P. v. Johnson

Filed 4/2/07 P. v. Johnson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
HERBERT JOHNSON,
Defendant and Appellant.
B193730
(Los Angeles County
Super. Ct. No. NA065694)
APPEAL from a judgment of the Superior Court for the County of Los Angeles,
John D. Lord, Judge. Affirmed in part, reversed in part and remanded.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________

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A jury convicted Herbert Johnson of eight counts of rape and one count of sexual
penetration by a foreign object and found true the special allegation he had committed the
offenses during the course of a burglary. The trial court sentenced Johnson to an
aggregate state prison term of 89 years to life. On appeal Johnson contends the evidence
is insufficient to support his convictions on three of the rape counts. Johnson also
contends the trial court’s imposition of a sentence based in part on its own factual
findings concerning aggravating circumstances violated his right to a jury trial guaranteed
by the Sixth and Fourteenth Amendments to the United States Constitution. In light of
the United States Supreme Court’s recent decision in Cunningham v. California (2007)
549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which invalidated
portions of California’s determinate sentencing law (DSL), we remand for resentencing.
In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged Johnson with 10 counts of rape by force or fear
(Pen. Code, § 261, subd. (a)(2)) 1
and one count of sexual penetration by a foreign object
(§ 289, subd. (a)(1)). It also alleged as to each count that Johnson had committed the
offense during the course of a burglary (§ 667.61, subd. (d)(4) (the “One Strike” law)).
Two of the rape counts (counts 9 and 10) were dismissed at the close of the trial for
insufficient evidence.
According to the evidence at trial, as 19-year-old Lillian E. prepared to go to sleep
for the night, she was awakened by a male intruder who put his hand over her face, told
her not to say anything, inserted his fingers in her vagina, ordered her to comply with his
commands or he would kill her sister and repeatedly raped her in various positions over
the course of an hour. Although Lillian E. was unable to identify her attacker and the
case went unsolved for years, DNA evidence obtained in connection with another case
later confirmed Johnson was the rapist.
1
Statutory references are to the Penal Code.

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Following his conviction by a jury on all eight counts of rape and one count of
sexual penetration with a foreign object and the jury’s finding the offenses were
committed during the course of a burglary, the trial court sentenced Johnson to a term of
25 years to life with respect to the first count of rape under the One Strike law and to full,
separate and consecutive eight-year terms (the upper term) with respect to each of the
remaining eight counts. (§ 667.6, subd. (c) [authorizing imposition of full, separate and
consecutive terms for each violation of offense specified in subd. (e), including rape and
unlawful sexual penetration by foreign object]; see §§ 264, subd. (a) [rape, as defined in
section 261, punishable by imprisonment in state prison for three, six or eight years], 289
[offense of unlawful sexual penetration by foreign object punishable by imprisonment in
state prison for three, six or eight years].) In accordance with the One Strike law and the
DSL (see § 1170.3; Cal. Rules of Court, rule 4.401, et seq.) the court elected to impose
the upper term of eight years for counts 2 through 8 and count 11 because it found by a
preponderance of the evidence the crimes involved great violence and great bodily harm,
as well as a high degree of cruelty and viciousness; there was a threat of great bodily
harm to the victim’s sister; and the 19-year old victim was particularly vulnerable and
had been a virgin prior to being brutalized by Johnson. (See Cal. Rules of Court, rule
4.421 [enumerating aggravating factors allowing for imposition of upper term].)
DISCUSSION
1. Standard of review
In reviewing a challenge to the sufficiency of the evidence, we “consider the
evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the judgment. The
test is whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th
408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d
577, 631.) Our sole function is to determine if any rational trier of fact could have found
the essential elements of the crime or the special allegation present beyond a reasonable
doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th

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1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the jury’s finding].’” (Bolin, at p. 331, quoting People v. Redmond
(1969) 71 Cal.2d 745, 755.)
“Substantial evidence” in this context means “evidence which is reasonable,
credible, and of solid value -- such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578;
accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“When the sufficiency of the
evidence is challenged on appeal, the court must review the whole record in the light
most favorable to the judgment to determine whether it contains substantial evidence --
i.e., evidence that is credible and of solid value -- from which a rational trier of fact could
have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]”].) “Although
the jury is required to acquit a criminal defendant if it finds the evidence susceptible of
two reasonable interpretations, one of which favors guilt and the other innocence, it is the
jury, not the appellate court, which must be convinced of his guilt beyond a reasonable
doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
2. Substantial Evidence Supports Johnson’s Conviction for Each of the Eight
Counts of Rape Under Section 261
Rape is defined in section 261, subdivision (a)(2), as “an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator” “against a person’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another.” “The essential guilt of rape consists in the outrage to
the person and feelings of the victim of the rape. [Thus,] [a]ny sexual penetration,
however slight, is sufficient to complete the crime.” (§ 263.) Although penetration is a
necessary element of rape, vaginal penetration is not required. Penetration, however
slight, “‘of the victim’s external genital organs is sufficient to constitute sexual
penetration and to complete the crime of rape even if the rapist does not succeed in
penetrating into the vagina.’” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366,
quoting People v. Karsai (1982) 131 Cal.App.3d 224, 231-232 [penetration of external

