People v. Johnson CA5

Filed 8/8/14 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066690 Plaintiff and Respondent, (Super. Ct. No. 12CM7361) v.

ANTHONY JOHNSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

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

A jury convicted appellant, Anthony Johnson, of battery by a state prison inmate upon a non-inmate (Pen. Code, § 4501.5) and found true an allegation that appellant had suffered a “strike.”1 The court imposed a prison term of two years, representing one- third of the three-year midterm for the instant offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and ordered that that term run consecutively to two prison terms appellant was serving at the time of the instant offense. Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The Instant Offense Consuelo Martin testified to the following: On December 7, 2011 (December 7), she was employed as a correctional officer at Corcoran State Prison (Corcoran SP). At approximately 5:00 p.m. on that date, she and Correctional Officer Eduardo Limon were in the process of serving the evening meal to inmates when they arrived at cell number 48 (Cell No. 48). The officers could not see inside the cell because the inmate in the cell, appellant, “had his light covered up.” Officer Limon directed appellant to uncover the light and move to the back of the cell. Appellant complied, moving approximately half way to the back of the cell. Once the light was uncovered, Martin was able to see appellant, alone, inside the cell. There was a “food port” in the cell door, and Limon unlocked and opened