People v. Johnson

• Decision Date: 22 May 2007
• Docket Number: No. H028782.,H028782.
• Citation: 59 Cal.Rptr.3d 405,150 Cal.App.4th 1467
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Romundo JOHNSON, Defendant and Appellant.

59 Cal.Rptr.3d 405

150 Cal.App.4th 1467

The PEOPLE, Plaintiff and Respondent, v. Romundo JOHNSON, Defendant and Appellant.

No. H028782.

Court of Appeal, Sixth District.

May 22, 2007.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General, for Plaintiff/Respondent, the People.

Under appointment by the Court of Appeal Jeffrey A. Glick, for Defendant/Appellant, Romundo Johnson.

PREMO, J.

On August 1, 2004, defendant Romundo Johnson fought with his girlfriend and held her by the throat until she passed out. On August 8, 2004, he punched her in the face and elsewhere about her body and stabbed her in the arm. On August 12, 2004, he ripped out the telephone because he did not want her to use it any more.

A jury found defendant guilty of one count of corporal injury to a cohabitant (Pen.Code, § 273.5, subd. (a))¹ and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) based upon the August 1 incident; three counts of corporal injury to a cohabitant (§ 273.5) arising from the August 8 incident; and one count of disabling a telephone line (§ 591) based upon his removal of the telephone from the residence on August 12. The trial court sentenced him to 16 years and four months in prison.

On appeal, defendant argues that he cannot be convicted of three violations of section 273.5 for the single assault that occurred on August 8. He also argues that allowing evidence of the out of court statement of a previous victim violated his right to confrontation and cross-examination under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford); there was insufficient evidence to convict him of disabling a utility line because there was no evidence his conduct was "unlawful"; and he was entitled to 36 days of presentence custody credit.

We agree with only defendant's final contention and shall modify the judgment accordingly. As modified, we shall affirm.

I. Facts

The victim, known as Jane Doe at trial, lived with defendant for about two or three months during 2004. On August 1, 2004, Doe and defendant had been drinking wine when defendant became violent and choked her so tightly she passed out and landed, face down, on the hard kitchen floor. The fall resulted in a knot on her forehead and a bruise by her eye.

A week later, defendant became angry with Doe because he thought she had been talking to one of his friends. As Doe testified, "That's when he beat me up real bad." He punched her in the nose, eyes, and mouth. He choked her and held her by her throat against the wall. He struck her on her neck, her arm, her lower back, and her leg. He also stabbed her in the left arm. Doe could not see what it was he used to stab her; she just knew that she suffered a bleeding wound during the struggle. At trial, Doe still had a scar on her left upper arm.

The prosecution introduced photographs of Doe's injuries taken on August 12, 2004, four days after the beating. The photographs showed Doe with two black eyes, a split lip, bruising on her neck, upper chest, and the right side of her face. There was bruising and an open wound on her arm. The back of her neck was bruised as was the part of her back over the left shoulder blade and her right hip. There was bruising on the undersides of both arms that, Doe speculated, must have occurred when defendant held her back as she tried to fight him off.

When the beating was over, Doe did not call the police because she did not want defendant to get in trouble. When, at her sister's urging, she called the police on August 12, 2004, rather than go to the police department, Doe asked the police to come to her because she was "embarrassed" to go outside.

On the morning of August 12, 2004, before Doe called the police, Doe and defendant had another argument. Defendant told her she had too many people in' the house. He cut the telephone cord, pried the telephone jack out of the wall with a hammer, cut the cables on the television, and left the apartment, taking the telephone with him because, he said, he did not want her to use it.

