Opinion
C097514
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE JOHNNIE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE017883
EARL, P. J.Appointed counsel for defendant Jermaine Johnnie Johnson filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We ordered supplemental briefing regarding a potential sentencing error. Because defendant's sentence for discharging a firearm from a motor vehicle is ambiguous, we will vacate the sentence and remand for a full resentencing hearing. We further direct the trial court to correct the abstract of judgment to include the gang enhancement associated with that conviction.
FACTUAL BACKGROUND
On October 3, 2020, Frederick L. was standing outside his home when an African-American male wearing a black ski mask and sunglasses drove up to him in a blue Chevy Camaro. The driver asked Frederick where he was from. Before Frederick could answer, the driver pulled out a gun with a long clip and fired three to five bullets. Frederick dropped to the ground, avoiding the shots.
To protect his privacy, we refer to the victim by his first name and last initial and subsequently by his first name. (Cal. Rules of Court, rule 8.90(b)(4).)
Defendant was charged with premeditated attempted murder (Pen. Code, §§ 187, 664), assault with a semiautomatic firearm (§ 245, subd. (b)), discharging a semiautomatic firearm from a motor vehicle (§ 26100, subd. (c)), and unlawful possession of a firearm (§ 29800, subd. (a)(1)). As to all charged offenses, the amended information alleged that defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to the attempted murder charge, the amended information alleged defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). As to the assault charge, it was alleged that defendant personally used a firearm (§ 12022.5, subd. (a)). The amended information further alleged six aggravating circumstances and that defendant committed the offenses while out on bail on another felony offense (§ 12022.1). The trial court bifurcated the trial for the gang allegations, the out-on-bail allegation, and the aggravating circumstances. The court denied defendant's Marsden motion. (See People v. Marsden (1970) 2 Cal.3d 118.)
Undesignated statutory references are to the Penal Code.
At trial, the prosecution introduced evidence that: (1) the blue Camaro used by the shooter was owned by defendant's then-girlfriend; (2) the police had stopped defendant on several different occasions while he was driving the blue Camaro; and (3) defendant was a member of the Del Paso Heights Bloods gang. The prosecution also introduced text conversations from the day after the incident in which defendant said he "slid and did [his] Dougie," as well as expert testimony that these terms refer to a retaliatory shooting. The prosecution played for the jury an Instagram live video from five days before the shooting in which defendant was depicted with a gun and a ski mask. The parties stipulated that defendant was previously convicted of a felony and prohibited from possessing firearms.
Defendant testified in his defense. He claimed he was not present when Frederick was shot at. He admitted to being a gang member, but described gang members as individuals who live in and represent a certain neighborhood, not those who commit acts or crimes for the gang. As to the Instagram video, defendant testified that he had the gun because he was trying to look like a rapper and the ski mask was a trendy way to wear a mask during the COVID-19 pandemic.
The jury found defendant not guilty of attempted murder and guilty of assault with a semiautomatic firearm, discharging a semiautomatic firearm from a motor vehicle, and unlawfully possessing a firearm. As to the assault, the jury found true that defendant personally used a firearm. Defendant waived his right to a jury for the second phase of the trial. Following a bench trial, the court found true the six alleged aggravating circumstances and that defendant committed the offenses for the benefit of a street gang. The court did not make a finding as to the out-on-bail allegation.
Before sentencing, defendant agreed to a stipulated global resolution of this case as well as three other cases. Pursuant to that stipulation, the trial court imposed a sentence of nine years for the assault, 10 years for the associated firearm enhancement, and three years for the associated gang enhancement. As to the conviction for discharging a firearm from a motor vehicle, the prosecution informed the court that this sentence "would be stayed under [section] 654" but did not specify on the record what term defendant stipulated to. For that conviction, the court imposed the "upper-term of three years" plus five years for the associated gang enhancement but stayed the sentence under section 654. The court explained that "[t]he upper-term is selected . . . based on the aggravating factors and the stipulation" and that the total sentence for this conviction and gang enhancement was "12 years." Lastly, as to the conviction for unlawful possession of a firearm, the court imposed a sentence of three years, plus three years for the associated gang enhancement but ordered those terms to be served concurrently. Therefore, defendant's aggregate sentence for the present matter was 22 years, comprised of the prison terms for the assault and the associated firearm and gang enhancements.
Defendant timely appealed. During the pendency of this appeal, the trial court issued a revised abstract of judgment to fix several errors, including the miscalculation of custody credits. The revised abstract of judgment lists defendant's sentence for discharging a firearm from a vehicle as seven years.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
After examining the entire record pursuant to Wende, we requested briefing from the parties on whether the trial court erred when sentencing defendant to "the upper term of three years" for discharging a firearm from a motor vehicle. Defendant argues the sentence for this conviction is unclear because the "upper term" for this offense is seven years-not three years, which is the lower term. (See § 26100, subd. (c).) The People insist that "the record shows that the trial court unambiguously intended to impose the upper term." In support, the People point to: (1) the court's explanation as to why the upper term was selected; (2) the fact that the court's sum of 12 years for the conviction and its associated five-year enhancement only makes sense if the court imposed the upper term; and (3) the abstract of judgment, which lists defendant's sentence as seven years.
While there are indications that the trial court intended to impose a seven-year term, we disagree that the record is unambiguous. Ordinarily, it is the oral pronouncement of sentence that governs (People v. Mitchell (2001) 26 Cal.4th 181, 185), and here the trial court orally pronounced a sentence of "three years" for the section 26100, subdivision (c) conviction. Further, as the People acknowledge, the record does not specify what term defendant stipulated to as part of his plea agreement. Given the inconsistencies in the record, the most prudent course is to remand so the trial court can clarify which term it intended to impose for this conviction.
Separately, the revised abstract of judgment requires further correction as it omits the gang enhancement associated with defendant's section 26100, subdivision (c) conviction.
DISPOSITION
Defendant's sentence is vacated and the matter is remanded for a full resentencing hearing. (People v. Shaw (2020) 56 Cal.App.5th 582, 588-589 ["when an error affects part of a sentence, the case must be remanded for a full resentencing hearing as to all counts to permit a trial court to exercise its sentencing discretion in light of the changed circumstances"].) The trial court shall prepare an amended abstract of judgment following the resentencing hearing that includes: (1) the gang enhancement associated with defendant's section 26100, subdivision (c) conviction; and (2) a recalculation of actual credits pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, 23. The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur RENNER, J., ASHWORTH, J. [*]
[*] Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.