P. v. Johnson

Filed 8/2/06 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Gus Skropos, Judge. Affirmed with directions.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-

Ladendorf, Supervising Deputy Attorney General, and Erika Hiramatsu, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

Jack Irwin was over 70 years old and disabled with some speech and neurological impairments. He lived alone in a small cabin on Mount Baldy. In February 1999, he sold the cabin to defendant and her domestic partner, Judy Gellert, before moving to Upland. After Irwin disappeared in September 1999, defendant and Gellert depleted Irwin's bank accounts, sold his car, and sold his Upland residence. They reported a burglary and a fire at the cabin and collected insurance proceeds.

A jury convicted defendant on a total of 26 counts for murdering Jack Irwin, committing arson and other related crimes with enhancements.^[2] The court sentenced defendant to a life term without the possibility of parole, with consecutive terms of 25 years to life and 23 years.

We reject defendant's challenge, based on the corpus delicti rule, to the sufficiency of the evidence for a gun use enhancement (§ 12022.53, subds. (b), (c), and (d).) We also hold the trial court properly applied section 654 when it did not stay some of the terms imposed on counts 2-5, 7, 9, 11-12, 14-16, 18-21, 23, and 25-33. We reject defendant's arguments about the imposition of the upper term on count 29 and consecutive sentencing.

The People concede there were errors in sentencing regarding the enhancements imposed under sections 186.11, subdivision (a)(3), and 12022.6, subdivision (a)(2). The People also agree the abstract of judgment and minute order should be corrected to correctly represent the sentence as delivered orally by the court. Finally, the People concur the $10,000 restitution fine (§ 1202.45) should be stricken because defendant has been sentenced to life in prison without possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)

We affirm the judgment with directions.

2. Facts

The material facts are summarized in a condensed style favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Defendant and Gellert lived together as partners after meeting in an alcohol recovery program.

In January 1999, defendant and Gellert befriended Irwin when they purchased his cabin and he bought a 2,000-square-foot house in Upland. Irwin carried a $48,000 loan for the sale of the cabin. Irwin moved to Upland on February 18, 1999.

Defendant and Gellert moved into the Upland house with Irwin in March or April 1999. In July, Irwin attended a gay pride parade with defendant and Gellert. Later he complained about his relationship with the two women and their dogs.

On August 17, 1999, Irwin, assisted by a lawyer, changed his will and trust to name defendant and Gellert as beneficiaries. Irwin also made defendant and Gellert the beneficiaries on his retirement account.

In late August, a neighbor on Mount Baldy, Kerri Walter, heard Irwin yelling and screaming at defendant, who apologized to Irwin and directed him to strike her. Later, defendant explained to Walter there had been a misunderstanding.

On September 4, 1999, Irwin added Gellert and defendant to his bank account at Pomona First Federal. After that Irwin became absent from the area. Steven Johnson, Irwin's Upland neighbor, stopped seeing Irwin. Defendant said Irwin was traveling. Defendant and Gellert told other people Irwin had taken a train to Seattle to see the Space Needle but had not contacted them since. Irwin did not attend a medical appointment in Loma Linda on September 21, 1999.

Also in September, defendant and Gellert announced they were leaving Upland because it was not working out with Irwin. Defendant said she was moving back to Mount Baldy because of her allergies.

On the afternoon of September 13, 1999, defendant withdrew $4,000 from Irwin's bank account, which was then showing $73,449.60. Later that day she bought new tires. On September 15, defendant wrote checks of $7,000 and $10,000 on Irwin's account, payable to herself, and another check for $6,693.33 payable to Sierra Motors. On September 17, defendant purchased a 1992 Jeep from Sierra Motors using a check on Irwin's account for $6,651.22.

Defendant filed a â€