P. v. Johnson

Filed 5/17/06 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

Appellant Lamont Sterling Johnson appeals from the judgment entered following a jury trial that resulted in his conviction for first degree murder (Pen. Code, § 187^[1]) and robbery (§ 211). The jury also found that he was armed with a .40-caliber handgun during the commission of both offenses (§ 12022, subd. (a)(1)), and that he committed the murder during the commission of the robbery (§ 190.2, subd. (a)(17)). Appellant was sentenced to a total determinate prison term of four years^[2] and a consecutive indeterminate term of life without possibility of parole plus one year for the arming enhancement.

This appeal is voluminous and appellant claims error at virtually every stage of the proceedings. His principal claims of error are that: 1) the suppression and destruction of exculpatory evidence required dismissal of the charges against him; 2) the court erred in admitting expert testimony on gangs; 3) the court improperly allowed the prosecution to impeach appellant with evidence of an escape attempt that lacked probative value and was highly prejudicial; 4) the prosecutor rendered his trial fundamentally unfair by taking opposite positions on the credibility of a prosecution witness at appellant's trial and at his codefendant's separate trial; 5) the court improperly overruled defense objection to the prosecutor's misstatement of the law as to special circumstance murder in closing argument; and 6) consecutive sentencing was inappropriate for the robbery and gun use.

We hold that section 654, as applied here, prohibited separate sentences for both the special circumstance murder committed during the course of a robbery and the robbery, plus corresponding arming enhancements. We will, therefore, stay the sentence for the robbery and the firearm use enhancement, which we can correct by modifying the judgment. We find no other prejudicial error; accordingly, we affirm the judgment as modified.

II.

Facts and Procedural History

The issues raised on appeal do not require a detailed recitation of the facts. Viewed in the light most favorable to judgment (People v. Bradford (1997) 15 Cal.4th 1229, 1329), the evidence established the following.

On May 28, 1996, at approximately 4:20 p.m., Roy Loewenfels, an East Bay Municipal Utility District ranger, was on duty at a trailhead at the Bear Creek staging area, several miles north of Lafayette. While parked in one of the lots, Loewenfels heard six to eight gunshots and then saw two men coming into the parking lot from the trail area. Loewenfels described the men as â€