People v. Johnson CA3

Filed 8/24/15 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C077614

Plaintiff and Respondent, (Super. Ct. No. SF111178B)

v.

VANDELL JOHNSON, JR.,

Defendant and Appellant.

This is the second appeal by defendant Vandell Johnson, Jr., following jury verdicts finding him guilty of two counts of robbery. In his first appeal, we affirmed his convictions but remanded for retrial on the prior strike allegations and resentencing. (People v. Johnson (2012) 208 Cal.App.4th 1092.) On remand, the trial court found two prior strike allegations true, declined to exercise its discretion to dismiss either strike, and sentenced defendant to two consecutive 25-years-to-life terms. Defendant appeals. He contends (1) the strike priors must be stricken because he did not waive his right to a jury determination of their truth; (2) the prior strike findings must be stricken because, as juvenile adjudications, he was not afforded a jury trial on

1

their truth; and (3) the trial court erred in denying his request to dismiss one or more of his prior strikes. We shall affirm. BACKGROUND We provide a summary of the procedural background of this case, omitting a recitation of the facts underlying the offenses because it is immaterial to the resolution of the issues on appeal. Defendant and codefendant Rammel Barao were jointly charged with having murdered Juan Carlos Lorenzo in the course of robbing him, and with the robbery of Lorenzo and Lorenzo’s companion, Domingo Moyotl. Each count alleged that Barao personally used a firearm and that defendant was armed with a firearm. It was further alleged that defendant had three prior strike convictions, all of which were incurred in juvenile court, and that defendant had committed the instant offenses while on bail for another offense. Prior to the presentation of evidence, the trial court granted defendant’s motion to bifurcate the trial of the prior convictions and the on-bail enhancements. In a joint trial by jury, defendant was acquitted of the murder and all lesser included offenses, but was found guilty of the two robberies; the armed enhancements were found not true. On September 3, 2010, after the jury had returned its verdicts, the court dismissed the jury. After the jury left the courtroom, defense counsel reminded the court that “we still need to do the issue of priors” and it was agreed the matter, including defendant’s formal waiver of a jury trial, would be continued to October 18. On October 18, 2010, defendant stipulated that the on-bail allegations were true. However, in our opinion in defendant’s previous appeal, we concluded that no ruling on the priors was actually made on that date. Accordingly, we reversed and remanded for further proceedings so as to allow the People to proceed with proving the prior strike allegations. (People v. Jenkins (2006) 140 Cal.App.4th 805, 814-815.)