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People v. Wilford

California Court of Appeals, Fourth District, First Division

June 12, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOHNNY JEROME WILFORD, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from a judgment of the Superior Court of San Diego County No. SCD261253, Joseph P. Brannigan, Judge. Affirmed in part; reversed in part; remanded with directions.

          Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

          HUFFMAN, Acting P. J.

         A jury convicted Johnny Jerome Wilford of assault by means likely to produce great bodily injury (Pen. Code, [1" name="ftn.FN1" id="ftn.FN1">1] § 245, subd. (a)(4); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), resisting an officer (§ 148, subd. (a)(1); count 4), and two counts of corporal injury to a cohabitant (§ 273.5, subd. (a); counts 5, 6).[2] The jury also found true the allegations that Wilford: (1) inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a) and section 1192.7, subdivision (c)(8) as to count 1; (2) inflicted great bodily injury on the victim within the meaning of section 1192.7, subdivision (c)(8) as to count 2; and (3) was out on parole at the time he committed counts 1 and 2 (§ 1203.085, subd. (b)).

         The trial court found, as to counts 5 and 6, Wilford suffered a prior assault conviction within seven years of the current offenses within the meaning of section 273.5, subdivision (h)(1). The court also found that Wilford suffered a prior strike (§§ 667, subd. (b)-(i), 1170.12), a serious felony conviction (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (b)).

         The court sentenced Wilford to prison for 22 years, consisting of four years for count 1, doubled to eight years for his prior strike, plus three years for the great bodily enhancement; one year four months, doubled to two years eight months based on his prior strike for counts 5 and 6; five years for the serious felony prior conviction; and eight months for the probation violation. The court stayed Wilford's sentence under count 2 and for the prison prior. In addition, the court sentenced Wilford to time served for count 4.

         Wilford appeals, contending his conviction for count 1 should be reversed because the trial court prejudicially erred in answering the jury's question regarding lesser included offenses and his sentence for counts 5 and 6 violated due process. We find that the court's error in responding to the jury's question regarding count 1 was harmless. However, we conclude that Wilford's challenge to his sentence for counts 5 and 6 is well taken. We therefore reverse his sentence on those two counts and remand this matter to the superior court for resentencing as to those two counts only, consistent with this opinion.

         FACTUAL BACKGROUND

         Prosecution

         In the summer of 2014, Wilford began dating Dulce Amaya. At the time, Amaya was still living with and in a relationship with Rodrigo Osorio, the father of her youngest daughter. Once Osorio discovered Wilford and Amaya were dating, he ended the relationship with Amaya and moved out of her house three months later. Soon after Osorio moved out, Wilford moved in with Amaya, her two daughters, her nine-year-old brother, her roommate Latasha Haines, Osorio's niece Estela, Estela's mother, and Estela's three siblings. Estela regularly babysat Amaya's daughters. Wilford kept his belongings in the basement, but he slept upstairs with Amaya. Amaya's mother lived at the house on the weekends.

         Osorio would come to the house to see his daughter. On one occasion, Osorio refused to leave the house and grabbed onto Amaya's jacket. Amaya called the police who came to escort Osorio out. Wilford came home and saw the police were there. Osorio saw Wilford and told the police Wilford did drugs and was on probation. Amaya believed her relationship with Wilford changed when he got frustrated with her for not getting a restraining order against Osorio. After that, Wilford became violent toward her. For example, when Amaya told Wilford she was going to leave him, he pushed her onto the bed. On another occasion, Wilford kicked Amaya's front door from the outside so hard that the door would no longer close. Although the police came out to investigate, Wilford and Amaya told the police that nothing happened.

         On another occasion, Wilford pushed Amaya onto the coffee table causing her leg to bruise. He forced her into his van and drove her to his grandfather's house against her will. After one of Wilford's friends showed up at the house, Amaya asked the friend to convince Wilford to release her. However, Wilford would not let her go. Later, Amaya took photos of her injuries and Wilford asked her to delete them. When she and Wilford fought, Amaya often would kick him out of the house, but eventually, she would forgive him and he would return.

