California Court of Appeals, Fourth District, First Division
FOR PARTIAL PUBLICATION[*]
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.
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.
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). 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)).
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)).
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.
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.
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.
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.
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
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.
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.
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.
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
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
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.
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.
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.
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.
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
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 ...