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The People v. Lydia Lavern Johnson

October 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LYDIA LAVERN JOHNSON, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM031250, CM031296)

The opinion of the court was delivered by: Hoch , 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed defendant's supplemental brief and the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Summary of Facts*fn1 and Procedural History

Defendant Lydia Lavern Johnson and the victim had lived together on and off for the 10 months preceding July 13, 2009. The victim had been trying to terminate the relationship and defendant had been responding by becoming violent.

The victim had moved in with a neighbor in order to avoid defendant. On July 13, 2009, defendant went to the neighbor's residence four times. The first time, defendant threatened to hit the victim with a stone. The second time, she picked up a three-foot-long pipe and threatened to strike a witness. The third time, defendant walked onto the porch and slapped the victim twice on his face, knocking off his glasses and causing a small injury to the face. While defendant and the victim wrestled to the ground, she bit his forearm causing a bleeding bite mark. Officers responded to the incident and defendant was released from the scene. The fourth time, defendant again walked onto the porch and struck the victim on the head. Finally, the victim pepper sprayed defendant.

In case No. CM031250, defendant pled no contest to infliction of corporal injury on a cohabitant. (Pen. Code,*fn2 § 273.5, subd. (a).) In case No. CM031296, defendant pled no contest to willful failure to appear on a felony charge (§ 1320) and admitted that she was released on bail or her own recognizance in case No. CM031250 at the time of the offense (§ 12022.1). In exchange, a strike allegation (§§ 667, subds. (b)-(i), 1170.12) in case No. CM031250 was dismissed and defendant was promised no state prison at the outset.

Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 180 days of incarceration and completion of a batterer's treatment program. She was ordered to pay a $720 fine, a $300 battered women's shelter fee (§ 1203.097, subd. (a)(11)(A)), a $400 domestic violence program fee (§ 1203.097, subd. (a)(5)), a $400 restitution fine (§ 1202.4), a $400 restitution fine suspended unless probation is revoked (§ 1202.44), a $30 per conviction court security fee totaling $60 (§ 1465.8), and a $30 per conviction court facilities assessment totaling $60 (Gov. Code, § 70373).

Nine months later, a petition was filed alleging that defendant violated her probation by being terminated from her batterer's treatment program. Defendant admitted the allegation.

Defendant was sentenced to state prison for five years eight months, consisting of the middle term of three years for corporal injury, eight months consecutive for failure to appear, and two years for the enhancement. She was awarded 154 days' custody credit and 154 days' conduct credit.*fn3 The court confirmed the $400 restitution fine, lifted the stay on the probation revocation restitution fine, imposed a $400 restitution fine suspended ...


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