P. v. Johnson















Filed 9/14/10 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. CARLOS JOHNSON, Defendant and Appellant.

C060778 (Super. Ct. No. 05F10938)

Defendant Carlos
Johnson engaged in a crime spree from October
28, 2005, to December 14,
2005. As a result, he was
convicted of 30 counts of second degree
robbery, four counts of attempted second degree robbery, six counts of
assault with a firearm, one count of being a felon in possession of a firearm, one count of misdemeanor
resisting arrest and one count of receiving stolen property. The jury also found defendant was personally
armed with a firearm in the commission of five of the offenses and personally
used a firearm in 35 of the counts. In
bifurcated proceedings, the court also found defendant had three prior strike
convictions. Defendant appeals his
conviction for one of the counts of assault with a firearm, claiming there is
insufficient evidence to support the conviction. He also claims various errors in the
sentencing and the abstract of judgment.
Finding there is substantial evidence to support the conviction, we
affirm. As to the sentencing and
abstract errors, the People properly concede and we vacate the sentence and
remand the matter for resentencing.

FACTUAL
BACKGROUND[1]

Late at night on October 28, 2005, Rick Sarai and his
wife were using hotel computers in the lobby of the Fairfield Inn. They saw two men, defendant and Carl
Burnside, walk into the hotel wearing masks.
One of the men grabbed a woman standing near the front desk and put a
handgun to her neck. She started
screaming. Defendant then pointed the
gun at Roddy Earl, the hotel desk clerk, and demanded money. Earl handed over the hotel's cash box,
containing $120, and asked defendant not to shoot him.

Defendant then
instructed Burnside to rob the Sarais and take their valuables. Burnside walked over to Mrs. Sarai and
tried to take her purse. He also told
Mr. Sarai to give him everything. The
Sarais did not comply and Burnside yelled out to defendant. Defendant walked over to Mr. Sarai, pointed
the gun at his face and demanded Mr. Sarai to give defendant everything he
had. Mr. Sarai told defendant he had given
everything, and defendant and Burnside ran out of the hotel, taking Mrs. Sarai's
purse with them.

Mr. Sarai followed
the men as they ran to their waiting car and watched them drive off. Defendant leaned out the window of the front
passenger side and pointed his gun at Mr. Sarai. At that point, Mr. Sarai went back inside the
hotel. Defendant had been holding the
gun sideways, â€