People v. Johnson

• Decision Date: 28 March 1995
• Docket Number: No. F020694,F020694
• Citation: 39 Cal.Rptr.2d 463,33 Cal.App.4th 623
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fredrick Debrigadier JOHNSON, Defendant and Appellant.

Page 463

39 Cal.Rptr.2d 463

33 Cal.App.4th 623

The PEOPLE, Plaintiff and Respondent, v. Fredrick Debrigadier JOHNSON, Defendant and Appellant.

No. F020694.

Court of Appeal, Fifth District, California.

March 28, 1995.

Certified for Partial Publication ^*

Review Denied July 12, 1995.

[33 Cal.App.4th 625] John Ward, under appointment by the Court of Appeal, Oakland, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Shirley A. Nelson and Stan Cross, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Acting Presiding Justice.

Defendant was charged by amended information as follows: counts I and II--separate incidents of forcible rape (Pen.Code, § 261, subd. (a)(2)) ¹ and count III--attempted forcible oral copulation (§§ 288a, subd. (c), 664). It was further alleged as to each count that defendant had been convicted of and served prison terms for two prior sex offenses (§ 667.6, subd. (b)) and had been convicted of two prior serious felonies (§ 667, subd. (a)). The information also alleged the offenses charged in counts I and II were serious felonies (§ 1192.7, subd. (c)(3)).

On October 19, 1993, the court granted defendant's motion to bifurcate the prior conviction allegations and a jury trial commenced. The jury found defendant guilty on all counts. Defendant then waived his right to a jury trial on the prior conviction allegations.

On October 25, 1993, the court granted a motion to amend counts I and II of the amended information with respect to the section 667.6, subdivision (b) allegations. The amendments reflected defendant had been convicted of a violation of section "261, Subsection 2, rape by force or fear on or about ... April 13th, 1987 ... in the Superior Court of the State of California, for the County of Kern," and that defendant had been convicted of a violation of "Arizona Revised Statute 1340 ... to wit, sexual assault, on or about ... September 3rd, 1981...."

On the same date, the court found all of the special allegations to be true.

At the sentencing hearing, the court denied defendant probation and sentenced him to state prison for a total term of 36 years. The court imposed the upper term of eight years on count I, a consecutive eight-year upper term on count II, two consecutive ten-year enhancements pursuant to section 667.6, subdivision (b), and a concurrent four-year upper term on count III. The court granted a total of 224 days of custody credits and ordered defendant to pay a $200 restitution fine (Gov.Code, § 13967, subd. (a)).

Defendant filed a timely notice of appeal.

FACTS

Since defendant has limited his appeal to sentencing issues, the following facts are taken from the report of the probation officer filed November 30, 1993:

"On July 3, 1993, officers of the Bakersfield Police Department were contacted by Claudia Denise [P.], age 18, who advised that she had been raped, on June 26, 1993, by the defendant, Fredrick Debrigadier Johnson. The victim related that the defendant resided in the same apartment complex and that prior to June 26, 1993, she had never spoken to the defendant other than saying hello to him as they passed one another. The victim stated she was aware of his name from conversations with his wife, Sheila Hill.

"Ms. [P.] stated that on June 26, 1993, she had been talking to Sheila Hill and that during the conversation, Sheila had indicated the defendant was a manager of a Taco Bell Restaurant. The victim stated that she told Sheila she was employed with the Rally Hamburger chain and that since she had experience working in fast food, she wondered if the defendant might be able to help her get a second job. Sheila Hill indicated that she would tell the defendant about Ms. [P.'s] interest in a second job.

"Claudia [P.] stated that at approximately 9:00 p.m. on the same date, the defendant came to her apartment asking if he could borrow some aspirin and asking if she was really looking for a second job. Ms. [P.] stated that she invited the defendant into her apartment while she obtained the aspirin and that at this time, the defendant had her write down her name, Social Security number, date of birth and description of her current job at Rally's. The defendant subsequently left her apartment returning 15 to 20 minutes later with a job application. Claudia [P.] stated that she noticed the application had 'Lloyd's' on the top and that the defendant had stated he did not have a Taco Bell application with him, but that this old application was sufficient as it contained the basic information. Claudia [P.] stated that she filled out the application and that the defendant waited in her apartment while she did so. Upon the victim handing the application over to the defendant, he proceeded to grab her around the neck, forcing her backward on the couch and he began choking her. Claudia [P.] stated that the defendant choked her until she lost consciousness.

