People v. Johnson CA3

Filed 12/31/13 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C070250

Plaintiff and Respondent, (Super. Ct. Nos. 08F08054, 08F10037, 09F01034, v. 09F08416)

TONY JOHNSON, SR.,

Defendant and Appellant.

This case comes to us on appeal following a remand for resentencing after the trial court had imposed an unauthorized sentence by imposing concurrent sentences for two on-bail enhancements. Defendant contends the trial court violated principles of due process and double jeopardy when it resentenced him to a term four years greater

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than his initial sentence by imposing consecutive sentences for the two on-bail enhancements. We affirm. FACTUAL AND PROCEDURAL BACKGROUND1 Defendant was convicted by a jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2))2 and possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)). Following these verdicts, defendant pleaded no contest in three other felony cases involving drunk driving and related charges. Defendant also admitted three on-bail enhancements pursuant to former section 12022.1, subdivision (b).3 The trial court sentenced defendant to state prison for eight years, consisting of the upper term of four years for assault with a firearm; two years for the weapon possession, stayed pursuant to section 654; eight months consecutive for each of the felony driving under the influence convictions; and two years for one on-bail enhancement. As for the remaining on-bail enhancements, the court stated, “Probation has recommended 2 years for each of the three violations, which would constitute 6 years. . . .

1 On April 30, 2012, we granted defendant’s motion to incorporate case No. C064750, including the unpublished opinion filed in that appeal, People v. Johnson (Aug. 16, 2011, C064750) [nonpub. opn.]. 2 Undesignated statutory references are to the Penal Code. 3 Defendant committed the driving under the influence offenses while he was on bail for the case in which he was charged with assault with a firearm and possession of a firearm by a convicted felon.