLE, Plaintiff and Respondent,

v.Jesse JOHNSON III, Defendant and Appellant.

A160025

Court of Appeal, First District, Division 3, California.

Filed June 17, 2022

Office of Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos, Supervising Deputy Attorney General, Teresa Torreblanca and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

First District Appellate Project, Jonathan Soglin, San Francisco; Law Offices of Tiffany J. Gates, Tiffany J. Gates, Santa Rosa, for Defendant and Appellant.

Petrou, J.

A jury convicted defendant Jesse Johnson III of multiple offenses arising from a domestic violence incident against his wife in the presence of their daughters. Among other things, he was convicted of two separate counts (count 5 and count 2) of dissuading a witness by force or threat of force or violence under Penal Code section 136.1, subdivision (c)(1)¹ (" section 136.1(c)(1)"), which makes attempting to dissuade a witness from reporting a crime using force or the threat of force a felony. His count 5 conviction was based on a statement Johnson made to his family that if the police came, he would blow his brains out. His count 2 conviction was based on a separate statement Johnson made to his wife that if she called the police, they would both be dead before the police arrived.

As to his count 5 conviction (based on the statement to his family that he would blow his brains out), Johnson contends there was insufficient evidence as his threat of self-harm did not constitute substantial evidence of harm to any "witness or victim or any third person," as required by section 136.1(c)(1). We agree and conclude that a defendant who threatens violence upon himself does not threaten a "third person" within the plain meaning of section 136.1(c)(1).

As to his count 2 conviction (based on the statement to his wife that they would both be dead if his wife called the police), Johnson contends the court committed instructional error by incorrectly stating the law under section 136.1(c)(1). We agree with the People's contention that Johnson forfeited this argument and that there is no need for us to reach the merits of his instructional error claim because his substantial rights were not affected.

In addition, we conclude that Johnson's count 2 conviction was improperly classified on his abstract of judgment as a violent felony. We also conclude that any unpaid balance of the booking fee imposed on Johnson must be vacated based on recent legislation.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of May 26, 2019, Johnson entered the two-story Antioch house where his wife, Jane Doe 1, lived with their four daughters: P., S.J., S., and Jane Doe 2, who ranged in age from 22 to 15 years old. At the time, Johnson and Doe 1 were married but separated. That morning, the couple got into an argument that became so heated it woke the house. Someone called the police, and Johnson was later arrested.

On July 31, 2019, an information was filed charging Johnson with one felony count of first-degree residential burglary ( § 459 ; count 1), two felony counts of dissuading a witness by force or threat ( § 136.1, subd. (c)(1) ; counts 2 and 5), one felony count of criminal threats ( § 422, subd. (a) ; count 3), one felony count of unlawful possession of a firearm following a felony conviction ( § 29800, subd. (a)(1) ; count 7), one felony count of unlawful possession of ammunition ( § 30305, subd. (a)(1) ; count 8), one misdemeanor count of spousal battery ( § 243, subd. (e)(1) ; count 4), and one misdemeanor count of child endangerment ( § 273a, subd. (b) ; count 6). The information alleged on count 1 that Johnson was armed with a firearm during the burglary ( § 12022, subd. (a)(1) ), and on count 5 that Johnson personally used a firearm while attempting to dissuade a witness ( § 12022.5, subd.(a)).

Johnson's jury trial disclosed the following evidence:

A. Prosecution's Case

1. May 26, 2019

On May 26, 2019, Doe 2 called 911 from her bedroom closet on the second floor of the house. A recording of the call was played to the jury. On the call, Doe 2 explained that she woke up when she heard her mother screaming and said her father was hitting her mother. Johnson could be heard yelling expletives in the background. When asked if her father had been drinking or doing drugs, Doe 2 responded, "I'm not sure. He doesn't live here anymore." She twice repeated that her father no longer lived at the house and that she did not know where he was living. After the operator stated officers were on the way, Doe 2 stated she thought her father had a gun because "a second ago he just said that if the police come here he's gonna – he's gonna blow his brains out." The 911 operator ended the call when she heard officers talking to Johnson downstairs.

