People v. Johnson CA2/7

Filed 10/14/14 P. v. Johnson CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B249732

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA024081) v.

KENNETH WAYNE JOHNSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.

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Kenneth Wayne Johnson was convicted in 1996 of first degree burglary and sentenced pursuant to the three strikes law to an indeterminate state prison term of 35 years to life. He was also ordered to pay a restitution fine. Following a series of writ petitions and orders from this court during the past several years, the amount of the restitution fine was corrected to $500 and Johnson was ordered at a new restitution hearing to pay $13,540.29 in direct victim restitution.1 On appeal he contends the trial court violated his due process rights by failing at the 2013 restitution hearing to take judicial notice of a 1996 probation report, which had estimated the loss to the victims at $5,000. We affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. Posttrial Proceedings Preceding the 2013 Restitution Hearing In July 2011 Johnson petitioned this court for a writ of habeas corpus seeking to correct the minute order and abstract of judgment from his 1996 conviction, which improperly reflected imposition of a $5,000 restitution fine rather than a $500 fine under former Government Code section 13967. We issued an order to show cause returnable before the superior court. The People stipulated to the correction of the restitution fine but requested the trial court hold a hearing to determine actual restitution to the victims as required by Penal Code section 1202.4, subdivision (f).