P. v. Johnson 4/2/07 CA2/7

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B193730

Case Date: 06/13/2007

Preview:Filed 4/2/07 P. v. Johnson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. HERBERT JOHNSON, Defendant and Appellant.

B193730 (Los Angeles County Super. Ct. No. NA065694)

APPEAL from a judgment of the Superior Court for the County of Los Angeles, John D. Lord, Judge. Affirmed in part, reversed in part and remanded. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. _____________________

A jury convicted Herbert Johnson of eight counts of rape and one count of sexual penetration by a foreign object and found true the special allegation he had committed the offenses during the course of a burglary. The trial court sentenced Johnson to an aggregate state prison term of 89 years to life. On appeal Johnson contends the evidence is insufficient to support his convictions on three of the rape counts. Johnson also contends the trial court's imposition of a sentence based in part on its own factual findings concerning aggravating circumstances violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. In light of the United States Supreme Court's recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which invalidated portions of California's determinate sentencing law (DSL), we remand for resentencing. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND An amended information charged Johnson with 10 counts of rape by force or fear (Pen. Code,

Download P. v. Johnson 4/2/07 CA2/7.pdf