Filed 6/30/16 P. v. Johnson CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B259882

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA055727)
         v.

TIMOTHY JERODE JOHNSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard, Judge. Affirmed as modified.


         David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General,
for Plaintiff and Respondent.
                                                       ******
          Timothy Jerode Johnson (defendant) was convicted of murder and two counts of
robbery, and sentenced to two terms of life without possibility of parole. On appeal, he
argues that the trial court erred in giving CALJIC No. 2.11.5, in doubling his sentence of
life without possibility of parole under the Three Strikes law (Pen. Code, §§ 667,
subds. (b)-(j) & 1170.12, subds. (a)-(d))1, in imposing a parole revocation fine, and in
noting on the abstract of judgment that the stayed sentences for the robbery counts were
to run consecutively. Defendant’s last two arguments have merit; his first two do not.
We accordingly affirm his conviction and sentence, but order that the judgment be
modified to correct errors in the abstract of judgment.
                      FACTS AND PROCEDURAL BACKGROUND
I.        Facts
          In March 2012, defendant’s girlfriend drove him to a strip mall in Lancaster,
California, so he could rob a computer store in that mall. She was to be his getaway
driver.
          As she waited in the parking lot, defendant entered a computer store called E-
Chaps. When he entered the store, he pulled a ski mask down over his face and trained a
gun on the store’s owner and one of the owner’s friends. He announced, “This is a
robbery” and ordered both men to the floor. The friend complied; the store owner argued
with defendant. Defendant warned that he would shoot the owner if he did not drop to
the floor. When the owner still did not comply, defendant shot him twice; said, “You
didn’t think I’d shoot you, did you?”; and shot him two more times. Defendant took the
friend’s car keys and cell phone, and told him, “Now I have to kill you, too. I can’t leave
a witness.” However, while defendant was busy placing laptop computers into his
backpack and suitcase, the friend dashed for the front door and got away.
          Defendant ran back to his girlfriend’s waiting car, and yelled for her to “drive.”
They sped away.




1         All further statutory references are to the Penal Code unless otherwise indicated.

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        One of the patrons of a nearby Denny’s restaurant took down the license plate
number of the girlfriend’s car. Police stopped her car within hours, and she admitted she
was with defendant but claimed not to know about the robbery beforehand. A search of
defendant’s house turned up a wallet containing items in the name of the store owner,
nine laptop computers with E-Chaps work orders, and a pair of shoes with bloodstains.
Before defendant was arrested, he and an ex-girlfriend saw a television news report about
the robbery and seeking his whereabouts; defendant told her he had “messed up” and
“didn’t mean to.”
        The store owner died from his gunshot wounds.
II.     Procedural Background
        The People charged defendant and his girlfriend with (1) murder of the store
owner (§ 187, subd. (a)), (2) robbery of the store owner (§ 211), and (3) robbery of the
friend (ibid.). The People further alleged that the murder warranted a sentence of death
or life without possibility of parole because it occurred during a robbery (§ 190.2,
subd. (a)(17)). As to defendant, the People also alleged that he personally and
intentionally discharged a firearm (§ 12022.53, subd. (d)), and that his 2008 robbery
conviction was a prior “strike” within the meaning of the Three Strikes law and that he
served a prior prison term for that conviction (§ 667.5, subd. (b)).
        The girlfriend pled to a single count of voluntary manslaughter and was sentenced
to 21 years in state prison.
        Defendant proceeded to trial. At trial, the girlfriend testified for the People,
discussed her plea bargain, and was cross-examined on how that bargain resulted in a
sentence substantially better than the sentence of life without possibility of parole she
was initially facing. Defendant testified that the girlfriend and another man named “D”
came to him the day of the robbery and asked him to hold stolen laptop computers. The
jury convicted defendant of all counts and found the firearm enhancement true.
Defendant waived his right to a jury trial on his prior conviction, and the trial court found
it to be true.



