Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA054794, Thomas K. Herman, Judge. Modified and, as modified, affirmed.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Derek Johnson, appeals from the judgment entered following a remand for resentencing after he appealed his convictions for premeditated attempted murder, aggravated mayhem and carjacking, with great bodily injury, dangerous weapon use and prior serious felony conviction findings (Pen. Code, §§ 664/187, 205, 215, 12022.7, 12022, subd. (b)(1), 667, subd. (a)-(i)). Sentenced on remand to state prison for 58 years to life, Johnson claims there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is modified in part and affirmed as modified.
FACTUAL BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Tiffany Lee testified that in December 2004, she allowed defendant Johnson to move into her apartment because he needed a place to stay. On December 15, Lee’s landlord told her Johnson could not stay there any longer because he was not on the lease. Lee relayed this information to Johnson, who readily agreed to move out and asked only that Lee give him a ride to his North Hollywood studio. She agreed. She gave him the keys to her car so he could load his belongings. Lee had just started leasing a 2002 Chevrolet Cavalier a few days earlier. The car did not yet have license plates and she only had one set of keys for it.
While Johnson loaded up the car, Lee was talking on the phone. When she got off, she went downstairs to discover both Johnson and her car were missing. Thinking he might have just gone to the store, Lee waited 30 minutes for him to return. When he did not, she called a mutual friend, Crystal Simons, for help in tracking Johnson down.
Lee also tried to make a stolen car report over the phone, but the police would not take the report because her car did not have plates and Lee did not know the vehicle identification number. She kept all her vehicle paperwork in the car.
Simons arrived at Lee’s apartment. They called the house where Amber Ward lived. Ward was the mother of Johnson’s infant child. Ward lived with her mother, Deidre McAlpin. McAlpin answered the phone when Simons and Lee called, and she mistakenly told them Johnson was not there. Simons then drove Lee to McAlpin’s house. When they arrived, at about midnight, they saw Lee’s car parked in McAlpin’s driveway.
Lee went to knock on the front door while Simons waited in the driveway with her cell phone, ready to call the police if there was any problem retrieving Lee’s car. Lee testified that when Johnson answered the door, she “just asked him why he took my car and can I have my keys back.” Johnson looked angry. He asked Lee how she had gotten there and who had brought her. When Johnson saw Simons in the driveway he said, “This bitch brought you here.” Johnson ran toward Simons and punched her, knocking her to the ground. He kicked her in the back and the stomach until she stopped moving. Then he dragged her by the hair to the end of the driveway. Johnson also took Simons’s cell phone and put it in his pocket.
Meanwhile, Lee had gotten into the car and retrieved her paperwork. She started to call the police on her cell phone, but Johnson ran back up the driveway, grabbed the cell phone and snapped it in half. He dragged Lee out of the car by her hair, got into the driver’s seat, put the key in the ignition and started the engine. Lee tried to grab the ignition key to stop Johnson from leaving. Finally, he pushed her to the ground, closed the car door, made an arm motion as if shifting the car into reverse, and started backing down the driveway.
Lee testified Johnson backed the car down the driveway and over Simons’s body. Johnson stopped and Lee could see Simons underneath the car. Johnson started backing up again, dragging Simons’s body into the middle of the street. Johnson then put the car into a forward gear and took off down the street. The car’s rear wheels again went over Simons, whose body jumped a few inches into the air, turned over and came to a rest in the street.
Deirdra McAlpin testified she lived on La Brea Avenue with her daughter Amber Ward and Ward’s infant daughter. Johnson was the baby’s father. Although he did not live with them, he often visited. He had come over to visit Ward on the evening of the incident. Between 11:00 p.m. and midnight, after McAlpin had retired to her bedroom, she answered two phone calls from a woman who was looking for Johnson. Because Johnson and Ward were not in the living room, McAlpin said Johnson wasn’t there. After hanging up, McAlpin thought to check the driveway. She saw Ward and Johnson talking in a car which was parked in the driveway. McAlpin “hollered out that somebody had called about their car.”
Shortly thereafter Johnson and Ward came into the house and McAlpin went back to bed. Later, the doorbell rang. McAlpin got out of bed and started for the front door, but Johnson went to deal with it. McAlpin assumed it was something to do with the car. At some point, she got up again and went into the kitchen, where she found Ward. Ward was looking through the kitchen window and she told McAlpin “somebody was down in the driveway.”
McAlpin went outside and saw Johnson and Lee fighting. Johnson was pulling Lee’s hair and McAlpin told him to stop. Lee “was trying to get to her car, to get those keys from him is what was happening.” It was “like she was trying to wrangle the keys out of the ignition.” McAlpin could also see Simons “right there at the end of the driveway. She was laid out.”
