Filed 10/21/26 P. v. Johnson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B346553
(Super. Ct. No. 2020025806)
Plaintiff and Respondent, (Ventura County)
v.
JOSEPH LYNN JOHNSON,
Defendant and Appellant.
Joseph Lynn Johnson appeals the judgment entered after a
jury found him guilty of rape of a mentally disabled person in
violation of Penal Code section 261, subdivision (a)(1).1 Appellant
was sentenced to prison for the low term of three years.
We reject appellant’s contention that the trial court
erroneously failed to instruct the jury sua sponte on the lesser
included offense of battery. We remand the matter to the trial
court with directions to (1) recalculate a section 290.3,
1 Unless otherwise stated, all statutory references are to
the Penal Code.
subdivision (a) fine and penalty assessments, unless appellant
requests an ability to pay hearing and the court determines he is
unable to pay the fine; (2) prepare an amended abstract of
judgment specifying the amount of the fine as well as the amount
and statutory basis for each penalty assessment imposed; (3)
recalculate appellant’s presentence custody credits; and (4) strike
the name of the victim’s family member from a protective order
issued at the time of sentencing. In all other respects, we affirm.
Facts
Prosecution’s Evidence
J.B. was born in 1951. In 2018 she was diagnosed with
Alzheimer's disease and “a significant cognitive impairment.” A
doctor opined that in February 2020 J.B. appeared to display
“severe” symptoms of Alzheimer’s disease. However, she had
periods when she was “lucid.”
In February 2020 J.B. was living with her daughter,
Janilah J. (Janilah), who was 46 years old at the time of trial in
2025. Janilah and appellant were friends from high school.
Janilah testified that appellant “was aware of [her] mother's
condition and the struggles [Janilah] was going through taking
care of her.”
On February 3, 2020, appellant was staying with Janilah
and J.B for the weekend. Janilah entered J.B.’s bedroom and
saw J.B. lying on the bed. J.B. was not wearing pants. She was
wearing “[j]ust her top.” Appellant “was on top of her with his
pants down penetrating her.”
Janilah started “to scream and curse at [appellant].” “He
pulled up his pants really fast.” Janilah said: “[W]hat are you
doing? You need to get out. You need to leave.” J.B. protested,
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“[H]e’s my friend, he can stay.” Appellant “just took off” and “ran
out of the house.”
Later that day, “a sexual assault nurse examiner”
examined J.B. At the time of the examination, J.B. “was alert to
her name only.” “[S]he did not know what time it was or where
she was.” The nurse testified that J.B. had “burning to her
vaginal area with an abrasion to the perihymenal tissue.”
The nurse took three swabs from J.B.’s vaginal area.
Appellant’s sperm was detected on one of the swabs.
Appellant’s Testimony
Appellant testified: “[D]uring the couple weeks” before
February 3, 2020, J.B. “had repeatedly asked [him] to have sex
with her.” On February 3 appellant was asleep on the bed in the
downstairs bedroom in J.B.’s and Janilah’s house. “[He] woke up
with [J.B.] on top of [him].” Appellant was wearing a shirt and a
towel. J.B. was wearing only a top. “[J.B.] took her pants off and
jumped on top of [him].”
Appellant “pushed her off of [him].” J.B. said “she would
like to have sex with [appellant], and she would like to have sex
again before her mind goes away completely.” Appellant did not
attempt to have sex with her.
J.B.’s pants were on the floor in the downstairs bedroom.
Appellant grabbed her pants, put on his own pants, and guided
J.B. upstairs to her bedroom. Appellant “sat her down on her
bed” and “tried to put her pants back on.” At the same time,
appellant’s pants “were falling off of [his] body” because he “didn't
have a belt.”
Janilah “busted in the room” and “yelled at [appellant] to
get out.” “[J.B.] said he doesn't have to leave, he's not doing
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anything wrong, he’s my friend.” Appellant “walked back
downstairs and started gathering [his] things to leave.”
The prosecutor asked appellant: “Now according to you,
you never had sex with [J.B.]. So then why would your sperm be
inside her vagina?” Appellant replied, “I would guess that if
that's the case, it would be a touch DNA situation that was a
result of her jumping on top of me while I was asleep.”
