People v. Johnson

1

THE PEOPLE, Plaintiff and Respondent, v. DONAVAN WAYNE JOHNSON, Defendant and Appellant.

H049257

California Court of Appeals, Sixth District

August 2, 2023

NOT TO BE PUBLISHED

Order Filed Date 8/28/23

(Monterey County Super. Ct. No. 18CR010752)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

It is ordered that the opinion filed herein on August 2, 2023, be modified as follows:

On page 30, at the end of the third full paragraph, insert the following footnote:

In a petition for rehearing, Johnson seeks rehearing on the ground the court failed to specifically address his related argument that the trial court erred by imposing upper terms based on facts that were already used to enhance his punishment citing section 1170, subdivision (b)(5). Trial counsel failed to raise this objection at Johnson's sentencing hearing and the argument is forfeited. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v Scott (1994) 9 Cal.4th 331, 356 (Scott).) Forfeiture will apply to "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including "cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or to give a sufficient number of valid reasons." (Id. at p. 353.) Even if Johnson did not forfeit this argument, however, it is without merit. There can be no doubt Johnson inflicted harm on K.R. well in excess of that which would support his convictions and the true findings on the charged enhancements. "[T]he use of force or fear beyond that which is necessary for the accomplishment of the defendant's criminal purpose may be considered as a factor in aggravation." (People v. Reeder (1984) 152 Cal.App.3d 900, 922.)

There is no change in the judgment. Appellant's petition for rehearing is denied.

Wilson, J.

A jury convicted defendant Donavan Wayne Johnson of multiple offenses, including one count of torture, after he repeatedly slashed and stabbed the mother of his children with a box cutter. The trial court sentenced him to life in prison plus 11 years and four months.

On appeal, Johnson raises the following arguments related to his convictions: (1) there was insufficient evidence to support his conviction for torture; (2) the trial court erred in admitting expert testimony on intimate partner violence; (3) the trial court misinstructed the jury on the crime of torture; (4) the cumulative effect of the errors warrants reversal; and (5) he cannot be convicted for violating both Penal Code section 245,^[1] subdivision (a)(1) and subdivision (a)(4).

Johnson also raises multiple issues regarding his sentencing: (1) the trial court misapplied section 654 with respect to several counts; (2) he is entitled to resentencing as a recent amendment to section 654 gives the trial court discretion to stay a longer term as opposed to a lesser term; (3) he is entitled to resentencing because the trial court no longer has the authority to impose an upper term sentence unless a jury has found true the aggravating circumstances; (4) his one year term for misdemeanor child endangerment was unauthorized; (5) the record must be corrected to reflect that the trial court did not impose a fine under section 1202.5; and (6) at resentencing, the trial court must consider dismissing enhancements under recent amendments to section 1385.

For the reasons explained below, we will reverse the judgment for the limited purpose of resentencing.

I. Factual and Procedural Background

A. Procedure

On March 1, 2021, the Monterey County District Attorney filed an amended information charging Johnson with attempted premeditated murder (§§ 664, 187, subd. (a); count 1); aggravated mayhem with an enhancement for personal use of a deadly weapon (§§ 205, 12022, subd. (b)(1); count 2); torture (§ 206; count 3); attempted kidnapping with an enhancement for great bodily injury involving domestic violence (§§ 664, 207, subd. (a), 12022.7, subd. (e); count 4); domestic violence with enhancements for personal use of a deadly weapon and inflicting great bodily injury (§§ 273.5, subd. (a), 12022, subd. (b)(1), 12022.7, subd. (e); count 5); assault with force likely to cause great bodily injury with an enhancement for inflicting great bodily injury (§§ 245, subd. (a)(4), 12022.7, subd. (e); count 6); first degree burglary (§§ 459, 460, subd. (a), 462, subd. (a); count 7); misdemeanor child endangerment (§ 273a, subd. (b); count 8), and assault with a deadly weapon with an enhancement for inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (e); count 9).

