P. v. Johnson

Filed 1/16/07 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN DAMON JOHNSON,
Defendant and Appellant.
F049488
(Super. Ct. No. BF110630A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and William K.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
PROCEDURAL HISTORY
Appellant Kevin Damon Johnson was charged with kidnapping to commit robbery
(count 1, Pen. Code,1 § 209, subd. (b)(1)); kidnapping to facilitate carjacking (count 2,
§ 209.5, subd. (a)); second degree robbery (count 3, § 212.5, subd. (c)); and carjacking
(count 4, § 215, subd. (a)). The information also alleged as to all four counts that
Johnson personally used a deadly or dangerous weapon in the commission of the
offenses. (§ 12022, subd. (b)(1).) The matter went to trial. Before the presentation of
evidence, the trial court struck the personal use allegation. Thereafter, the jury returned
with its verdict. On count 1, the jury acquitted Johnson of kidnapping to commit
robbery, but returned a guilty verdict on the lesser-included offense of misdemeanor false
imprisonment. (§ 236.) The jury also acquitted Johnson of count 2. The jury found
Johnson guilty of counts 3 and 4 as charged.
Johnson was sentenced to a total term of 10 years in state prison as follows: the
upper term of nine years on count 4 and a consecutive term of one year, one-third the
mid-term, on count 3. The court also imposed a concurrent term of one year in county
jail on count 1.
FACTUAL SUMMARY
On March 21, 2005, Jose Pantoja stopped to offer assistance to a woman, Ashley
Irons, who was walking along a Bakersfield street with a baby. The area is known for
prostitution and drug deals. While Pantoja was talking with Irons, Johnson approached
Pantoja’s van, wearing a ski mask. He pointed a gun at Pantoja’s head and jumped into
the van. Irons and the baby got into the van as well. Johnson drove to a motel and forced
Pantoja at gunpoint into room 16. He told Pantoja to lie face down on the bed or he
would be killed. Johnson ordered Pantoja to give him his money. When Pantoja said “I
don’t have any,” Johnson took Pantoja’s wallet, which contained approximately $20,
1All further statutory references are to the Penal Code unless otherwise stated.

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3.
identification, and some credit cards. Johnson asked if any of the cards could be used to
withdraw cash. He ordered Pantoja to give Johnson a pin number. When Pantoja
complied, Johnson handed Irons the keys to Pantoja’s van and ordered Irons to go
withdraw money using Pantoja’s card. Irons drove Pantoja’s van to an ATM and
withdrew $400. When she returned, Johnson allowed Pantoja to leave, but kept Pantoja’s
identification, threatening Pantoja with, “I know where you live.” Pantoja found a police
officer and reported the offense. Johnson, Irons, and the baby were located at a pay
phone not far from the motel. Johnson had $383, nineteen $20 bills and three $1 bills, in
his jacket pocket. Irons had Pantoja’s identification card in her pocket. Officers found
the ski mask and a pellet gun under the bed in room 16.
Johnson testified that Irons was his ex-girlfriend and a prostitute. He said Pantoja
was a friend of his, like a “John” for a prostitute. Later he denied being a pimp. He said
he was staying in room 14 and that room 16 was the room they rented for prostitution.
He claimed Pantoja was a regular customer of Irons’ and that Johnson had received $60
from Pantoja on March 21 in exchange for scoring some drugs for Pantoja. He said Irons
asked him to carry her money when they walked to the store together because she had no
pockets. He denied the carjacking and the robbery, stating there was another man staying
with Irons. Johnson said the pellet gun that was found was a toy belonging to his five-
year-old son.
DISCUSSION
I. Imposition of upper term
Johnson contends that the trial court abused its sentencing discretion when
imposing the upper term for count 4 because 1) the court was not authorized to consider
Johnson’s use of the pellet gun because the deadly weapon enhancement had been
dismissed, fear or force is an element of carjacking, and the testimony that the pellet gun
was held to the victim’s head was related to the kidnapping charge of which the jury
acquitted Johnson; 2) the court was not permitted to consider the presence of the young