McAlpin yelled at Johnson to stop fighting with Lee. Johnson got into the car and “one of [Lee’s] legs was hanging out and the other one was inside like she was trying to struggle for the keys.” McAlpin heard the ignition turn on and the engine start, and then Johnson started reversing down the driveway. McAlpin testified: “I was pretty flabbergasted because the girl was laying – then my attention went to the girl who was laying at the end of the driveway. And . . . I said [to Johnson], ‘Please stop. Please stop. The girl’s at the end of the driveway. Stop.’ ” “Q Did Derek [Johnson] turn around? [¶] A I didn’t notice that Derek turned around. Derek . . . reversed, and the girl’s body as I said was at the end of the driveway. . . . And then Derek reversed the car over her, and he came forward, and reversed back out of the driveway and then went north down La Brea. [¶] Q So he came back and went over her; is that correct? [¶] A Yes. [¶] Q You saw him drive over her? [¶] A Yeah, I did. Yes, I did.” Simons was lying in the street, so McAlpin ran into the street to stop traffic “so nobody else would hit her.”
Simons was taken to UCLA Medical Center, where it was determined she had sustained a shattered right eye socket and a severed spine, resulting in permanent paralysis below the waist. At the time of trial, Simons was living in a nursing home with no expectation of walking again.
Simons testified at trial. Lee asked her for a ride over to the McAlpin house that night. On the drive over, Lee “just kept saying that she couldn’t believe that he would just take over her car like that.” Simons could hear Johnson and Lee arguing at McAlpin’s front door. She heard Lee say “she was here to get her car,” that “she wanted the keys to her car, and that’s the whole purpose of her going over there.” While Johnson and Lee were arguing, Simons “was on my cell phone. I was going to dial 911.” But she didn’t have time to make the call because Johnson came down the driveway and punched her. The next thing Simons remembered was waking up in the hospital.
About 30 minutes after the incident, Johnson telephoned McAlpin’s house and spoke to Lee. He told her that if she pressed charges there were “[g]oing to be problems at [her] house.” Referring to Simons, Johnson said, “That bitch ain’t dead. She deserved it.”
At 5:00 a.m. that morning, the police found Johnson asleep in Lee’s car, about a block away from his North Hollywood studio. Johnson told the arresting officer “it was his daughter’s car and that he had gotten into a fight with his daughter and he had taken her car and then he was just sleeping in it to get over the fight.”
Johnson referred to Lee as his goddaughter.
2. Defense evidence.
Johnson testified in his own defense. When Lee asked him to move out on December 15, he agreed to do so without any argument. He loaded his belongings into Lee’s car. Then he drove the car to McAlpin’s house to tell Ward he “was setting up shop in North Hollywood for us.” This was at about 9:30 or 10:00 p.m. Johnson testified he did not ask Lee’s permission to drive her car to McAlpin’s house because he didn’t have to; he had his own set of keys to Lee’s car and he used it whenever he wanted.
On cross-examination, Johnson was asked why, if Lee had two sets of keys, she hadn’t just gotten into her car at McAlpin’s house and driven away without bothering to knock on the door. Johnson answered, “Yes, she could have.”
McAlpin told Johnson someone had called about the car, but he did not expect Lee to show up at McAlpin’s house. Later, he heard someone banging on the front door. When he saw it was Lee he got mad because she should not have come over uninvited. He wasn’t angry at Lee, but rather at Simons for driving her there. Johnson testified he went toward Simons, who tried to run away, slipped and hit her head. He nudged her with his foot and determined she was either unconscious or pretending to be. He dragged her down to the bottom of the driveway. He intended to wake her up with some water from the neighbor’s sprinklers, but he got distracted when he noticed Lee was inside the car. So he left Simons where she was and ran back up the driveway. He grabbed Lee “because she was getting ready to start the car.” They both lost their balance and fell to the ground. Then he saw that Ward and McAlpin had come outside. Johnson told them, “Please get back in the house. I’m gonna take care of this. I will take care of this. I’m sorry this is happening at your house.” By “take care of this,” Johnson meant, “I was going [to] get rid of these ladies from my baby mother’s house.”
Lee got back into the car and started the engine. Johnson pulled her out of the car again, while also fending off McAlpin, who was pulling on him. “Before I pulled Tiffany [Lee] out Deidra [McAlpin] was pulling on me and I took Deidra and pulled her off of me and let her know, I said, ‘Look, I need to take care of this.’ ” “The next thing that I did after fully getting Tiffany out of the car, I’m dealing with Deidra. That’s the whole point. I’m dealing with Deidra because she’s screaming and I’m trying to tell her, ‘Please put my baby inside the house. I’m going to deal with this. Mom, I’m going to deal with this.”
Then Johnson started backing the car down the driveway. He was not looking in the rear view mirror and he had forgotten Simons was lying there. “The truth is that Crystal [Simons] wasn’t even on my mind. I was . . . dealing with Deidra and Tiffany and I forgot that she was even back there.” He did not accelerate the car; he just rode the brake because the driveway had a big downward slope. When the back wheels went over Simons, Johnson panicked.
