People v. Johnson CA4/3 ( 2024 )

Filed 10/17/24 P. v. Johnson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063882
v. (Super. Ct. No. FSB20001028)
JEREMIAH JOHNSON, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino
County, Ronald M. Christianson, Judge. Affirmed in part, reversed in part,
and remanded.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted Jeremiah Johnson of attempted murder, among
other offenses. The jury also found true certain allegations of aggravating
sentencing circumstances for purposes of Penal Code section 1170,
subdivision (b)(2).1 Relying on sentencing circumstances found by the jury,
the trial court imposed an upper-term sentence for the attempted murder,
resulting in a total sentence of 29 years 8 months in prison.
Johnson challenges his attempted murder conviction and his
sentence. Regarding the conviction, he claims the evidence did not support a
finding that he had acted with intent to kill. As for the sentence, he argues,
inter alia, that the trial court erred in relying on two of the sentencing
circumstances because: (1) the prosecution improperly failed to plead one of
them; (2) the court misinstructed the jury by omitting an essential element of
both circumstances; and (3) the evidence did not support those circumstances.
As discussed below, we conclude the evidence supported the
attempted murder conviction. We also conclude that the evidence supported
the relevant sentencing circumstances and that Johnson forfeited his claim of
pleading error. However, we agree that the trial court erred by failing to
instruct on an essential element of the relevant sentencing circumstances.
Accordingly, we reverse the sentence and remand for further proceedings.2
We affirm the convictions.
1 Undesignated statutory references are to the Penal Code.
2 Johnson also claims that in imposing the upper-term sentence,
the trial court improperly relied on a third aggravating circumstance
pertaining to use of a firearm. The parties agree that reliance on this
circumstance would have been error but disagree on whether the court
actually relied on it. Because we remand for further sentencing proceedings,
we need not address this factual issue. On remand, the court shall not rely on
this sentencing circumstance.
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FACTS
I.
THE INFORMATION
The prosecution charged appellant with attempted murder and
other offenses. The information alleged several firearm enhancements. It
further alleged several aggravating sentencing circumstances, including that
the crimes “involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness.” (California Rules of Court, rule 4.421(a)(1); the “great violence”
circumstance.)3 The information did not include an additional allegation that
Johnson had “engaged in violent conduct that indicate[d] a serious danger to
society.” (Rule 4.421(b)(1); the “danger to society” circumstance.) The matter
proceeded to bifurcated trials on guilt and the aggravating circumstances.
II.
GUILT PHASE EVIDENCE AND VERDICT
In February 2020, Johnson and his father drove together to a
liquor store in San Bernardino. Security video from the front of the store
showed the victim and several other individuals gathered just outside the
store.4
After Johnson and his father arrived at the store’s parking lot,
Johnson entered the store and returned to the vehicle with items. He then
walked back toward the front of the store. The victim walked toward
Johnson, and the two shook hands.
3 Undesignated rule references are to the California Rules of
Court.
4 The video did not contain audio.
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After an exchange of words, the victim turned and walked a short
distance to place his drink near the store’s entrance—where at least four
other individuals stood—before turning back toward Johnson. As the victim
took two steps in his direction, Johnson calmly drew a handgun from his
pocket. The victim turned back and ran toward the store, and the other
individuals ran in different directions. Johnson then fired at the victim,
hitting him twice—once in the torso and once in the arm. Johnson fled the
scene, but police apprehended him about one month later.
Still from surveillance video showing Johnson (center;
wearing black sweatshirt) taking first shot at victim
(right; wearing white jersey and red cap)
After hearing the evidence, the jury found Johnson guilty of
attempted murder and other offenses. It also found certain firearm
enhancements to be true.
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III.
TRIAL ON AGGRAVATING CIRCUMSTANCES AND SENTENCING
After the jury rendered its guilt-phase verdicts, the trial court
provided the parties with the instructions it intended to give the jury on
sentencing circumstances. In addition to the great violence circumstance and
other aggravating circumstances listed in the information, the court included
an instruction on the danger to society circumstance. Johnson objected that
some of the instructions, including on the danger to society circumstance,
were vague and overbroad. He did not object to the inclusion of an instruction
on the danger to society circumstance. During this phase of the trial, the
prosecution largely relied on guilt-phase evidence to establish the truth of the
aggravating circumstances.
