P. v. Johnson CA4/2
A jury found defendant and appellant Kevin Bryan Johnson guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 & 2) and one count of misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). Defendant was sentenced to a total term of five years in state prison as follows: the upper term of four years on count 1, plus a consecutive term of one year (one-third the middle term) on count 2; and a concurrent term on count 3. On appeal, defendant contends (1) the trial court erred when it denied his request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta); (2) the trial court erred by not sua sponte instructing the jury on simple assault as a lesser included offense of assault with a firearm; and (3) the matter must be remanded for a new sentencing hearing under newly enacted sentencing laws. The People agree the matter should be remanded for a new sentencing hearing, but disagree with defendant’s remaining contentions.
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