P. v. Johnstone

Filed 3/29/06 P. v. Johnstone 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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,

Allen J. Webster, Jr., Judge. Affirmed in part, reversed in part, and remanded for further proceedings.

Valerie G. Wass, 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, Jaime L. Fuster and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant and appellant Henry David Johnstone appeals from the judgment entered following a jury trial that resulted in his convictions for inflicting corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))^[1] and attempted voluntary manslaughter (§§ 664, 192, subd. (a)). Johnstone was sentenced to a prison term of 50 years to life, plus 16 years.

Johnstone contends: (1) the attempted voluntary manslaughter instruction omitted an element of the crime, requiring reversal of that conviction; (2) he cannot be convicted of both attempted voluntary manslaughter and the lesser included offense of inflicting corporal injury on a spouse; (3) because certain prior conviction allegations were neither admitted nor proved, he cannot be sentenced under the Three Strikes law; (4) the section 667, subdivision (a)(1) â€