At the close of evidence, the parties argued their respective
positions, including on the danger to society circumstance. The trial court
then instructed the jury in accord with the proposed instructions it had
provided the parties. The court informed the jury it was called to determine
whether certain “[s]entencing [c]ircumstances” were true. As relevant here,
the court instructed as follows on the great violence circumstance: “[Y]ou
must decide whether the crimes involved great violence, great bodily harm,
threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness within the meaning of . . . [r]ule 4.421(a)(1). [¶] To
prove this allegation, the [prosecution] must prove that the crimes involved
great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness.”
As to the danger to society circumstance, the trial court
instructed: “[Y]ou must decide whether [Johnson] has engaged in violent
conduct that indicates a serious danger to society, within the meaning of . . .
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[r]ule 4.421(b)(1). [¶] To prove this allegation, the [prosecution] must prove
that [Johnson] has engaged in violent conduct that indicates a serious danger
to society.” The court gave the jury verdict forms that included this
allegation.
Following trial, the jury found that four sentencing circumstances
applied, including the great violence and danger to society circumstances. At
sentencing, the trial court imposed an upper-term sentence of nine years in
prison for the attempted murder charge, resulting in a total sentence of 29
years 8 months. Johnson timely appealed.
DISCUSSION
I.
ATTEMPTED MURDER CONVICTION
Johnson contends his conviction for attempted murder cannot
stand because the evidence was insufficient to support a finding that he acted
with intent to kill when he fired on the victim. “Attempted murder requires
the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003)
31 Cal.4th 613, 623.) Because there is rarely direct evidence of a defendant’s
intent, “[s]uch intent must usually be derived from all the circumstances of
the attempt, including the defendant’s actions. [Citation.]” (People v. Smith
(2005) 37 Cal.4th 733, 741.)
“In reviewing a sufficiency of evidence challenge, we view the
evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. [Citations.]” (People v. Gonzalez (2012)
54 Cal.4th 643, 653.) “We presume in support of the judgment the existence
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of every fact the trier of fact reasonably could infer from the evidence.
[Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Sufficient evidence supported the jury’s finding that Johnson had
acted with intent to kill. “[T]he act of purposefully firing a lethal weapon at
another human being at close range, without legal excuse, generally gives
rise to an inference that the shooter acted with express malice,” i.e., with
intent to kill. (People v. Smith, supra, 37 Cal.4th at p. 742; accord, People v.
Medina (2019) 33 Cal.App.5th 146, 153 [“Firing a gun at [the victims] from
[15 to 20 feet away] was substantial evidence from which the jury could find a
specific intent to kill”].) Here, Johnson shot the victim twice from only several
feet away, as the victim attempted to flee. From these circumstances, the jury
was entitled to infer that he had acted with intent to kill. (People v. Smith, at
p. 742; People v. Medina, at p. 153.) Accordingly, the evidence supported his
conviction for attempted murder.
II.
AGGRAVATING CIRCUMSTANCES
Johnson contends the trial court erred by relying on the great
violence and danger to society circumstances in imposing an upper-term
sentence for the attempted murder conviction. He asserts: (1) the prosecution
improperly failed to plead the danger to society circumstance; (2) the court
erred in instructing the jury on both circumstances by omitting a
requirement that his conduct must be worse than the ordinary commission of
the crime; and (3) the evidence did not support those circumstances.
As discussed below, we conclude that Johnson forfeited his
failure-to-plead claim and that sufficient evidence supported the two
sentencing circumstances. However, we agree that the court erred by
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omitting a necessary element of those circumstances. Accordingly, we reverse
the sentence and remand.
A. Failure to Plead the Danger to Society Circumstance
Johnson forfeited his claim concerning the prosecution’s failure to
allege the danger to society circumstance in the information. Johnson
received sufficient notice that this allegation would be submitted to the jury.