At the conclusion of the trial, the jury found Johnson not guilty of attempted murder (count 1), aggravated mayhem (count 2), attempted kidnapping (count 4), and first degree burglary (count 7). The jury convicted Johnson of torture (count 3), domestic violence (count 5), assault with force likely to produce great bodily injury (count 6), child endangerment (count 8), assault with a deadly weapon (count 9), the lesser included offense of simple mayhem (count 2), and the lesser included offense of attempted false imprisonment (count 4). The jury also found true the enhancements for personal use of a deadly weapon and infliction of great bodily injury on all the associated counts on which Johnson had been convicted, i.e., the lesser included offense of simple mayhem (count 2), domestic violence (count 5), and assault with force likely to produce great bodily injury (count 6).

On July 1, 2021, the trial court sentenced Johnson to a life term for torture (count 3).^[2] The court also imposed a consecutive determinate term of 11 years and four months, consisting of the upper term of four years for domestic violence (count 5) plus five years for the great bodily injury enhancement, one year for the deadly weapon enhancement, four months (one-third the middle term of one year) for attempted false imprisonment (count 4) and 364 days for misdemeanor child endangerment (count 8).

Pursuant to section 654, the court imposed and stayed the following terms: (1) an upper term of eight years for simple mayhem plus one year for personal use of a weapon (count 2); (2) an upper term of four years for assault with force likely to cause great bodily injury, plus five years for the inflicting great bodily injury (count 6); and (3) an upper term of four years for assault with a deadly weapon (count 9).

The trial court imposed a $5,000 restitution fund fine (§ 1202.4, subd. (b)), a parole violation restitution fund fine of $5,000 (§ 1202.45) (stayed pending successful completion of parole), $3,583.53 in victim restitution (§ 1202.4, subd. (f)), a $280 court operations assessment (§ 1465.8, subd. (a)(1)), and a $210 court facilities assessment (Gov. Code, § 70373).

Johnson timely appealed.

B. Facts

1. Prosecution case

At approximately 11:00 a.m. on November 12, 2018, Salinas Police Officer James Knowlton responded to a report of a domestic disturbance in the City of Salinas. On the way, Knowlton saw a vehicle described as belonging to the suspect driving away from the scene. When Knowlton activated his lights and siren, Johnson began driving erratically, running two red lights, before stopping in front of the emergency department at Natividad Medical Center. Johnson got out of the car and stood next to it. Knowlton pointed his firearm at Johnson and ordered him to get on the ground, but Johnson was uncooperative. Knowlton repeated his command three or four times before Johnson ultimately complied. Johnson was agitated and said something about his passenger needing help. As Knowlton and another officer handcuffed Johnson, Knowlton saw K.R. sitting in the passenger seat, bleeding from a cut on her forehead. After hospital personnel took K.R. inside, Knowlton searched the vehicle and saw a black box cutter on the center console.

Salinas Police Officer Joseph Kinney also responded to the domestic disturbance report and, on his arrival at Natividad Medical Center, he observed other officers taking Johnson into custody. Kinney approached Johnson's vehicle and saw K.R. in the passenger seat. K.R. was bleeding "profusely" from a "pretty deep" cut on her forehead. K.R. told Kinney she had cuts to her legs as well and Kinney did not think she could walk on her own. Emergency room personnel came out and took her inside for treatment. Kinney followed, and the video, including audio, from his body camera was played for the jury. Photographs of K.R.'s wounds when she was in the hospital were admitted into evidence and showed cuts on her forehead, near her left ear, on her right arm, and on both legs.

An investigator for the district attorney, Tim Willmore, went to see K.R. while she was at the hospital. K.R. was in a wheelchair, with her left leg immobilized and extended in a brace. He observed that the cut on her forehead was, in his estimation, three to three-and-a-half inches in length. He described the other cuts near her ear and arm as being between two and three inches long. Willmore noted that K.R. had a defensive wound on the webbing of her right hand, between her thumb and index finger. When Willmore saw K.R. again in December 2018, she could walk slowly, with a limp, and had difficulty moving her left leg which was still in a brace.

Over two years later, in February 2021, Isabelle Diaz, also an investigator with the district attorney's office, visited K.R. at the clothing store where she was working. K.R. was sitting behind a partition so Diaz could not tell if she continued to have trouble walking or...