P. v. Johnson

Filed 8/1/06 P. v. Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas K. Herman, Judge. Affirmed in part, reversed in part and remanded.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant, Derek Johnson, appeals from the judgment entered following his conviction, by jury trial, 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)).^[1] Sentenced to state prison for 38 years to life, Johnson claims there was trial and sentencing error.

The judgment is affirmed in part, reversed in part, and remanded for resentencing.

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 her friend Derek 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 North Hollywood. 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 couple of 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 a report because her car did not have plates yet 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 the car. Lee testified that when Johnson answered the door, she â€