Johnson testified: “When the back wheels went over . . . Crystal, I don’t even know how to describe the panic. [¶] Q Did you feel it? [¶] A Yeah. [¶] . . . [¶] It’s like when you accidentally hit a dog on the street. It’s a loud noise. It’s not a good feeling.”
“Q All right. And when you felt a bump what did you do?
“A Like anybody else would, say, ‘Oh shit.’
“Q And what then? What did you do next?
“A Had to go.
“Q You had to leave?
“A I had to.
“Q Were you afraid?
“A I had to go. Due to the things that I had in the car, I had to go.”
Johnson steered the car away from Simons and drove to his studio in North Hollywood. Running over Simons had been an accident; he never meant to hurt her.
Johnson denied threatening Lee when he called the McAlpin house after driving away: “I don’t have to threaten [Lee]. She gonna do what I tell her to do anyway.” He spoke to Lee at that point, even though he was angry at her, because he had to deal with her: “She’s my goddaughter, plus I have her car. She’s upset.”
On cross-examination, Johnson explained why he was so disturbed about the late-night visit from Lee and Simons: “Miss Deidra McAlpin is a very holy type lady and very Christian lady and lives her life in a quiet way.” When McAlpin got upset at Johnson’s fighting with Lee and Simons, he told her he would get rid of the visitors “because this is not what normally goes on at [McAlpin’s] house.”
Asked why he got mad at Simons when it was Lee who had come to retrieve the car, Johnson testified: “Crystal [Simons] was prohibited to be even near my baby mother’s house. There was a problem with Crystal being near around Amber [Ward] and my child.”
There was also this exchange:
“Q And you said that at this point Crystal wasn’t on your mind; is that right?
“A You know, I got three ladies. . . . I am dealing with a newborn baby, a mother-in-law, my girl, and at the present time they see me dealing with Tiffany’s bad self. At that point I really – I think you would actually say my hands was pretty much full. There is a lot of things going on at that present time.
“Q All right, Mr. Johnson. [¶] But then at some point you backed the car up in the driveway; is that right?
“A That’s – yes. [¶] I caught control of the car.
“Q And you backed the car up?
“A I never really backed the car up until it was time to go.
“Q Until it was time to go?
“A It was time to go, because at this point this thing has really got ugly. Tiffany is going crazy, my mom [i.e., McAlpin] is like – ”
PROCEDURAL BACKGROUND
Johnson was convicted of attempted murder, mayhem and carjacking. Our previous decision in this matter, People v. Johnson (Aug. 1, 2006, B183266) [nonpub. opn.], (Johnson I). In that opinion, we determined the trial court had not erred by failing to instruct on a claim-of-right defense to the carjacking charge, or by imposing more than one prior serious felony conviction enhancement under section 667, subdivision (a). On a third issue, however, a claim that the trial court had improperly imposed consecutive Three Strikes sentences, we remanded for resentencing.
Regarding the Three Strikes issue, we noted the trial court had cited People v. Deloza (1998) 18 Cal.4th 585, and People v. Durant (1999) 68 Cal.App.4th 1393. These cases discuss “the mandatory consecutive-sentencing provision of the three strikes law . . .: If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to [section 677,] subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms . . ., consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
However, we concluded the record of the sentencing hearing was ambiguous as to whether the trial court had, in fact, made these sentencing findings. We said, “In this case, Johnson was sentenced as a second strike offender under the Three Strikes law. Although the trial court referred to the Deloza and Durant cases, and apparently recognized it had to make sentencing findings, it is unclear from the record precisely what findings the trial court made.” (Johnson I, at p. 18.) We could not, in the end, determine if the trial court realized it had to make factual findings on the same occasion/same set of operative facts questions in order to know whether consecutive Three Strikes sentences were mandatory or discretionary.
The last two paragraphs of our discussion of this issue read:
“We note it could be inferred from the record that the trial court made a discretionary sentencing decision with regard to count 1 and count 2, because ‘[e]ven though under the three strikes law, section 654 is irrelevant to mandatory consecutive sentencing,’ if consecutive sentencing is not mandatory because ‘the “same occasion/same operative facts” test is satisfied,’ then ‘[s]ection 654 applies of its own force.’ (People v. Danowski (1999) 74 Cal.App.4th 815, 823.) The trial court here concluded section 654 required it to stay execution of the count 2 sentence, which implies the trial court did make a discretionary finding it would impose consecutive Three Strikes terms on count 1 and count 2. But if so, conspicuous by its absence is any on-the-record finding[ ] of fact regarding the imposition of consecutive Three Strikes terms on count 1 and count 3. The record simply reveals no analysis at all on that subject. [¶] Because it is unclear if the trial court realized it had to make factual findings before imposing consecutive terms, we will vacate the sentence and remand to the trial court for resentencing.” (Johnson I, at pp. 21-22, fn. omitted.)