Before the start of the trial on sentencing circumstances, the trial court
provided the parties with proposed jury instructions on the danger to society
circumstance. At the close of evidence, the parties argued their respective
positions regarding this allegation, and the court instructed the jury on it.
Had Johnson timely objected to the prosecution’s failure to include this
allegation in the information, the court would have had an opportunity to
provide an appropriate remedy. (People v. Houston (2012) 54 Cal.4th 1186,
1228.) “Because [Johnson] had notice of the [danger to society allegation] and
did not raise an objection in the trial court, he has forfeited this claim on
appeal. [Citation.]” (Ibid.)
Johnson claims the failure to plead the danger to society
circumstance rendered his sentence unauthorized, meaning he may challenge
it on appeal even without an earlier objection. He is mistaken. A pleading
defect generally does not result in an unauthorized sentence, and a defendant
must object to preserve the claim for appeal. (People v. Anderson (2020)
9 Cal.5th 946, 962 [unpleaded sentence enhancements].) Accordingly,
Johnson has forfeited his claim, and we decline to address it.
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B. Instructional Error
1. Governing Principles
a. Duty to instruct on aggravating facts
“All criminal defendants have the right to ‘a jury determination
that the defendant is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt.’ [Citations.]” (People v. Merritt (2017)
2 Cal.5th 819, 824 (Merritt).) Thus, “[t]he trial court has a sua sponte duty to
instruct the jury on the essential elements of the charged offense. [Citation.]”
(Ibid.) Failure to do so is a “very serious constitutional error” (ibid.), and is
reversible unless “it is clear beyond a reasonable doubt that a rational jury
would have rendered the same verdict absent the error” (id. at p. 831).
“Other than the fact of 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.” (Apprendi v.
New Jersey (2000) 530 U.S. 466, 490.) Thus, a sentencing provision that
increases the penalty for a crime beyond the statutory maximum is “the
‘functional equivalent’ of an element of a greater offense for purposes of a
defendant’s federal constitutional rights under the Fifth and Sixth
Amendments. [Citations.]” (People v. Anderson (2009) 47 Cal.4th 92, 116.)
b. Circumstances justifying an upper-term sentence
Effective January 1, 2022, section 1170, subdivision (b) “was
amended to prohibit imposition of an upper term sentence unless aggravating
circumstances justify that term and the facts underlying any such
circumstance, other than a prior conviction, ‘have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.’ [Citation.]” (People v. Lynch (2024)
16 Cal.5th 730, 742 (Lynch).) Under this amendment, “the facts supporting
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every aggravating circumstance upon which the trial court relies to ‘justify’
imposition of the upper term must be properly proven as the statute requires.
[Citation.]” (Id. at p. 757.) Those facts “effectively function like elements of a
crime” and therefore trigger the Sixth Amendment’s jury trial guarantee. (Id.
at p. 760.)
The amended statute does not specify what constitutes an
aggravating circumstance (§ 1170, subd. (b)(2)), but the California Rules of
Court set out a nonexhaustive list of factors that may be considered
circumstances in aggravation. (Rule 4.421(c); Lynch, supra, 16 Cal.5th at
p. 785 (conc. & dis. opn. of Kruger, J.).) The great violence and danger to
society circumstances are among those factors. (Rule 4.421(a)(1) & (b)(1).)
Although neither circumstance mentions this requirement, caselaw makes
clear that aggravating circumstances must “make[] the offense ‘distinctively
worse than the ordinary.’ [Citations.]” (People v. Black (2007) 41 Cal.4th 799,
817.) Thus, the relevant model jury instruction—promulgated after the
proceedings below—instruct that the jury may not find allegations under
these circumstances true unless the defendant’s conduct “was distinctively
worse” than an ordinary commission of the underlying crime. (CALCRIM
Nos. 3224 & 3234.)
2. Analysis
We conclude the trial court erred by failing to instruct the jury
that the great violence and danger to society circumstances each required a
showing that Johnson’s conduct was distinctively worse than an ordinary
commission of attempted murder.5 Johnson was constitutionally entitled to
jury findings on the facts exposing him to a higher maximum sentence.