"The victim stated that when she regained consciousness she was lying flat on her back in her bed and the defendant was on top of her and taking her shirt off. Claudia stated that she said something to the effect of 'What are you doing?' and that the defendant told her to shut up or he would kill her. The defendant continued removing her shirt and proceeded to grab her around the neck with one of his hands and again began choking her. The victim stated that while the defendant held the one hand on her neck, holding her down onto the bed, he proceeded to remove the rest of her clothing. The defendant then forced her legs open and began having vaginal intercourse for two to three minutes. Claudia [P.] stated that she tried to resist the defendant, but every time she started to move, he would apply pressure to her neck. Claudia [P.] stated that at one point she started to scream and the defendant covered her mouth with his hands stating, 'Shut up or I'll kill you.'

"Ms. [P.] stated that the defendant forced her to have intercourse with him for two to three minutes and she was unsure whether or not the defendant had ejaculated. Ms. [P.] stated that the defendant subsequently began putting his clothing back on and proceeded to grab her by the arm, pulling her up from the bed and telling her to take a shower and to wash herself off. The defendant led her by the arm to the bathroom, again ordering her to get into the shower and wash off. The victim stated that as she showered, the defendant was walking around the apartment and telling her that if she told anyone, he would kill her.

"...

"Claudia [P.] told the officers that she was terrified of the defendant which is why she waited seven days to report the offense. Ms. [P.] stated that on July 1, 1993, the defendant drove by her place of work and within a short period of time one of her co-workers told her she had a telephone call. Ms. [P.] stated that when she answered the phone there was a voice on the other end stating, 'Remember what I told you. I'll kill you if you tell anyone.' Ms. [P.] proceeded to quit her job on July 2, 1993."

DISCUSSION

I. DID THE TRIAL COURT PROPERLY ENHANCE DEFENDANT'S SENTENCE?

Defendant contends the 20-year enhancement of his sentence must be stricken because, in his view, section 667.6, subdivision (b) does not authorize the use of foreign convictions such as his 1987 Arizona conviction for sexual assault.

At the time of the instant offenses, section 667.6 stated in relevant part:

"(a) Any person who is found guilty of violating subdivision (2) or (3) of Section 261 [rape], Section 264.1 [rape by foreign object], subdivision (b) of Section 288 [lewd or lascivious acts with child under age 14], Section 288.5 [continuous sexual abuse of a child], Section 289 [penetration of genital or anal openings by foreign object], or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person who has been convicted previously of any of those offenses shall receive a five-year enhancement for each of those prior convictions provided that no enhancement shall be imposed under this subdivision for any conviction occurring prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction....

"(b) Any person convicted of an offense specified in subdivision (a) who has served two or more prior prison terms as defined in Section 667.5 for any offense specified in subdivision (a), shall receive a 10-year enhancement for each of those prior terms provided that no additional enhancement shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction...." (Stats.1989, ch. 1402, § 7, p. 6156.)

Defendant argues on appeal:

"The trial court erred in using appellant's Arizona conviction as part of this enhancement because section 667.6(b) does not authorize the use of foreign convictions. Section 667.6(b) provides in pertinent part: 'Any person convicted of an offense specified in subdivision (a) who has served two or more prior prison terms as defined in Section 667.5 for any offense specified in subdivision (a), shall receive a 10-year enhancement for each of those prior terms....' (Emphasis added.) Thus, by its language, section 667.6(b) is limited to ... those crimes listed in subdivision (a) of Penal Code section 667.6.... Section 667.6(a), however, does not contemplate the use of foreign convictions, but rather specifically limits itself to certain violations of the California Penal Code. The offenses contained in section 667.6(a) are as follows: '[P]aragraph (2), (3), or (7) of subdivision (a) of Section 261, Section 264.1, subdivision (b) of Section...