People v. Johnson CA2/1

Filed 12/30/14 P. v. Johnson CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B255729

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA133055) v.

KAYRI MISEAN JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed. Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief summation of the factual and procedural history of the case. (People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) PROCEDURAL BACKGROUND By Information, appellant Kayri Misean Johnson, was charged with second degree robbery (Penal Code, § 2111). The Information further alleged that, in committing the charged offense, appellant personally used a handgun (within the meaning of §§ 12022.53, subd. (b) & 1192.7, subd. (c)(8)); that he had a prior strike (§§ 667, subds. (b)-(j) & 1170.12); and that he had suffered a prior serious felony (§ 667, subd. (a)(1)). Appellant pleaded not guilty. A jury thereafter found him guilty of robbery but did not find true the allegation as to personal use of a firearm. A bifurcated trial was conducted as to appellant’s prior conviction (LASC Case No. TA113893), as to which the jury made a true finding. Appellant was sentenced to 15 years in prison, the upper term of five years for his robbery conviction, doubled for the strike, plus a five year consecutive term enhancement for the prior serious felony conviction. He timely appealed. FACTUAL BACKGROUND On the evening of December 10, 2013, as Jose Antonio Valenzo (Antonio) headed toward his car parked near the corner of 96th and Baird Streets in Los Angeles, he was approached by a black man (later identified as appellant) wearing black pants and a black sweater. As Antonio stepped back to allow appellant to pass by appellant grabbed Antonio and tried to hit him in the face. The men struggled and appellant pulled a gray object, which Antonio feared was a gun, from his waistband and poked it into Antonio’s