Appellant testified that J.B. “had full mental awareness
[the] entire day” of February 3, 2020.
The Trial Court Did Not Have a Duty to Instruct
Sua Sponte on Battery as a Lesser Included Offense
Appellant contends, “The trial court prejudicially erred by
failing to instruct the jury [sua sponte] on battery as a lesser
included offense of the charged ‘rape of an incompetent person.’ ”
“A trial court has a sua sponte duty to ‘instruct on a lesser offense
necessarily included in the charged offense if there is substantial
evidence the defendant is guilty only of the lesser.’ [Citation.]
Substantial evidence in this context is evidence from which a
reasonable jury could conclude that the defendant committed the
lesser, but not the greater, offense.” (People v. Shockley (2013) 58
Cal.4th 400, 403.) “In deciding whether evidence is “substantial”
in this context, a court determines only its bare legal sufficiency,
not its weight.” (People v. Moye (2009) 47 Cal.4th 537, 556.)
The People note: they are “not aware of any published
decision which has addressed whether battery is a lesser included
offense of rape of a disabled person under section 261, subdivision
(a)[(1)]. However, there is currently a split of authority on this
question among California appellate courts as to whether battery
is a lesser included offense of analogous rape offenses.
[Citations.]” The People conclude, “[I]t appears that battery is a
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lesser included offense of rape of a disabled or incompetent
person.” (But see this court’s opinion in People v. Hernandez
(2011) 200 Cal.App.4th 1000, 1006 [“Simple battery is not a
lesser included offense of . . . rape of an unconscious person”];
contra, People v. Miranda (2021) 62 Cal.App.5th 162, 172-175;
People v. Mirabal (2025) 115 Cal.App.5th 708, 727-728
(Mirabal).)
We need not weigh in again on whether battery is a lesser
included offense of rape of a mentally disabled person.
Assuming, for purposes of discussion, that it is a lesser included
offense, the trial court did not have a duty to instruct sua sponte
on battery.
“A battery is ‘any willful and unlawful use of force or
violence upon the person of another.’ (§ 242.) ‘Even though the
statutory definition of battery requires “force or violence” . . . ,
this has the special legal meaning of a harmful or offensive
touching.’ [Citation.] The crime of battery is complete when
there is a single offensive or harmful touching.” (Mirabal, supra,
115 Cal.App.5th at p. 728.)
Appellant argues that the trial court erred in not
instructing sua sponte on battery because “there was sufficient
evidence to cast a doubt upon whether [he] knew or should have
known J.B. was legally incapable of consent at the moment of
their physical exchange.” The jury was instructed that the
People must prove that J.B. “had a mental disorder that
prevented her from legally consenting” to sexual intercourse and
that appellant “knew or reasonably should have known that” she
had such a mental disorder.
“We apply the independent or de novo standard of review to
the failure by the trial court to instruct on an assertedly lesser
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included offense.” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
The trial court did not have a duty to instruct sua sponte on
battery. Substantial evidence does not support appellant’s theory
that he committed merely a battery, i.e., a harmful or offensive
touching. Appellant testified that J.B. had enthusiastically
initiated the sexual encounter without his consent. He was
asleep when “[J.B.] took her pants off and jumped on top of
[him].” Instead of having sexual intercourse with J.B., appellant
“pushed her off of [him].” Thus, if a battery was committed, it
was committed by J.B., not appellant.
“Generally, when a defendant completely denies complicity
in the charged crime, there is no error in failing to instruct on a
lesser included offense.” (People v. Gutierrez (2003) 112
Cal.App.4th 704, 709.) “This was a case where . . . appellant[], if
he was guilty at all, was guilty of the greater offense of [rape of a
mentally disabled person] and not of the lesser included offense of
[battery]. Thus, the trial court did not err in failing to instruct
the jury sua sponte on the lesser included offense . . . .” (People v.
Guillen (2014) 227 Cal.App.4th 934, 1028.)
