P. v. Johnson

Filed 1/27/06 P. v. Johnson CA1/5





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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





FIRST APPELLATE DISTRICT





DIVISION FIVE






THE PEOPLE,

Plaintiff and Respondent,

v.

KELON DARYL JOHNSON,

Defendant and Appellant.


A107062


(Lake County

Super. Ct. No. CR035568)



Kelon Daryl Johnson appeals his conviction by jury verdict of criminal threats. (Pen. Code, § 422.)[1] In a bifurcated proceeding he admitted a prior serious felony conviction. He asserts insufficient evidence to support the criminal threats conviction and instructional and sentencing error.



BACKGROUND


At approximately 8:45 p.m. on November 3, 2003, a quarrel arose between appellant and his wife, April, then seven weeks pregnant with their second child, over her wish to use an electric heater.[2] During the argument, appellant threatened to kill her. April telephoned her mother-in-law, told her appellant was threatening to kill her, and asked her mother-in-law to come get her or tell appellant to let her leave the house. She also told her mother-in-law that that she was telephoning her because she did not want to call the police. Her mother-in-law replied, â€