People v. Johnson
| Decision Date | 29 December 2020 |
| Docket Number | C086549 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. THOMAS MAURICE JOHNSON, Defendant and Appellant. |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the predawn hours of February 17, 2016, a resident of a home that backed up to a bike trail in Chico heard a woman yelling "rape" and "fire," and called 911. When a police officer arrived at the bike trail, he saw defendant Thomas Maurice Johnson approximately 50 to 75 feet away, pants around his knees, emerge from shrubs beside the bike trail and flee. The officer then saw Jane Doe, whose pants were down below her buttocks emerge from the same area.1 Defendant was ultimately apprehended with the help of a canine officer and arrested after a struggle.
Jane Doe testified that defendant had grabbed her, pulled her off of the bike trail, and told her to drop her pants. She testified that defendant "put his hand down [her] throat and pulled out scar tissue" several times during the attack, leading to injuries to her throat.
Defendant, who testified at trial, offered a very different account. He described a drug deal gone bad. He testified that he agreed to sell Jane Doe crystal methamphetamine. He gave her a plastic bag containing methamphetamine, and, in return, she gave him only $5, significantly less than it was worth. When he attempted to get the methamphetamine back from Jane Doe, she swallowed it. He put his fingers down Jane Doe's throat, trying to force her to spit up the swallowed drugs. He fled when police arrived because he had drugs on him. His pants, defendant told the jury, sagged a little below his waist, but not below his knees.
Defendant was charged with kidnapping to commit rape, assault with intent to commit rape and/or other sex offenses, and resisting an executive officer. Great bodily injury enhancements were also alleged. A jury found defendant not guilty of kidnapping to commit rape, but guilty of the lesser included offenses of simple kidnapping and felony false imprisonment. The jury also found defendant not guilty of assault with intent to commit rape, but found him guilty of the lesser included offense of simple assault. Additionally, he was found guilty of resisting an executive officer. The jury further found true the great bodily injury enhancement allegations regarding Jane Doe in connection with the simple kidnapping and felony false imprisonment convictions. The trial court sentenced defendant to an aggregate term of 11 years eight months.
On appeal, defendant asserts: (1) his conviction of false imprisonment must be reversed because it is a necessarily lesser included offense of kidnapping, both of which were lesser included offenses under count 1, kidnapping to commit rape; (2) the trial court erred in prohibiting trial counsel from cross-examining Jane Doe concerning prior inconsistent statements and her mental and emotional instability 14 months after the incident; (3) the trial court erred in excluding the testimony of a defense expert who would have testified about police investigations, procedures, and crime scene investigations, and the crime scene processing that occurred in this case; (4) the trial court erred in excluding a defense expert offered to testify as to the physical characteristics of crystal methamphetamine; (5) the prosecutor committed prosecutorial misconduct in his rebuttal closing argument (a) by discussing matters not in evidence, specifically the legal ramifications for false statements in a search warrant affidavit, misstating the law, and improperly vouching for the prosecution's witness, (b) in arguing matters not in evidence to improperly vouch for Jane Doe's credibility and by misstating the law when discussing her testimony, and (c) by suggesting that defendant had other unknown victims, thus arguing facts not in evidence, inviting the jurors to speculate defendant had committed similar crimes, and appealing to the passions and prejudices of the jurors;2 (6) the cumulative effect of the errors deprived him of a fair trial; (7) the trial court erred in failing to stay punishment for assault pursuant to Penal Code section 654;3 and (8) we must remand the matter to the trial court for a hearing on defendant's ability to pay fines, fees, and penalty assessments pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Because false imprisonment is a lesser included offense to kidnapping, we reverse the conviction of felony false imprisonment and the true finding on the great bodily injury enhancement allegation attached to that conviction and vacate the sentences imposed thereon. We also order execution of the sentence imposed on the assault conviction stayed pursuant to section 654.
Otherwise, we shall affirm, concluding that, although there were several errors, defendant was not prejudiced, individually or cumulatively. We also conclude that he is not entitled to an ability to pay hearing.
Defendant was charged by criminal information with kidnapping to commit rape (§ 209, subd. (b)(1); count 1), assault with intent to commit rape and/or other sex offenses (§ 220, subd. (a)(1); count 2), and resisting an executive officer (§ 69; count 3). In connection with count 1, the information alleged that defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). In connection with count 2, the information alleged that defendant inflicted great bodily injury on the victim during the commission of an assault with the intent to commit rape within the meaning of section 12022.8.
In 2016, Jane Doe was using pain medication, marijuana, and methamphetamine. She had been living that lifestyle for "about eight or nine years, on and off." She acknowledged she had been convicted of welfare fraud and was still on probation. And she acknowledged that use of methamphetamine was a violation of probation. On cross-examination, she acknowledged that she had also been arrested in Texas.
On February 17, 2016, Jane Doe went for a walk. She had consumed methamphetamine. She went to Walgreens and to 7-Eleven on East Avenue to buycigarettes and candy. After she exited 7-Eleven, she encountered defendant. Defendant walked with Jane Doe briefly. After three to five minutes, the two parted ways.
Jane Doe later came to a bike path. She testified that, as she was starting to cross the bike path, defendant suddenly grabbed her from behind "kind of in a neck hold" and pulled her onto the bike path. Jane Doe begged defendant not to hurt her. Defendant told her to be quiet, and he pulled her off onto the dirt to the side of the bike path.
Jane Doe testified that she tried to scream, but that defendant "was just too strong for" her. She testified that defendant "kept [her] from screaming by pulling the scar tissue out of [her] neck and . . . making it unable for [her] to talk." According to Jane Doe, defendant did that three or four times. She testified she "saw bits and pieces of . . . [her] neck thrown onto the pavement."
Jane Doe testified: Jane Doe testified that, at the time she lost consciousness, she was about six feet onto the bike path.
At some point, defendant told Jane Doe to drop her pants. She tried to resist, but eventually she did what defendant said because she was afraid he was going to kill her. She testified she dropped her pants and then her head hit the pavement. She could not recall what happened after that.
Stacy Morgan lived in a house that backed up to the bike path. Morgan heard a woman screaming, After speaking to a 911 operator, Morgan looked outside and saw defendant run towards her neighbor's yard, pulling his pants up. Defendant jumped into Morgan's neighbor's yard. Morgan remembered talking to detectives later in the morning. She told them that she heard a female yell, " 'Rape, fire,' " twice.
At approximately 5:15 a.m., Sergeant Todd Lefkowitz of the Chico Police Department responded to the bike path. Lefkowitz described the location of the bike path where he responded as just north of East Avenue. People's exhibit 8, an aerial view, shows the bike path, in the middle of the block running north and south between and parallel with White Avenue and Pillsbury Road, and running perpendicular to East Avenue, across the sidewalk and into a crosswalk across East Avenue. From East Avenue, Lefkowitz drove his vehicle onto the bike path at a 45-degree angle, facing northwest, unable to turn fully onto the bike path. He directed his spotlight down the bike path. Lefkowitz saw a bicycle on the bike path. After a few seconds, he saw defendant, pants down around his knees, jump out from the shrubs east of the bike path onto the bike path approximately 50 to 75 feet from where Lefkowitz stopped his vehicle. Lefkowitz testified that only defendant's pants were down, not his underwear. Defendant looked in Lefkowitz's direction and then turned and ran. Defendant had difficulty running because his pants were around his knees. Defendant attempted to mount the bike, but fell. He tried to pull his pants up and get on the bike again, and, when that failed, he ran and jumped over a backyard fence.
Lefkowitz backed his vehicle up, and then successfully...
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