P. v. Johnson

Filed 2/21/07  P. v. Johnson CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yolo)

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     A jury convicted defendant McKinley Johnson of willful failure to appear on a felony charge while on bail, and also found to be true an on-bail enhancement.  He was sentenced to a term in state prison. 

     On appeal, defendant contends that the prosecutor committed prejudicial misconduct, and the trial court erred in instructing the jury.  We disagree and shall affirm the judgment.

FACTS

     In case No. 036675, defendant was charged with felony crimes, including domestic violence, and was represented by Joshua Kaizuka of the public defender's office.  Defendant was present on March 8, 2004, when the court scheduled a trial readiness conference for April 19, 2004, and scheduled the trial for May 11, 2004.  Attorney Kaizuka's general practice was to give to his client a copy of the minute order with the dates calendared by the court. 

     On April 19, 2004, defendant was present when the court vacated the trial date of May 11, 2004, but set the trial setting conference for that date.  Defendant was out of custody on bail at  the time. 

     On April 23, 2004, defendant's apartment in West Sacramento burned down.^[1]  He did not stay to talk to the police.  The next day, his brother drove him to Fortuna. 

     Defendant failed to appear at the trial setting conference on May 11, 2004.  Defense counsel said defendant no longer lived in Yolo County and had planned to take a bus from Humboldt County, which would take 12 hours.  The court continued the matter to May  12, 2004. 

     Defendant failed to appear on May 12, 2004, and a bench warrant was issued for his arrest. 

     On June 22, 2004, Fortuna Police Officer Jeremy Collings heard  from defendant's roommate, who wanted assistance in removing defendant from the residence.  The roommate claimed that defendant had an outstanding warrant.  Collings arrested defendant on June 22 after confirming that he had three outstanding felony warrants out of Yolo County. 

     At trial, defendant testified that he moved to Fortuna in  November 2003 to work for his roommate, who had an electrical contracting business.  According to defendant, his car did not work and his roommate's vehicle was unreliable.  Defendant claimed that he did not know anyone else in Fortuna. 

     Defendant admitted that when he was in court on April 19, 2004, he was told he had to appear on May 11.  He  planned to return to Yolo County by bus, a 12-hour trip.  However, he spent most of his May 7 paycheck for child support.  Thus, he tried without success to  borrow money and to sell his music equipment.  He also tried to reach his brother by  phone but it had been disconnected.  Defendant claimed that he did not have enough money for the bus fare on May 11 and thus called the public defender's office, either telling a  secretary of his plight or leaving a message for his  attorney. 

     According to defendant, he expected a bench warrant to be issued on May 11 when he failed to appear.  He assumed that Fortuna law enforcement would arrest him and transport him to Yolo County.  He had his roommate drive him to the Fortuna Police Department but it had closed at 5:00 p.m.  He  then had his roommate go to the department on June 22, 2004, and  tell officers about defendant's outstanding warrant.  Consequently, Fortuna police arrested defendant, and he  was later transported to Yolo County. 

     Defendant denied that he was trying to avoid the court process on May 11.  Indeed, he had wanted to appear because he knew that the domestic violence case had witness problems. 

DISCUSSION

I

     Defendant claims that the prosecutor committed misconduct in cross-examining defendant as follows regarding his decision to go to Fortuna on April 24, 2004, knowing that he had a court appearance on May 11, 2004:

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