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The People v. Larry andrew Johnson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


September 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LARRY ANDREW JOHNSON, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. CM032282 & CM032283)

The opinion of the court was delivered by: Blease , J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After pleading guilty to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) with three prior convictions for the same offense (Veh. Code, § 23550), and admitting a prior prison term (Pen. Code, § 6675., subd. (b)), defendant Larry Andrew Johnson was sentenced to an aggregate term of six years eight months in state prison.

On appeal, defendant contends the trial court abused its discretion when it imposed the upper term and ordered defendant's sentences to be served consecutively based on an improper dual use of facts. Defendant further contends the trial court erred in failing to consider his mental illness and alcohol addiction as mitigating factors in sentencing. We affirm the judgment.

BACKGROUND

On February 4, 2010, defendant's spouse stopped a police officer on a public road. She reported that defendant had been assaulting her in the car as they drove around town. She described defendant punching her several times, including punches to the face and head. Defendant also tried to choke or strangle his wife by twisting the collar of her shirt.

The police officer noted the victim had abrasions on her neck and nose. In addition, her right cheek and temple were swollen. The victim reported a history of migraine headaches and said she suffered a "horrible headache" as a result of the assault. Defendant was arrested; he had a blood-alcohol level of .31 percent.

Defendant was subsequently charged in Butte County Superior Court case No. CM032283 with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)). It was further alleged that defendant was previously convicted of domestic violence. (Pen. Code, § 273.5, subd. (e).)

Then, on March 8, 2010, defendant was stopped by a police officer for driving 50 miles per hour in an area with a 35 mile per hour speed limit. The officer noted that defendant's eyes were watery and his breath smelled of alcohol. A search of defendant's car revealed two open bottles of whiskey. Defendant did not have a driver's license, and the rear license plate was registered to a different vehicle. A breath test indicated defendant's blood-alcohol content was .16 percent.

Defendant was charged in Butte County Superior Court case No. CM032282 with driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol content of .08 percent or higher (Veh. Code, § 23152, subd. (b)), driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and providing false evidence of vehicle registration (Veh. Code, § 4462.5). It was further alleged that defendant had three prior convictions for driving under the influence of alcohol (Veh. Code, §§ 23550 & 23550.0), had a blood-alcohol content of .15 percent or higher (Veh. Code, § 23578), was previously convicted of a serious or violent felony (Pen. Code, § 1170.12, subd.(a)), and previously served a prison term (Pen. Code, § 667.5, subd. (b)).

Defendant pleaded guilty in case No. CM032282 to driving under the influence of alcohol with three prior convictions for driving under the influence of alcohol, and admitted he previously served a term in prison. In case No. CM032283, defendant pleaded guilty to corporal injury to a spouse with a prior conviction for domestic violence. Defendant stipulated to a maximum sentence of six years eight months in state prison; the remaining charges and allegations were dismissed with a Harvey*fn1 waiver.

At sentencing, the trial court indicated its intent to sentence defendant to the upper term of five years for the domestic violence conviction, a consecutive one-third of the upper term for defendant's DUI conviction (eight months), and an additional one year for defendant's prior prison term. In support of the upper term, the trial court found defendant was "on parole at the time of the offense," that defendant was "consuming alcohol," and the offense was a repeated offense of domestic violence.

Defendant asked the court to consider imposing the middle term "given the enhanced sentencing arranged, already inaugurated by our legislature . . . ." The trial court was not persuaded: "This is one of those cases where I look for the maximum possible time that I can keep this man off our streets in order to maybe save the life of someone, because you will kill someone one day, sir, if you don't stop drinking and driving."

The court then sentenced defendant to an aggregate term of six years eight months. The court further ordered defendant to pay various fines and fees, and awarded him 173 days of custody credit in case No. CM032282 (87 actual, 86 conduct). Because defendant had absconded from parole when he committed his DUI, defendant was denied custody credits in case No. CM032283 pursuant to People v. Bruner (1995) 9 Cal.4th 1178.

Defendant appeals from the judgment and sentence; his request for a certificate of probable cause was denied.

DISCUSSION

Defendant contends the trial court erred in using the same facts to both enhance his sentence and order consecutive sentences. Defendant further contends the trial court violated the prohibition against dual use of facts by relying on facts that constitute elements of his crimes to enhance his sentence.

The People argue defendant forfeited the claim by failing to raise it at trial, and, in any event, any error was harmless. We agree defendant's claims are forfeited. "[C]complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott); see also People v. Sharp (2003) 112 Cal.App.4th 1336, 1339.)

Defendant contends he preserved his objection in the trial court by arguing for the middle term and noting that his sentence was already enhanced as a result of the prior prison term. Whatever his argument in support of the middle term may have been, defendant never objected to the court's reasons for imposing the upper term or consecutive sentences. Defendant's failure to do so forfeits these claims on appeal. (Scott, supra, 9 Cal.4th at pp. 353, 355; People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.)

Defendant also claims the trial court erred in failing to consider his mental illness and alcoholism as mitigating circumstances in sentencing. Defendant did not argue either of these as mitigating factors in the trial court. He has, therefore, forfeited the issue on appeal. (See Scott, supra, 9 Cal.4th at pp. 353, 355; see also People v. Brown, supra, 83 Cal.App.4th at pp. 1041-1042.)

Defendant argues the trial court was made aware of these mitigating factors through the probation report. Whether the probation report contained evidence of defendant's mental illness or alcoholism, it is defendant who bears the burden of raising the issue at sentencing in order to preserve it for appeal.

DISPOSITION

The trial court judgment is affirmed.

We concur: RAYE , P. J. MAURO , J.


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