         One night in November 2014, Amaya and Wilford were play fighting and wrestling. Wilford got too rough and she could not get him off her. She grabbed a pan and hit him to get him off her. In response, he pulled her hair, which hurt her neck. She asked him to stop, but he kept pulling her hair. He also bit her neck. They fought from the kitchen to the dining room to the living room. They finally stopped fighting and went outside to smoke a cigarette.

         While outside, Amaya told Wilford she was upset. Wilford grabbed her by the neck with both hands and squeezed to where she could not breathe. She got free and went to the side of the house. He followed and grabbed her by the hair. Wilford said, "Do you want me to treat you like all the other bitches?" He dragged her by her hair and arms into the basement. The basement entrance was outside and not accessible from inside the house.

         Once in the basement, he told her he was sorry. She told him she wanted to leave, but he blocked her from leaving. Amaya was afraid she would die and concerned about who would care for her children. She agreed to have sex with Wilford to calm him down. Amaya did not call the police.

         The next morning while they were leaving for work, Amaya told Wilford that he had to move out. Wilford became angry, but went to work. Later that night, when they got home, Wilford told her he needed her support. She told him to leave. He put his hand over her mouth and dragged her across the room by her hair. Amaya yelled for her roommate who called the police.

         By the time the police arrived, Wilford had left. Amaya told the police that a man named Johnny Fluker had choked her, locked her in the basement, covered her mouth, and dragged her by her hair across the room. She told the police he had grabbed her by the throat and asked her, "Do you want me to treat you like all those other bitches?" She lied to the police about Wilford's last name because she did not want Wilford to get in trouble. She was terrified of what Wilford would do to her. Wilford had told her that if she called the police, he would call child protective services (CPS) to complain about her. Amaya had bruises around her neck, on her inner and outer arm, and bite marks on her neck from Wilford assaulting her.

         A few weeks later, Amaya, Osorio, and her children spent Thanksgiving with her family in Los Angeles. When she returned from Los Angeles, Wilford apologized and said he would never hurt her again. Amaya forgave Wilford and they resumed their romantic relationship. She believed he would change. She also blamed herself for what had happened.

         On January 22, 2015, Amaya had a garage sale at her house with Vonnie Galligher and Galligher's boyfriend Bishop Slingerland. After the garage sale, Wilford, Galligher, Slingerland, and Amaya cooked, drank beer, talked, and played music. After the children went to bed, the adults sat in the front of the house. Amaya wanted to listen to some music and picked a song. Wilford did not want to hear the song. Nevertheless, Amaya played the song and Wilford became angry. He walked to the back of the house and asked her to follow him. She followed him asking why he was mad. They argued loudly. Then the altercation became physical. Amaya slapped Wilford. Wilford slapped her back, shoved her to the ground, and kicked her several times in the side.

         Slingerland walked to the side of the house and saw Wilford kicking Amaya. Wilford told Slingerland, "You need to back off." Wilford grabbed Slingerland's shirt and lifted him up. Wilford told him, "Don't get in it" or he would kill him. Slingerland walked back to the front of the house. He was holding his forehead, which bore a red mark. Slingerland told Galligher they were leaving.

         Amaya got up and ran back to the front of the house. Wilford said, "Oh, you think you're going to get off that easy?" He ran at Amaya and hit her in the face. Wilford tackled Amaya, and she hit a metal fence. He threw her to the ground by her throat and kicked her side several times.

         Amaya screamed at Galligher to call the police, but Galligher's phone was dead. Amaya ran into her house, grabbed her four-year-old daughter and ran across the street because her phone also was dead. She stopped a man in a car and asked him to call the police. He refused. Slingerland drove Wilford away.

         Amaya went back into her house. She sent Osorio a Facebook message asking him to come to her house because Wilford had beaten her up. Haines came home and Amaya used Haines's phone to call 9-1-1. Amaya told the operator that her ex-boyfriend had hit and kicked her again. She said she was scared and that her three children were with her. She said he had been violent in the past. She said she was scared he was going to kill her. While talking with the 9-1-1 operator, she told Haines that she should have listened to her when she told her in the past to leave Wilford because he was going ...


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