People v. Jansen CA3

Filed 8/11/21 P. v. Jansen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C091973

Plaintiff and Respondent, (Super. Ct. No. CRF192208)

v.

MICHAEL EDWARD JANSEN,

Defendant and Appellant.

After a jury found defendant Michael Edward Jansen guilty of multiple crimes, including second degree burglary, the trial court sentenced him to 11 years in state prison. On appeal, defendant contends the trial court committed sentencing error by: (1) failing to recognize its discretion to strike a two-year enhancement; (2) refusing to strike a prior serious felony conviction for purposes of the three strikes law and a five-year enhancement; and (3) imposing costs without first determining defendant’s ability to pay. We affirm the judgment.

1

FACTS AND HISTORY OF THE PROCEEDINGS We need not discuss the underlying facts of defendant’s crimes as they are not relevant to our resolution of this appeal. A September 2019 information alleged defendant committed second degree burglary (Pen. Code, § 459; statutory section references that follow are to the Penal Code); grand theft of a firearm (§ 487, subd. (d)(2)); the crime of being a felon in possession of a firearm (§ 29800, subd. (a)(1)); the crime of being a felon in possession of ammunition (§ 30305, subd. (a)(1)); attempted taking or driving a vehicle (§ 664; Veh. Code, § 10851, subd. (a)); the crime of failure to appear after release upon his own recognizance (§ 1320, subd. (b)); and vandalism causing over $400 in damage (§ 594, subd. (b)(1)). The information also alleged that when defendant committed those crimes he had been released from custody in a different case (§ 12022.1), and that defendant suffered a prior serious felony conviction (§§ 667, subd. (e)(1), 1192.7, subd. (c)) in 2009 that also qualified as a prior serious felony conviction for purposes of the five-year enhancement contemplated by section 667, subdivision (a). In March 2020, a jury found defendant guilty on all counts except for the Vehicle Code offense, and defendant admitted the prior serious felony conviction for purposes of subdivisions (a) and (e) of section 667. As for the section 12022.1 enhancement, the trial court concluded that given our decision in People v. Johnson (2012) 208 Cal.App.4th 1092 (Johnson), defendant was not entitled to a jury resolution of the issue, and found the allegation true. The trial court said: “I . . . sent some information to the attorneys about the 12022.1 enhancement, specifically People versus Johnson . . . . So that’s really the case that the [c]ourt is relying on,” for the proposition that a defendant is not entitled to a jury trial on the truth of a section 12022.1 allegation.