People v. Johnson CA5

Filed 8/6/14 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066203 Plaintiff and Respondent, (Super. Ct. No. RF6056A) v.

DAUNTE MAURICE JOHNSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.

Defendant Daunte Maurice Johnson was convicted by jury of burglary and aggravated assault. On appeal, he contends that the court should have instructed sua sponte on the lesser included offense of simple assault. We affirm. PROCEDURAL SUMMARY On June 20, 2012, the Kern County District Attorney charged defendant with burglary of an inhabited dwelling (Pen. Code, § 460, subd. (a), count 1) and assault with a deadly weapon, to wit, a shoe (§ 245, subd. (a)(1), count 2). As to count 1, it was alleged that another person other than an accomplice was present during the commission of the burglary under section 667.5, subdivision (c)(21). As to count 2, it was further alleged that defendant inflicted great bodily injury upon a person not an accomplice under section 12022.7. At trial, a jury found defendant guilty on both counts. The jury found true the allegation that another person other than an accomplice was present in the residence. The jury found not true that defendant inflicted great bodily injury. Defendant was also found to be in violation of his probation. Defendant was sentenced to the middle term of four years on count 1. The sentence for count 2 was stayed pursuant to section 654. Defendant was ordered to pay restitution as well as other fines and fees. Defendant timely filed a notice of appeal on November 21, 2012. FACTS On May 19, 2012, at approximately 3:30 a.m., Ridgecrest Police Officer Bill Groves was dispatched to the house of William Mills, Jr. Groves found the victim, James Johnson, lying face up on the living room floor. His nose and left eye were swollen. He had blood coming from his nose and ears. Groves asked the victim if he recalled what happened. The victim had no recollection of what took place. He later testified that he fell asleep at Mills’s house and woke up in the hospital.