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4.
child in the room because the magistrate had dismissed a child-endangerment charge on
the grounds of insufficient proof; and 3) the “remaining factors in aggravation overlap
and constitute but a single aggravating factor.” We reject these arguments and find no
abuse of discretion.
The trial court made the following statement about why it chose the upper term:
“Circumstances in [aggravation], the crime did involve great violence in
that the defendant held what the victim perceived was a gun to his head
during the entire incident; the defendant was armed with what the victim
perceived to be a handgun; the defendant’s prior convictions as an adult
and sustained petitions in juvenile court are numerous and significant in
that he has three prior convictions, adjudications for misdemeanor 10851,
also, of course, a crime of battery and theft; the defendant was on four
grants of misdemeanor probation when this crime occurred.
“His prior performance on juvenile and misdemeanor probation has been
unsatisfactory in that he has failed to appear for court hearings, he’s failed
to appear for jail commitments, he’s failed to pay fines, he’s violated the
terms and conditions of his probation by continuing to re-offend. Also this
crime was committed in the presence of an 11-year-old -- excuse me -- 11-
month-old baby, the daughter of the co-defendant, which put this baby at
risk as well. The crimes of robbery and carjacking were predominantly
independent of each other.
“With all this in mind, there are no factors in mitigation. Any one of these
circumstances in aggravation would justify the upper term. Of course, in
their totality, they definitely justify it.”
Initially, Johnson failed to object to the trial court’s use of any of the three
challenged factors used to aggravate the sentence. Neither party briefed the issue of
waiver. Pursuant to Government Code section 68081, we requested supplemental
briefing on this issue.
The California Supreme Court has applied the waiver doctrine to cases in which
the court states reasons inapplicable to the case; to cases in which the court purportedly
erred because it applied a sentencing factor more than once or misweighed factors; and to
cases in which the court failed to state reasons or to give a sufficient number of reasons

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5.
for a sentencing choice. (People v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Scott
(1994) 9 Cal.4th 331, 356-357.) Since Johnson did not object to the trial court’s use of
the enumerated aggravating factors to impose an upper prison term, he has waived this
contention on appeal.
Even if not waived, there is nothing improper about considering the callousness of
using a pellet gun to facilitate the offenses. Pantoja believed the gun to be real and was
in constant fear for his life. Although the personal-use-of-a-deadly-weapon allegation
was dismissed, it was dismissed presumably because a pellet gun is not a deadly weapon.
This has no bearing on the trial court’s ability to consider its use as an aggravating factor.
(Cal. Rules of Court, rule 4.421(a)(1) [court may consider factors in aggravation whether
or not they have been charged as an enhancement].)
Likewise, although use of fear or force is an element of carjacking, the trial court
was not “double dipping” when it considered the degree of violence used or the callous
nature of the threat used to force the victim’s compliance. (Cal. Rules of Court,
rule 4.421(a)(1) [court may consider as aggravating fact whether crime involved great
violence or high degree of cruelty, viciousness, or callousness].) Placing a gun to the
victim’s head and threatening to shoot him is beyond the level of violence needed to
effectuate the carjacking and exhibits a high level of viciousness. (See People v. O’Neil
(1997) 56 Cal.App.4th 1126, 1132 [use of profane language and yelling at victim
sufficient to support finding that taking was by force or fear].)
Finally, there is no merit to Johnson’s argument that the jury acquitted him of
kidnapping and, therefore, any testimony about pressing the gun to Pantoja’s head cannot
be considered because the jury “apparently” did not find the victim “credible in this
respect.” Pantoja testified that Johnson held the gun to his head not only during the
initial drive to the motel, but while he was forced to lie on the bed. The jury obviously
found this testimony credible because it convicted Johnson on counts 3 and 4, and force
is an element of both robbery and carjacking.

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6.
Further, there is nothing improper about using the fact that a small child was
present when the offenses were committed as an aggravating factor. Although Johnson
was not charged with child endangerment, his violent actions posed a high level of risk,
particularly to an infant. His actions were callous and justify the upper term. (See
People v. Hamilton (1995) 40 Cal.App.4th 1137, 1144 [carjacking victims are subjected
to threat of violence and are exposed to high level of risk]); see also Cal. Rules of Court,
rule 4.408(a) [criteria in rules not exclusive].)
We also reject Johnson’s contention that the court used two sides of the same coin
when noting both that Johnson’s prior juvenile adjudications were numerous and that he
was on misdemeanor probation at the time of this offense as factors justifying the upper
term. These are distinct concerns: Johnson’s history of recidivism and his failure to
comply with the terms of his prior grant of probation. In any event, under California law,
a single factor in aggravation is sufficient to support the upper term. (People v. Osband
(1996) 13 Cal.4th 622, 730.) Even if we were to decide these factors are too closely
intertwined to be considered separate, the two remaining factors are individually
sufficient to support the upper term, especially in light of the trial court’s record comment
that “[a]ny one of these circumstance in aggravation would justify the upper term.”
Lastly, we do not believe that the trial court “imprudently rejected” any mitigating
factors. The court has always been free to weigh aggravating and mitigating factors in
terms of both quality and quantity. (People v. Roe (1983) 148 Cal.App.3d 112, 119.) It
is not required to assign the same weight to mitigating factors argued by a defendant and
may minimize or even reject mitigating factors without stating its reasons. (People v.
Salazar (1983) 144 Cal.App.3d 799, 813; People v. Jones (1985) 164 Cal.App.3d 1173,
1181.) Johnson’s lack of felony priors is not significant in light of the number of juvenile
priors and the seriousness of the current offenses. Nor was the trial court obligated to
accept as a mitigating factor Johnson’s self-serving claim that “what he did was because
of drugs.”