The Matter Must Be Remanded to the Trial Court for
Recalculation of the § 290.3(a) Fine and Penalty Assessments
The reporter’s transcript of the sentencing hearing shows
that the trial court imposed a restitution fine of $1,000 (§ 1202.4,
subd. (b)) and “the $3,200 penalty assessment.” The court did not
explain how this penalty assessment had been calculated. A
restitution fine is not subject to penalty assessments. (§ 1202.4,
subd. (e).) The probation report recommended that, “[p]ursuant
to [s]ection 290.3 . . . , [appellant] be ordered to pay a fine of
$3,200 including penalty assessment.” The probation report did
not explain how the figure of $3,200 had been reached. The
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court’s minutes show a restitution fine of $1,000 and “a fine of
$3,200 pursuant to Section 290.3.” The abstract of judgment
states that appellant shall pay a “$3200 fine pursuant to PC
290.3.”
Pursuant to section 290.3, subdivision (a) the maximum
fine was $300 because this was appellant’s first conviction of an
offense specified in section 290, subdivision (c).2 Appellant
contends that, on the $300 fine, the maximum penalty
assessments totaled $930. (See People v. Johnson (2015) 234
Cal.App.4th 1432, 1458 (Johnson) [“the penalty assessments [on
a $300 fine imposed pursuant to section 290.3, subdivision (a)]
should have totaled $930”].)3
2 Section 290.3, subdivision (a) provides, “Every person who
is convicted of any offense specified in subdivision (c) of Section
290 shall, in addition to any imprisonment or fine, or both,
imposed for commission of the underlying offense, be punished by
a fine of three hundred dollars ($300) upon the first conviction or
a fine of five hundred dollars ($500) upon the second and each
subsequent conviction, unless the court determines that the
defendant does not have the ability to pay the fine.”
3 Johnson noted: “In People v. Hamed (2013) 221
Cal.App.4th 928, . . . the court explained the penalty assessments
applicable to a $300 base fine under section 290.3 . . . : ‘(1) a 100
percent state penalty assessment (§ 1464, subd. (a)(1)) equal to
$300; (2) a 70 percent additional penalty (Gov.Code, § 76000,
subd. (a)(1)) equal to $210; (3) a 20 percent state surcharge (§
1465.7) equal to $60; (4) a 50 percent state court construction
penalty (Gov.Code, § 70372) equal to $150; (5) a 20 percent
additional penalty for emergency medical services (Gov. Code, §
76000.5) equal to $60; (6) a 10 percent additional DNA penalty
(Gov.Code, § 76104.6, subd. (a)(1)) equal to $30; and (7) a 30
percent additional state-only DNA penalty (Gov. Code, former §
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“The abstract of judgment should detail the amounts of and
statutory basis for the base fine and each of the penalty
assessments imposed.” (Johnson, supra, 234 Cal.App.4th at p.
1459.) “Although we recognize that a detailed recitation of all the
fees, fines and penalties on the record may be tedious, California
law does not authorize shortcuts. All fines and fees must be set
forth in the abstract of judgment. [Citations.] . . . If the abstract
does not specify the amount of each fine, the Department of
Corrections [and Rehabilitation] cannot fulfill its statutory duty
to collect and forward deductions from prisoner wages to the
appropriate agency.” (People v. High (2004) 119 Cal.App.4th
1192, 1200.)
Accordingly, the matter must be remanded to the trial
court for recalculation of the section 290.3, subdivision (a) fine
and penalty assessments. In his opening brief appellant contends
he is entitled to be personally present when the court performs
the recalculation so “he may object to any order imposed . . .
and/or challenge any authorized amount based on an inability to
pay.” The People’s brief does not consider the merits of this
contention.4
76104.7) equal to $90.’ [Citation.] The only difference in this
case is that state-only DNA penalty under Government Code
section 76104.7, subdivision (a), has increased to 40 percent,
equaling $120, instead of $90.” (Johnson, supra, 234 Cal.App.4th
at pp. 1457-1458.)
4 The People state, “Because the abstract of judgment does
not itemize appellant’s fines and penalty assessments,
respondent agrees that the basis for the assessments is unclear.
Therefore, a limited remand permitting the court to clarify this
point is appropriate.”