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genital organs such as labia majora and labia minora sufficient] disapproved on other
grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
Citing Lillian E.’s testimony that he inserted his penis into her vagina five times
while she was on her back, Johnson contends the evidence is sufficient to support only
five of the eight counts of conviction for rape. However, Johnson ignores Lillian E.’s
additional testimony that he penetrated her external genitalia, “poking her” in the vagina
“four to five” times with his penis while she was on her hands and knees but was
unsuccessful in penetrating her vagina in that position and later forced Lillian E. to
assume a different position. At another point in her direct examination, when asked to
summarize the number of times Johnson succeeded in penetrating her vagina with his
penis during her ordeal, Lillian E. testified “five times”; when asked the number of times
Johnson attempted to penetrate her vagina but was unsuccessful in that effort, she
testified “three times.” A reasonable trier of fact could infer from Lillian’s testimony
that, in “poking her vagina” with his penis in an effort to effect vaginal penetration,
Johnson succeeded in penetrating her external genitalia (albeit not her vagina) at least
three times, if not “four or five.” Accordingly, substantial evidence amply supports the
jury’s verdict on all eight counts of rape.
2. The Imposition of the Upper Term for Seven of the Counts Based on Findings
Not Made by a Jury Violates Johnson’s Sixth Amendment Jury-trial Right as
Articulated by the United States Supreme Court in Cunningham
In Cunningham, supra, 127 S.Ct. 856, decided after Johnson had filed his opening
appellate brief and the People had filed their respondent’s brief in this case, the United
States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct.
2348, 147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531,
159 L.Ed.2d 403] (Blakely) and United States v. Booker (2005) 543 U.S. 220 [125 S.Ct.
738, 160 L.Ed.2d 621] (Booker), overruled People v. Black (2005) 35 Cal.4th 1238,
2
and
2
On February 20, 2007 the United States Supreme Court vacated the judgment in
People v. Black, supra, 35 Cal.4th 1238, and remanded the case to the California
Supreme Court for further consideration in light of Cunningham, supra, 549 U.S. ___
[127 S.Ct. 856].)

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held California’s DSL violates a defendant’s right to a jury trial guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution to the extent it authorizes
the trial judge to find facts (other than a prior conviction) that expose a defendant to an
upper term sentence by a preponderance of the evidence. “This Court has repeatedly held
that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential
sentence must be found by a jury, not a judge, and established beyond a reasonable doubt,
not merely by a preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at
pp. 863-864.)
“Under California’s DSL, an upper term sentence may be imposed only when the
trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend
on facts found discretely and solely by the judge. In accord with Blakely, therefore, the
middle term prescribed in California’s statutes, not the upper term, is the relevant
statutory maximum. [Blakely, supra,] 542 U.S., at 303 (‘The “statutory maximum” for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.’ (emphasis in
original)). Because circumstances in aggravation are found by the judge, not the jury,
and need only be established by a preponderance of the evidence, not beyond a
reasonable doubt [citation], the DSL violates Apprendi’s bright-line rule: Except for a
prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’
[Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868.)
3
3
The People urge Johnson forfeited this argument by not objecting on constitutional
grounds in the trial court to the imposition of the upper term sentences. Whether the
People’s forfeiture argument may have some merit in other circumstances (cf. United
States v. Cotton (2002) 535 U.S. 625), here Johnson was sentenced on August 21, 2006,
more than a year after the California Supreme Court had expressly held in People v.
Black, supra, 35 Cal.4th at page 1244, “the judicial factfinding that occurs when a judge
exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
Following Black and before the United States Supreme Court’s January 22, 2007 decision
overruling it in Cunningham, any objection to the imposition of the upper term on Sixth

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Under Cunningham, supra, 127 S.Ct. 856 the trial court’s imposition of the upper
term on each of the eight determinate counts (counts 2 through 8 and count 11), based on
its own factual findings of aggravating circumstances in accordance with the DSL, none
of which involved a prior conviction or even more broadly the defendant’s recidivism,
violated Johnson’s constitutional right to a jury trial. 4
The only remaining question is
whether imposition of the upper term sentence in this case is harmless error.
(Washington v. Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546, 165 L.Ed.2d 466]
[Apprendi/Blakely error not “structural error” requiring automatic reversal]; see People v.
Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error reviewable under the harmless
error standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17
L.Ed.2d 705] (Chapman).)
The People suggest any error is harmless because a jury convicting Johnson of
such heinous crimes would have likewise found additional facts in aggravation
warranting imposition of the upper term. Although we have little doubt a jury could
reasonably find this brutal crime involved a high degree of cruelty and the victim was
particularly vulnerable, the jury in this case was not asked to find, nor did it find,
expressly or even impliedly, those facts. Applying Chapman’s heightened beyond-a-
reasonable-doubt standard for assessing harmless error in cases involving violation of a
defendant’s federal constitutional rights, from this record we simply cannot conclude the
jury would have found, beyond a reasonable doubt, the existence of the aggravating
factors identified by the trial court. Moreover, we cannot determine from this record
whether the same sentence would have been imposed by the trial court if the jury had
found some but not all of the aggravating circumstances relied on by the trial court in
Amendment grounds would have been futile. (See People v. Hill (1998) 17 Cal.4th 800,
820.)
4
Johnson does not challenge any aspect of the sentence imposed other than the trial
court’s selection of the upper term of eight years rather than the middle term of six years
in imposing the eight full, separate and consecutive terms on counts 2 through 8 and
count 11.

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imposing the upper term for each determinate count. (See People v. Navarro (2004) 124
Cal.App.4th 1175, 1182-1183 [Blakely requires that jury, not sentencing judge, determine
underlying facts used to enhance sentence, but decision whether to use those facts to
enhance sentence remains the court’s].) In sum, the sentencing error is not harmless
under Chapman.
DISPOSITION
The judgment is reversed with respect to the imposition of the upper term
sentences on counts 2 through 8 and count 11, and the matter is remanded for
resentencing. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
JOHNSON, J.
WOODS, J.

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