People v. Johnson, H029905 (Cal. App. 3/27/2007)
| Decision Date | 27 March 2007 |
| Docket Number | H029905 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DANIEL GERARD JOHNSON, Defendant and Appellant. |
Appeal from the Santa Clara County Super. Ct. No. SS041952A.
While on probation for a 2004 conviction of indecent exposure with a prior conviction and failure to update the required sex offender annual birthday re-registration (former Pen. Code, § 314.1, now § 314, § 290, subd. (a)(1)(D)),1 defendant Daniel Gerard Johnson was found in violation of probation for consumption of alcohol and new offenses including threatening a peace officer, loitering in or about a public toilet with lewd or unlawful intent, and resisting arrest. (§§ 69, 647, subd. (d) (647(d)), 148, subd. (a).) Defendant received concurrent three-year aggravated terms in state prison on the original charges. On appeal, he challenges the sufficiency of the evidence of loitering with unlawful intent, the constitutionality of the aggravated terms, and the competency of counsel in failing to object to the sentence.
Around 8:30 p.m. on June 13, 2005, Helga Ferguson, an off-duty bartender at the Shadow Box bar in Seaside, saw defendant, a familiar figure around the bar, in the bar's rear parking lot as she went into the women's restroom. They did not make eye contact or speak to each other. The outside door to the women's restroom did not have a functioning lock, but the toilet stall doors could be locked and Ferguson did so. As she was sitting on the toilet, she heard the outer door squeak, and thinking it was on-duty bartender Brenda Harris, she called out, "Brenda, is that you?" A deep voice said "um" or "uh-huh" and mumbled or talked. She knew it was not Brenda, and after she called out once again, "Brenda, is that you?" she pulled up her pants, wedged her foot against the door to hold it partially closed, opened it and looked out into the restroom.
Defendant was standing inside the restroom. Ferguson immediately slammed the stall door closed and locked it; she started kicking and pounding to draw the attention of others outside. She could not hear if defendant said anything because she was making so much noise herself. She became hysterical and started crying and screaming. She was "very much" frightened. Eventually, she looked out the stall door again and saw that the restroom entrance door was wide open and defendant was gone. Ferguson did not hear the door squeak or anyone leave because of her screaming. She ran out of the restroom, went behind the bar, and asked the bartender to call the police. Police responded and took a report.
Ferguson stated she thought she was in the stall about a minute before she heard the outer door open. She was unable to estimate how long she was in the stall after seeing defendant in the restroom. She stated she did not have "a clue" as to how much time went by, and she did not know how long she had been kicking and screaming.
Ferguson had seen defendant an hour earlier when he came into the bar and talked to Harris, and she had been in the bar on a prior occasion when defendant periodically went to the restroom and returned, having removed an item of clothing on each trip. When "it came down to a tank top and three-quarter-long shorts," the bartender (not Ferguson) told defendant to leave. The police were called and a report was made on that occasion. At the contested violation of probation (VOP) hearing, defendant admitted to removing his jacket and sweat pants, but denied removing the tank top.
A week and a half before June 13th, a Seaside police officer had come into the Shadow Box looking for defendant, and the officer asked the employees to call the police if defendant returned to the bar.
A couple of hours after the incident with Ferguson, early on June 14, Seaside Police Officer Nicolas Borges encountered defendant on the corner of Fremont Boulevard and Birch Avenue. Defendant appeared intoxicated, had an odor of alcohol on his breath, and watery and bloodshot eyes. He was uncooperative. Defendant, a "large" and "heavy" person, refused to separate his legs when Borges told him he was to be searched before being put in the patrol car. Borges kicked defendant's legs apart to perform the pat search.
Defendant demanded to be taken directly to the county jail and refused to allow a booking photograph or to enter the booking cell when asked. While police officers forced defendant into the booking cell, he stated, "I'm going to make you all taze me and shoot me and kill me."
As defendant was being transported to the Monterey County jail, he pointed his finger at Borges and said he was "going to kick [Borges's] fucking ass." He made similar threats to assisting officer Charlton. He also told Charlton, "When I see you on the streets, I'm going to beat your fucking ass." While defendant was seated in the patrol car, he spat on the window. Defendant never complained of having injuries and Borges saw none.
At the VOP hearing, defendant admitted going into the Shadow Box bar, but stated he left after a short conversation with the bartender. He went to the parking lot in the alley behind the bar and spoke to one Henry Burner. Burner said "something about they don't like niggers drinking up in here."
Defendant saw Ferguson walking toward the restroom and recognized her as someone he had seen playing video games at the bar. He called to her, Ferguson said something and he thought she was calling his name. He answered, Ferguson opened the door and "got all hysterical." He realized she said "Brenda" only after she got hysterical. At that point, he said, "It's just best for me to leave" and "I'm gone."
Defendant said he did not go into the stall and did not try to open that door.
Later that night, defendant encountered Borges, whom he described as "hysterical." Borges asked defendant what he was doing there and said that defendant had violated his probation. He told defendant to wait while backup was called, and defendant did. Defendant stated that Borges was afraid of him and "[w]hen he's alone, he keeps his distance," which defendant estimated at about 14 feet.
When other officers arrived, they handcuffed defendant and then kicked his feet "real hard," causing him pain. He told officers that he had bunions and a broken foot. The officers also pulled defendant's hair, scratched him, punched him in the ribs, and slammed his head on the trunk of the patrol car. He asked to be taken to the county jail so his ribs could be x-rayed. He stated he was unable to lie on them for 36 days afterward. Later he showed his injuries from the police encounter to a public defender investigator and photographs were taken. In rebuttal, Borges testified that he did not see any officer kicking defendant other than to separate defendant's legs to conduct a pat search, scratching or otherwise inflicting any injury on defendant. The struggle to get defendant into the booking cell lasted less than three seconds.
Defendant acknowledged that he was asked to leave the Shadow Box bar on the occasion when he removed some clothing. He explained, He recognized Ferguson from the previous incident but he never had any "bad contacts" with her. When asked whether she made any derogatory comments about him, he said, Defendant thought he had a tendency to frighten people although he did not try to do so.
The trial court found defendant in violation of probation for consumption of alcohol, resisting arrest, and loitering about a public toilet with an unlawful purpose and sentenced him to concurrent three-year upper terms in state prison on the 2004 charges. This appeal ensued.
Defendant contends: (1) the court abused its discretion in finding a violation of section 647(d), because the evidence of "loitering" is insufficient and the prosecution failed to present evidence that he had the requisite purpose in entering the bathroom. (2) The imposition of the upper term sentences violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and defendant's rights to a jury trial and due process under the Sixth and Fourteenth Amendments. (3) Trial counsel was ineffective in failing to object to the court's imposition of upper term sentences without a statement of reasons and without objecting that the court violated defendant's jury trial right articulated by Blakely.
"[A] court is authorized to revoke probation `if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation.'" (People v. Rodriguez (1990) 51 Cal.3d 437, 440, (Rodriguez), quoting § 1203.2, subd. (a).) "[F]acts in a probation revocation hearing [are] provable by a preponderance of the evidence." (Rodriguez, supra, 51 Cal.3d at p. 441.) "`[P]robation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense.'" (Id. at p. 442.)
Trial courts have "very broad discretion in determining whether a probationer has violated probation." (Rodrigue...
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