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7.
II. Blakely
Johnson contends that by imposing the upper term on count 4 and the consecutive
term on count 3 based on factors including the use of a weapon, the number and
increasing seriousness of his prior convictions, and his unsatisfactory performance on
probation, the trial court violated his Sixth and Fourteenth Amendment rights to a jury
trial and proof of all facts beyond a reasonable doubt. He cites to Blakely v. Washington
(2004) 542 U.S. 296.
The California Supreme Court has now resolved the Blakely issue and rejected the
arguments made by Johnson. The imposition of a consecutive sentence based on facts
determined by the trial court, not admitted by Johnson or found by a jury, does not
deprive Johnson of his constitutional right to a jury trial or his rights to have all facts
legally essential to his sentence proved beyond a reasonable doubt. (People v. Black
(2005) 35 Cal.4th 1238, 1244, 1265.) No further discussion is required. (We are aware
that the United States Supreme Court is currently reviewing the applicability of Blakely
to California sentencing in People v. Cunningham (Apr. 18, 2005, A103501), cert.
granted sub nom. Cunningham v. California (2006) 126 S.Ct. 1329.)
III. Section 654
Johnson contends that section 654 prohibits punishment for both the carjacking
and the robbery of the ATM card because they are part of a single course of conduct, i.e.,
“a forceful demand for keys and money with the single intent and objective of depriving
the owner of property.”2 We disagree.
2The conduct which forms the basis of counts 3 and 4 does not include the initial
taking of the van after Pantoja stopped to ask Irons if she needed help. Although,
technically, if the initial taking of the van occurred as Pantoja testified, this too would
constitute a traditional carjacking. (§ 215.) However, this conduct served as the basis of
counts 1 and 2, which posed problems for the jury. In his opening and closing
arguments, the prosecutor told the jury that the evidence supporting the allegation in
count 3 was the act of taking Pantoja’s keys and driving to the ATM to withdraw cash

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8.
Johnson was properly convicted of both offenses because robbery is not a lesser-
included offense of carjacking. (People v. Ortega (1998) 19 Cal.4th 686, 700.)
However, Johnson could not be punished for both offenses if the crimes arose out of an
indivisible course of conduct. (§ 654; § 215, subd. (c).) Section 654 prohibits the court
from imposing multiple punishments where there has been a course of conduct which
violates more than one statute but nevertheless constitutes an indivisible transaction and
has a single intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1215; Neal
v. State of California (1960) 55 Cal.2d 11, 19.) The proper procedure where there is a
single intent and objective found is to stay execution of sentence on all but one of the
offenses. (People v. Pearson (1986) 42 Cal.3d 351, 359-361.) In determining whether
the facts call for the application of section 654, the threshold inquiry is to determine the
defendant’s objective and intent. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Whether there are multiple objectives is a question of fact for the trial court which must
be sustained on appeal if supported by substantial evidence. (People v. Monarrez (1998)
66 Cal.App.4th 710, 713.)
The trial court found that the robbery and carjacking were “predominately
independent of each other.” Although this is a close case, we believe the court’s finding
is supported by substantial evidence. (People v. Green (1996) 50 Cal.App.4th 1076,
1085 [defendant’s intent and objective are factual questions for trial court, whose
decision will be upheld if supported by record evidence].) Pantoja testified that Johnson
and Irons took him to motel room 16 and ordered him to lie face down or he would be
killed. Johnson ordered that Pantoja give his money to Johnson. When Pantoja said “I
don’t have any,” Johnson took the wallet, which contained approximately $20. Johnson
looked through the wallet. Irons testified that Johnson asked Pantoja for money and,
from Pantoja’s account. Neither Johnson nor respondent argue anything different on
appeal.