At the resentencing hearing, the trial court solicited argument on the question whether consecutive Three Strikes terms on Johnson’s carjacking, attempted murder and aggravated mayhem convictions were mandatory or a matter for judicial discretion. The trial court then ruled it had discretion to impose either consecutive or concurrent terms, and that it would impose consecutive terms on all three counts.
CONTENTIONS
1. The trial court erred by lifting the section 654 stay it had previously imposed on count 2.
2. The trial court erred by imposing consecutive terms without a jury trial.
DISCUSSION
1. Section 654 applies to count 2.
Johnson contends the trial court erred when, on remand, it lifted the stay it had previously imposed on count 2 under the mistaken impression this court had ordered it to do so. The Attorney General properly concedes Johnson is correct.
On remand, the trial court determined it had discretion to impose either consecutive or concurrent terms because all three crimes were committed on the same occasion and arose out of the same operative facts. The trial court then considered the effect of section 654, appropriately concluding that statute did not bar a consecutive term on count 3, the carjacking conviction, because that count involved a separate victim, Lee, and a separate objective, property theft, as opposed to the personal injury aimed at Simons. But as to the two crimes committed against Simons, attempted murder (count 1) and aggravated mayhem (count 2), it appears the trial court mistakenly believed that in Johnson I we had ruled section 654 could not be applied to stay one of those prison terms.
Section 654, subdivision (a), provides, in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “ ‘The question of whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ ” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
The trial court began the resentencing hearing by saying: “It’s only the sentencing issues – one of the two sentencing issues that is currently before the court. The one that is not is the defendant’s claim – rather, my feeling that [section] 654 applied and prevented a consecutive sentence to count 2 . . . on that point I was wrong. The Court [of Appeal] clearly found that 654 does not apply.” At the end of the resentencing hearing, the trial court said: “I therefore find that the sentence as to all three counts should run consecutive. I reimpose the determinate sentence on count 3, 215, the carjacking count as the base term. I choose at this point to run . . . count 1 consecutive to count 3 as I did earlier. And instead of staying count 2, under the mistaken belief that 654 mandated that stay, I choose at this point, having found factually that each of the three counts should run consecutively . . . that count 2 as well should run consecutively.”
But, as the Attorney General argues, “[I]t is unclear how the trial court concluded on remand, based on this Court’s discussion of the sentencing issue in its Opinion, that this Court ‘clearly found that 654 does not apply.’. . . Nowhere in the Opinion does this Court mention that section 654 did not apply to counts 1 and 2, yet this appears to be the basis for the trial court’s confusion which led it to lift the section 654 stay and resentence consecutively on all three counts, as opposed to simply stating reasons for imposing consecutive sentences on counts 1 and 3, which was the purpose of this Court’s remand.” We agree with Johnson’s characterization of the current posture of this case: “[I]f anything, this Court’s references to section 654 impliedly affirmed, not reversed, the trial court’s section 654 stay and restated the rule that section 654 works independently of the Three Strikes Law, at least, as here, where consecutive sentencing is not mandatory.” “The trial court was merely directed, by this Court, to make factual findings as to whether, under section 667, subdivision (c)(6) and (7), concurrent sentences were within the court’s discretion as to counts one and three. This required factual findings as to whether the crimes in counts one and three were committed on the same occasion or arose out of the same operative facts. The trial court correctly recognized that mandate . . . and . . . found that all the crimes were continuous and so close in time and operative facts that consecutive sentences were not mandated. However, it erred when it interpreted this Court’s opinion as reversing on the imposition of the section 654 stay.” As previously noted, the Attorney General properly acknowledges the correctness of this analysis.
We will, therefore, modify the judgment by reimposing the section 654 stay on count 2.
2. There was no Cunningham error.
Johnson contends his resentencing violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], because the factors justifying imposition of consecutive terms were not found by the jury. This claim is meritless.
People v. Black (2007) 41 Cal.4th 799, 823, held: “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.”
Johnson acknowledges the ruling in Black is binding upon this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
This issue is currently before the United States Supreme Court, which granted certiorari in Oregon v. Ice (2008) 128 S.Ct. 1657 [170 L.Ed.2d 353] (cert. granted Mar. 17, 2008), to decide if the Sixth Amendment requires that facts, other than the fact of a prior conviction, necessary to impose consecutive sentences be found by the jury or admitted by the defendant.
Thus, there was no Cunningham error.
DISPOSITION
The judgment is modified in that the sentence imposed under count 2 is hereby stayed under section 654. As modified, the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment to reflect this modification, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: KITCHING, J., ALDRICH, J.