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Section 290.3, subdivision (a) provides that the fine shall be
imposed “unless the court determines that the defendant does not
have the ability to pay the fine.” The determination should be
made “ ‘in light of his total financial obligations,’ which includes
the total amount of fines and assessments . . . .” (Johnson, supra,
234 Cal.App.4th at p. 1459.)
In the trial court defense counsel objected that appellant
“does not have ability to pay the fines currently during
incarceration.” The trial court erroneously responded: “The one
[§ 290.3, subd. (a)] is mandatory. I reduced the other [restitution
fine] as much as I can.”5 We therefore agree with appellant that,
on remand, he is entitled to be personally present so he will have
the opportunity to object to the section 290.3, subdivision (a) fine
based on his inability to pay.
Presentence Custody Credits
“ ‘[A] sentencing court must award credits for all days in
custody up to and including the day of sentencing.’
[Citations.] . . . In addition to actual credit, which accumulates
from time spent in custody, detainees in local institutions are
usually able to earn credit against their eventual sentence for
5 The court said, “The Restitution Fund fine I'm reducing
from $10,000 to $1,000 because if there is going to be restitution
I'd rather see that go to the victims. It's only imposed if the
defendant is unsuccessful in completing parole.” Section 1202.4,
subdivision (c) provides, “A defendant’s inability to pay shall not
be considered a compelling and extraordinary reason not to
impose a restitution fine. Inability to pay may be considered only
in increasing the amount of the restitution fine in excess of the
minimum fine [$300] pursuant to paragraph (1) of subdivision
(b).”
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good behavior and work performed.” (People v. Crenshaw (2025)
116 Cal.App.5th 1169, 1181.)
The trial court determined that appellant was entitled to
presentence custody credits totaling 530 days: 265 days of actual
custody credit and 265 days of conduct credit. The parties agree
that appellant was entitled to 267 days of actual custody credit.
Appellant claims he was also “entitled to 533 total custody
credits.” The parties agree that, on remand, the trial court
should recalculate the presentence custody credits. We will
direct the trial court to do so.
Protective Order
At the time of sentencing, the trial court issued a protective
order directing appellant to not contact J.B. or her daughter,
M.W. A protective order was not issued as to appellant’s other
daughter, Janilah, who had witnessed the crime committed
against J.B. Appellant contends, and the People concede, that
M.W.’s name must be removed from the protective order.
Appellant did not object to the no-contact order. “As a
general rule, an appellant waives issues on appeal that he or she
did not initially raise in the trial court. [Citation.] But there are
exceptions to this rule for unauthorized sentences and sentencing
decisions that are in excess of the trial court's jurisdiction.
[Citation.] Because this case involves the jurisdictional validity
of the trial court's decision to issue a . . . protective order during
sentencing, we will consider [appellant’s] claim on the merits.”
(People v. Ponce (2009) 173 Cal.App.4th 378, 381-382.)
Section 136.2 covers protective orders. Section 136.2,
subdivision (i)(1) provides that, if a defendant has been convicted
of rape of a mentally disabled person, “the court, at the time of
sentencing, shall consider issuing an order restraining the
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defendant from any contact with a victim of the crime.” M.W.
was not a victim of the rape.
Section 136.2, subdivision (i)(2), authorizes the issuance of
“an order restraining the defendant from any contact with a
percipient witness to the crime if it can be established by clear
and convincing evidence that the witness has been harassed . . .
by the defendant.” M.W. was not a percipient witness of
appellant’s rape. The only percipient witness was Janilah.
Accordingly, we will direct the trial court to strike M.W.’s
name from the protective order.
Disposition
The matter is remanded to the trial court with directions to
recalculate the section 290.3, subdivision (a) fine and penalty
assessments, unless appellant requests an ability to pay hearing
and the court determines he is unable to pay the fine. The trial
court shall prepare an amended abstract of judgment specifying
the amount of the fine as well as the amount and statutory basis
for each penalty assessment imposed. The trial court is further
directed to recalculate appellant’s presentence custody credits
and to strike M.W.’s name from the protective order issued at the
time of sentencing. In all other respects, the judgment is
affirmed. The trial court shall forward a certified copy of the
amended abstract of judgment to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
CODY, P. J. BALTODANO, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Snr.
Assistant Attorney General, Nicholas J. Webster, Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.