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9.
after Pantoja said “he only had $20,” Johnson “noticed credit cards” and asked Pantoja if
any of the cards “had money” on them. Johnson then ordered Pantoja to give Johnson a
pin number. When Pantoja complied, Johnson directed Irons to go withdraw money. He
handed Pantoja’s van keys to her. From this evidence, the trial court could reasonably
infer that the initial objective was to rob Pantoja of his money. When Johnson
discovered Pantoja only had $20, but had an ATM card that could be used to access
money, Johnson formed a new intent—to temporarily take Pantoja’s van in order to send
Irons to withdraw additional money from the ATM. (§ 215.)
Our conclusion is not prevented by People v. Green, supra, 50 Cal.App.4th 1076.
In Green, the initial intent was to rob the victim, who was approached in her garage and
robbed of her purse at gunpoint. The defendant then kidnapped the victim and sexually
assaulted her. After these intervening offenses were complete, took the victim’s car by
force. The court found that, because the carjacking was separated in time and place from
the initial robbery and was interrupted by the sexual attack, there was sufficient evidence
to support a finding that the robbery and carjacking were separate incidents meriting
separate punishment. (Id. at p. 1085.) True, the facts in Green more readily support a
finding of separate objectives than do the facts here. But the rule does not require
intervening offenses. It turns on whether a new intent and objective is formed beyond
that of the first offense. The rule applies equally here. The trial court found a new intent
and objective, and the evidence supports its finding. (See also People v. Hicks (1993) 6
Cal.4th 784, 789 [if offenses are independent of and not merely incidental to each other,
defendant may be punished separately even though violations shared common act;]
People v. Latimer, supra, 5 Cal.4th at p. 1208 [whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on intent and objective of actor].)
Johnson’s reliance on People v. Ortega (1998) 19 Cal.4th 686 and People v.
Dominguez (1995) 38 Cal.App.4th 410 is misplaced. In Ortega, the court held that,

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10.
“‘[w]hen a defendant steals multiple items during the course of an indivisible transaction
involving a single victim, he commits only one robbery or theft notwithstanding the
number of items he steals.’ [Citation.]” (Id. at p. 699.) The defendant in Ortega robbed
the driver of his wallet and pager, in conjunction with the carjacking of the driver’s van.
There was evidence that the robbery and carjacking were the result of the same objective
and intent.
To the contrary, in this case there is substantial evidence that the robbery and the
carjacking were separate and distinct and not committed pursuant to the same intention,
impulse, or plan. The offenses were therefore not part of an indivisible transaction as
was the case in Ortega. Similarly, in Dominguez, the court held that the defendant, who
pointed a gun at the victim and demanded “everything you have,” before taking jewelry
and the victim’s van, could not be punished for both carjacking and robbery. (People v.
Dominguez, supra, 38 Cal.App.4th at p. 414, 420.) The evidence established that the
same objective and intent existed for both offenses. Once this finding is made and the
evidence supports it, double punishment is improper. (§ 654.) Here, in contrast, we have
a different finding and different evidence.
We also reject Johnson’s contention that, because the two offenses were
accomplished by the same force or fear (holding the gun to Pantoja’s head and
threatening to shoot him), we must conclude that the two offenses share the same
objective. The court in Green found separate objectives to the offenses even though the
same force or fear (the same gun and same threat of harm) was used in that case. (People
v. Green, supra, 50 Cal.App.4th at pp. 1080-1081, 1085.) In many cases, the initial show
of force or threat of harm is sufficient to keep a victim fearful and to facilitate a number
of offenses, regardless of whether the offenses are supported by the same objective or
intent, as the facts in Green illustrate.
Since the evidence supports the trial court’s finding that the two offenses were
predominately independent of each other, it was not error to impose punishment for both.

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11.
IV. Imposition of consecutive terms
Lastly, Johnson contends that the trial court abused its discretion by ordering that
the sentences imposed for counts 3 and 4 run consecutively, presumably because it found
the crimes were independent of each other.
The governing rule of court provides that, in exercising discretion whether to
impose concurrent or consecutive sentences, a trial court may consider any circumstances
in aggravation or mitigation, except an element of the crime or an aggravating fact that
has been used to impose the upper term or enhance the prison term. (Cal. Rules of Court,
rule 4.425(b).) The trial court may also “consider the relationship between the crimes,
including (1) whether the crimes and their objectives were independent of each other,
(2) whether they involved separate acts of violence or threats of violence, and (3) whether
they were committed at different times or separate locations. [Citation.]” (People v.
Black, supra, 35 Cal.4th at p. 1262.) As we have already determined there is sufficient
evidence to support the court’s conclusion that the crimes were independent of one
another, there is no abuse of discretion in imposing consecutive terms.
DISPOSITION
The judgment be affirmed
_____________________
Wiseman, J.
WE CONCUR:
_____________________
Vartabedian, Acting P.J.
_____________________
Gomes, J.

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