Officer Robert Ibanez, one of the multiple responding officers who testified at trial, had been dispatched to the Antioch house because the reporting party had called and said her father Johnson was out of control, he possibly had a gun, and if police came he would blow his brains out. When Doe 1 opened the door for the officers, she was crying and appeared to be in fear. Officer Ibanez entered the house and called out for Johnson, who emerged from the downstairs bedroom. He asked Johnson to take a seat on a couch, which he did. While Officer Ibanez stayed with Johnson, other responding officers made contact with Johnson's wife and daughters.

Officers Denny Barrera and Kevin Tjahjadi, both of whom testified at trial, located Doe 2 upstairs. Officer Barrera thought she looked upset, scared, and timid. She appeared hesitant to speak to the officers in the open hallway but agreed to speak in her bedroom and did so in a whisper. Their recorded conversation was played to the jury. Doe 2 explained that her father did not live at the house and was not there when she went to bed the night before. She woke up around 5 a.m. when she heard her mother screaming. She ran into the master bedroom and saw her father choking her mother. Seconds later, her older sisters P. and S.J. came into the room and tried to get their father off their mother. In the tussle, Johnson punched S.J. in the face. He also hit Doe 2 with his palm and struck the right side of her chin. Her mother ran out of the room with her father in pursuit.

Doe 2 returned to her room and called 911 from the closet. From there, she heard more yelling. She confirmed her father said that if the police came he would blow his head off. When Officer Barrera followed up about her belief that her father had a gun, she responded, "I'm pretty sure he does... [¶] ... I've seen it before." She had last seen the gun a week or two earlier. She thought the gun might be in her mother's room, and pleaded, "Y'all can get him outta here. Right? ... [¶] ... I just had to be sure ‘cause he's, like, really manipulative." At the end of the exchange, Doe 2 repeated, "I really wish I weren't scared... [¶] ... I wish I weren't scared."

During Doe 2's interview, Officer Tjahjadi, who was standing near her bedroom door, saw S.J. pacing in the hallway and attempting to peek into Doe 2's room. Officer Tjahjadi approached S.J. and quietly asked, "Where's the gun?" S.J. tilted her head left towards her shoulder. Officer Tjahjadi took this to mean the gun was downstairs or she was not ready to share any information because her father was there. When asked again about the gun, S.J. whispered, "When he leaves." She appeared too scared to tell the officer where the gun was as long as her father was downstairs.

After they finished speaking with Doe 2 and removed Johnson from the house, Officers Tjahjadi and Barrera made their way to the downstairs bedroom and found a loaded handgun atop a laundry bin filled with clothes.

Officer Barrera subsequently interviewed S.J. Their conversation was recorded and played to the jury. Asked about the firearm they found, S.J. said she saw it "[w]hen [her father] told [her] if [the police] came he was going to blow his brains out." Her father had come downstairs and pointed the gun at himself. S.J. and another sister ran downstairs and asked him to put the gun away because they did not want him to shoot himself or their mother. She saw him deposit the handgun on the clothes in the downstairs room.

Officer Daniel Fachner, another responding officer who testified at trial, spoke with Doe 1 that morning. Doe 1 was crying throughout the recorded interview, which was played to the jury. Doe 1 explained she and Johnson were married but in the process of separating. Johnson had not been to the house in over a month. The day before, he sent her threatening texts and she responded that if he came over, she would call the police. That morning, he showed up unexpectedly at 4 a.m. and walked into her bedroom drunk, argumentative, and threatening. He was angry because she had spoken to someone he considered his enemy. At some point, the argument got physical. Johnson grabbed her neck and tried to hit her as she tried to leave the room. He called her "maggot bitches." Soon after, their children came running into the room. At that point, he struck her with his fist.

This incident was not the first time they had a physical altercation. The police had been called before, but Johnson had never been arrested. Johnson regularly threatened that if he ever got arrested, he would return and kill her. Doe 1 said she needed to relocate because a protective order would just make him angry and he would disregard it. She did not know where Johnson was living at the time. Asked whether she would cooperate with the District Attorney if Johnson were charged, she replied, "I'm afraid."

2. Further Investigation

A couple of days after Johnson's arrest, Doe 1 spoke with an Antioch Police Department detective, who recorded the...