Epifanio Sevillo, a former public safety officer with the City of Marina, testified about defendant's involvement in a prior incident of domestic violence. In August 1995, Sevillo responded to a report of a domestic disturbance. When he reached the address, he knocked and, at first, did not hear anything. After a second knock he heard a woman screaming from inside the apartment. Defendant answered the door. There was blood on his hands and his shirt. A woman was screaming from the back of the residence. Sevillo went inside and found a woman in the bathroom, sitting on the toilet, slumped over and covering her face. She had blood on her hands and her face. When the woman removed her hands from her face, Sevillo saw that her nose was swollen and red and the bridge of her nose was purplish. The woman was "pretty emotional, distraught" and crying. Sevillo spoke to her to see if she was okay and "make sure she got some medical treatment." Sevillo asked her "what happened" and she said, "He punched me in the face, look at my nose." Sevillo then determined that the woman had been living with defendant and that he was the father of her one-year-old child. Sevillo identified photographs of the woman with a red, swollen, and bleeding nose. This, he said, was her condition when he saw her in August 1995.

The prosecution also produced another prior victim who had had a dating or habitation relationship with defendant. In November of 2002, the victim and defendant had an argument about the music being played in their residence. In his anger defendant damaged bottles in the kitchen and plants and tables in the living room. He broke the mantelpiece and he broke or threw on the floor the items that had been on the mantelpiece, the fireplace tools, and the stereo speaker. Then, in leaving, defendant pushed the victim so hard that she almost fell over the balcony railing.

Defendant did not testify. His defense was to challenge Doe's credibility and argue that she must have received her injuries when she went out to a local bar to check on her uncle.

II. Discussion

A. The Multiple Corporal Injury Convictions

As noted above, defendant was convicted of three counts of corporal injury upon a cohabitant (§ 273.5) arising from the August 8, 2004 incident.² The trial court imposed sentence on all three counts but stayed the terms for two of them pursuant to section 654. Although he received punishment for only one of the three counts, defendant argues that the multiple convictions were improper because the incident was a "single continuous assault," albeit involving "multiple blows." The issue is whether defendant may receive multiple convictions for violating section 273.5 where the convictions are based upon multiple injuries inflicted during a single course of conduct. The question initially, is one of law, subject to our independent review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801, 35 Cal.Rptr.2d 418,883 P.2d 960.)

Section 954 generally permits multiple convictions: "An accusatory pleading may charge ... different statements of the same offense" and "the defendant may be convicted of any number of the offenses charged." The issue must be distinguished from the closely related question of whether a defendant may receive multiple punishment based upon a single act or course of conduct. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48, disapproved on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 1231, 45 Cal.Rptr.3d 353, 137 P.3d 184.) Section 654 prohibits multiple punishment for the same act or omission.³ The Supreme Court has recognized the tension between section 954 and section 654. The solution adopted, in general, is "to permit multiple convictions on counts that arise from a single act or course of conduct—but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions." (People v. Ortega, supra, 19 Cal.4th at p. 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.) Indeed, that is what the trial court did in this case.

Defendant relies upon the principle that, "[a]bsent express legislative direction to the contrary, where the commission of a crime involves continuous conduct which may range over a substantial length of time and [a] defendant conducts himself in such a fashion with but a single intent and objective, that defendant can be convicted of only a single offense." (People v. Djekich (1991) 229 Cal.App.3d 1213, 1221, 280 Cal.Rptr. 824.) Citing People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078 (Harrison), the Attorney General responds that in a case such as this one, the proper analysis involves a determination of when the charged crime is completed. We agree with the Attorney General.

In Harrison, the Supreme Court rejected the contention that the defendant could not be convicted of multiple acts of digital penetration committed in the course of a 10-minute attack on the victim. The defendant had argued "that multiple digital penetrations, committed during a brief `continuous' assault upon a struggling victim, constitute only a single violation of section 289." (Harrison, supra, 48 Cal.3d at p. 327, 256 Cal.Rptr. 401, 768 P.2d 1078.) The statute under which the defendant had been convicted proscribed "penetration, however slight, of the genital or anal openings of another person" by any foreign object if accomplished by force or fear. (Former § 289, subd. (a).) The defendant had attacked the victim in her bedroom and, in the course of the ensuing struggle, he inserted his finger in her vagina. The victim's resistance caused the defendant to remove his finger. He reinserted it twice more over the...