5 We review claims of instructional error de novo. (People v.
Rivera (2019) 7 Cal.5th 306, 326.)
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(Lynch, supra, 16 Cal.5th at pp. 757, 760.)6 Thus, the trial court had a sua
sponte duty to instruct the jury on the elements of those sentencing
circumstances. (Merritt, supra, 2 Cal.5th at p. 824.) As explained above, it is
a necessary element under each of these circumstances that the defendant’s
conduct was distinctively worse than the ordinary. (People v. Black, supra,41 Cal.4th at p. 817.) The court was therefore required to instruct the jury on
that element.7 (Merritt, at p. 824.)
The Attorney General contends there was no instructional error.
He asserts it was permissible for the trial court to instruct on the sentencing
circumstances using only the language of the Rules of Court because that
language was not difficult for the jury to understand. According to the
Attorney General, “[Johnson]’s real complaint is that the trial court did not
provide a sufficiently detailed definition of the term aggravation as it relates
to each of the factors,” yet that term “is commonly understood” and requires
no further definition.
The Attorney General mistakenly believes that the trial court’s
instructions referenced the term “aggravation.” That term (and its different
morphological forms) appeared nowhere in the court’s instructions, which
referred to “[s]entencing [c]ircumstances.” And the language of the
instructions on the great violence and danger to society circumstances—
6 This court ordered the parties to submit supplemental briefs
addressing the impact of Lynch on the issues on this case, but the Attorney
General failed to file a timely brief.
7 We reject the Attorney General’s contention that Johnson
forfeited his claim of instructional error by failing to object below, as “it is
well settled that no objection is required to preserve a claim for appellate
review that the jury instructions omitted an essential element of the charge.
[Citations.]” (People v. Mil (2012) 53 Cal.4th 400, 409.)
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tracking the relevant Rules of Court— provided no other hint that the jury
was required to find conduct distinctively worse than an ordinary commission
of attempted murder. The court therefore erred in failing to instruct on this
essential element. (Merritt, supra, 2 Cal.5th at p. 824.) The Attorney General
does not attempt to show that the error was harmless beyond a reasonable
doubt. Accordingly, we must reverse the judgment. (Id. at p. 831; People v.
Jackson (2014) 58 Cal.4th 724, 748 [Attorney General has burden to show
any federal constitutional error was harmless beyond reasonable doubt].)
C. Sufficiency of the Evidence
Johnson argues there was insufficient evidence to support the
danger to society and great violence circumstances because his conduct did
not exceed what an attempted murder inherently involves. We disagree.
After a spontaneous encounter and exchange of words between
Johnson and the victim, Johnson calmly pulled out a handgun and fired
multiple shots at the victim as he was fleeing.8 The victim was running inside
an open store and was in close proximity to several other individuals. A jury
could find that Johnson’s conduct posed a threat of great bodily harm to
multiple individuals beyond the intended victim of his attempted murder
offense, satisfying the great violence circumstance. And Johnson’s calm
demeanor and disregard for the lives of bystanders as he attempted to kill a
victim who had already withdrawn from the confrontation permits a finding
that he presents a serious danger to society. These circumstances go above
and beyond what attempted murder inherently involves. Accordingly, the
evidence sufficiently supported affirmative findings on these circumstances.
8 Johnson incorrectly asserts he fired at “an advancing opponent.”
As shown above, the victim had already turned to run to the store when
Johnson started firing.
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Because there was sufficient evidence to support these circumstances, on
remand, the prosecution may choose to retry Johnson on all sentencing
circumstances. (People v. Franco (2009) 180 Cal.App.4th 713, 726 [where
instructional error requires reversal but substantial evidence supports
verdict, prosecution may opt to retry defendant].)
DISPOSITION
The convictions are affirmed. The sentence is reversed, and the
matter is remanded for (1) resentencing without the danger to society and
great violence circumstances or (2) retrial on all sentencing circumstances, at
the option of the prosecution.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MOTOIKE, J.
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