People v. Johnson CA4/2

Filed 11/5/20 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E074037
v. (Super.Ct.No. BAF1701172)
PAUL WAYNE JOHNSON III, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On September 4, 2019, an amended information charged defendant and appellant
Paul Wayne Johnson III with seven crimes involving three victims as follows: (1) lewd
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acts on A.V., a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-3);
(2) oral copulation on A.V., a child under the age of 10 (Pen. Code, § 288.7, subd. (b);
counts 4 & 5); (3) lewd act on A.R., a child under the age of 14 (Pen. Code, § 288, subd.
(a); count 6); and (4) lewd act on N.M., a child under the age of 14 (Pen. Code, § 288,
subd. (a); count 7).
As to counts 1 through 5, the amended information alleged that defendant
committed the charged offenses against more than one victim under Penal Code section
667.61, subdivision (e)(4). As to counts 6 and 7, the information also alleged that
defendant engaged in tying or binding the victims while committing the charged offenses
under Penal Code section 667.61, subdivision (e)(5).
On September 10, 2019, a jury found defendant guilty on counts 1 through 5. The
jury deadlocked on counts 6 and 7. Moreover, although the jury foreperson entered a true
finding on the multiple-victims allegation on the verdict forms for counts 1 through 5,
two jurors denied finding the allegation true when polled. The trial court found that the
jury was hopelessly deadlocked on counts 6 and 7, as well as the special allegations on
counts 1 through 5. Therefore, the trial court declared a mistrial as to counts 6 and 7 and
the special allegations.
On November 1, 2019, the trial court sentenced defendant to prison for 12 years,
plus 30 years to life, as follows: (1) the upper term of eight years on count 1; (2) midterm
of two years, consecutive, on counts 2 and 3; and (3) two consecutive 15-years-to-life
terms on counts 4 and 5. On the People’s motion, the trial court dismissed counts 6 and
7.
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On July 20, 2020, the court struck the enhancement allegations attached to counts
1 through 5.
On November 4, 2019, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY1
When A.V. was around five years old, she and her younger brother moved in with
their maternal grandmother (Grandmother), who lived in San Bernardino. Defendant,
who was Grandmother’s boyfriend, lived with them, as did A.V.’s uncle. A.V. saw her
mother only on the weekends.
When A.V. was around five or six years old, defendant started to touch her breasts
and vagina. It occurred “about every week.” Defendant told A.V. not to tell anyone and
told her “it was a game.”
When A.V. and defendant were in the garage once, he told her to touch his penis.
Defendant put his penis in A.V.’s mouth. A.V. stated that “some stuff came out,” and
defendant wiped it off with a towel.
When A.V. was around eight years old, they moved from San Bernardino to
Hemet. A.V., Grandmother, A.V.’s great-grandmother, A.V.’s younger brother, her two
uncles, and defendant lived together. A.V. continued to see Mother on the weekends and
at family events.
Defendant continued touching A.V. in the Hemet house. When they were alone,
defendant would touch A.V. in Grandmother’s bedroom or in the living room. He
1 Facts related to counts 6 and 7 are omitted since the jury deadlocked on—and
the court dismissed—those counts.
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touched A.V.’s breasts and vagina under her clothes. A few times, defendant grabbed
A.V.’s butt. On at least one occasion, A.V. touched defendant’s penis with her hands.
One time, defendant put his penis on A.V.’s thigh or vagina while they were in the
bedroom. His penis was “straight.” She could not remember if she had clothes on during
this incident.
On more than one occasion, defendant orally copulated A.V. while she lay on the
bed in the bedroom. At least once, defendant orally copulated A.V. in the living room
while she sat on the couch and he was on his knees in front of her.
Once when A.V. was in the bathroom, defendant came in and asked her if she
wanted “to see the white stuff come out.” He pulled his pants down, masturbated, and
ejaculated. As defendant was wiping the “white stuff,” Grandmother entered the
bathroom; she took A.V. into Grandmother’s room and asked her, “Do you want him to
go to jail?” A.V. responded, “no.”
A.V. sometimes said “no” to defendant when he was attempting to touch her.
Although defendant stopped a few times, he usually continued to touch her even when
A.V. said “no.” When A.V. would tell defendant the touching made her feel
uncomfortable, defendant would respond that “he used to do it to his daughter,” which
would make A.V. think that what he was doing was okay.
One weekend when A.V. was nine years old, she was at Mother’s house; she and
her stepsister were in bed watching a movie. Mother caught them kissing and touching
each others’ private parts. When Mother talked to A.V. about the incident, she told
Mother that defendant had been touching her.
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The next morning, Mother took A.V. to the police station, where A.V. took part in
a forensic interview. Two days later, A.V. underwent a physical examination. The
examiners found nothing unusual.
Defendant testified that he never touched A.V. He stated that he had spent time
with his nieces and nephews, grandnieces and grandnephews, and with children in a
church group. He had never previously faced allegations of inappropriate behavior.
Defendant met Grandmother and moved in with her in 2005. Mother was around
12 years old at the time. She was disrespectful to Grandmother and did not like
defendant. When Mother was 16 or 17 years old, she gave birth to A.V. At that time,
Mother was using drugs and “running in the streets.” On one occasion, Mother called
asking Grandmother to pick A.V. up. Grandmother refused, but defendant went to the
location, which was a motel, and found A.V. in the room, still in her car seat. There were
five men in the room with Mother and A.V. When A.V. was around three years old
Grandmother became the guardian for A.V. and A.V.’s younger brother.
Defendant testified that when A.V. was eight or nine years old, A.V. wanted to
live with Mother. Grandmother and defendant supported Mother taking her children
back but they wanted Mother to be responsible. They reminded Mother she had to show
a year of stable housing and employment. Thereafter, Mother filed false allegations that
defendant was beating the children. She later apologized for lying.
Defendant stated that Grandmother “had a strong sense of what was right and
wrong” and would not have tolerated any misconduct by defendant. She never would
have protected defendant if she had found him in the bathroom, as claimed by A.V.
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Defendant’s older brother Anthony testified at trial. Anthony lived with
Grandmother and defendant for two years during the time they cared for A.V. and her
brother. He stated that defendant tried to “[do] the right thing by the kids.” Sometimes
the children would cause dissent in the home and there would be an uncomfortable
atmosphere in the home. Defendant never in his life displayed a sexual interest in
children and was trustworthy and honest “[a]s much as any of us would be at any given
time.” He did not believe defendant was a liar. When asked if defendant was the type of
person to do something inappropriate to a child, defendant’s brother answered,
“Absolutely not.”
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
(1) “Did the trial court prejudicially err by instructing the jury about unanimity
with CALCRIM No. 3500 (Unanimity), rather than CALCRIM No. 3501 (Unanimity:
When Generic Testimony of Offense Presented)?”
(2) “Did the trial court prejudicially err by failing to instruct the jury with
CALCRIM No. 302 on evaluating conflicting evidence?”
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We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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