P. v. Johnson
Keith Lamar Johnson appeals from the judgment entered following his conviction by a jury on one count of attempted voluntary manslaughter, a lesser included offense of the charged crime of attempted murder (Pen. Code, 664, 192, subd. (a)),[1]and one count of assault with a firearm ( 245, subd. (a)(2)) with special findings by the jury he was armed with and personally used a firearm in committing both offenses ( 12022, subd. (a)(1), 12022.5, subds. (a), (d)) and had personally inflicted great bodily injury on a person other than an accomplice during the assault ( 12022.7, subd. (a)). Johnson argues the trial court improperly imposed a three-year enhancement for inflicting great bodily injury on the assault count because the People failed to allege the enhancement in its accusatory pleading. He also argues the trial courts imposition of upper term sentences based on its own factual findings concerning aggravating circumstances violated his right to a jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Because Court conclude the trial court used an improper aggravating circumstance to select the upper terms, Court remand for resentencing without reaching the constitutional issue raised. In all other respects, Court affirm.
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