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       The trial court imposed a sentence of life without possibility of parole on the
murder count and doubled it under the Three Strikes law. The court also imposed a 35-
year sentence on each robbery count—10 years for the robbery (that is, five years
doubled due to the prior strike) plus 25 years for personal discharge of a firearm. The
court stayed each robbery sentence under section 654 and did not orally state whether
those sentences were to run consecutively or concurrently to the murder sentence.
       Defendant timely filed an appeal.
                                        DISCUSSION
I.     Instructional Error
       The trial court instructed the jury that defendant’s girlfriend was an accomplice
“as a matter of law,” and further instructed the jury that an accomplice’s testimony must
be “corroborated by other evidence” and “should be viewed with caution” The court
further instructed the jurors, as set forth in CALJIC No. 2.20, that they “are the sole
judges of the believability of a witness,” and that “[i]n determining the believability of a
witness, [they] may consider anything that has a tendency reasonably to prove or
disprove the truthfulness of the testimony of the witness, including . . . [¶] . . . [¶] [t]he
existence or nonexistence of a bias, interest, or other motive.” The trial court also gave
CALJIC No. 2.11.5: “There has been evidence in this case indicating that a person other
than a defendant was or may have been involved in the crime for which that defendant is
on trial. There may be many reasons why that person is not here on trial. Therefore, do
not speculate or guess as to why the other person is not being prosecuted in this trial or
whether she has been or will be prosecuted. Your sole duty is to decide whether the
People have proved the guilt of the defendant on trial.”
       Defendant argues that his girlfriend was the only other person who “may have
been involved in the [charged] crime[s],” and that CALJIC No. 2.11.5’s command “not
[to] speculate or guess as to why [she] is not being prosecuted in this trial or whether she
has been or will be prosecuted” effectively precluded the jury, in assessing her
believability, from considering how she might be biased or interested to lie for the



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prosecution. Because this argument raises a question of instructional error, our review is
de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378 (Fiore).)
       The argument defendant raises—that CALJIC No. 2.11.5 somehow negates part of
the general credibility instruction set forth in CALJIC No. 2.20—has been rejected time
and again by our Supreme Court: “‘The purpose of [CALJIC No. 2.11.5] is to discourage
the jury from irrelevant speculation about the prosecution’s reason for not jointly
prosecuting all those shown by the evidence to have participated in the perpetration of the
charged offenses, and also to discourage speculation about the eventual fates of unjoined
perpetrators. [Citation.] When the instruction is given with the full panoply of witness
credibility and accomplice instructions . . . a reasonable juror will understand that
although the separate prosecution or nonprosecution of coparticipants, and the reasons
therefor, may not be considered [on] the issue of the charged defendant’s guilt, a plea
bargain or grant of immunity may be considered as evidence of interest or bias in
assessing the credibility of prosecution witnesses. Although [CALJIC No. 2.11.5] should
have been clarified or omitted [citations], we cannot agree that giving it amounted to
error.’” (People v. O’Malley (2016) 62 Cal.4th 944, 986, quoting People v. Price (1991)
1 Cal.4th 324, 446; see also People v. Valdez (2012) 55 Cal.4th 82, 148-149; People
v. Brasure (2008) 42 Cal.4th 1037, 1055; People v. Lawley (2002) 27 Cal.4th 102, 162-
163; People v. Cain (1995) 10 Cal.4th 1, 34-35.) More to the point, giving CALJIC No.
2.11.5 is not error even where, as here, the instruction refers to an accomplice witness
who has entered into a plea agreement and is testifying for the People. (People v. Sully
(1991) 53 Cal.3d 1195, 1218-1219; People v. Belmontes (1988) 45 Cal.3d 744, 782-783,
overruled on other grounds by People v. Cortez (2016) 63 Cal.4th 101.)
       Defendant points out that some of the cases have declared that giving CALJIC
No. 2.11.5 as to a testifying witness is “error.” (People v. Carrera (1989) 49 Cal.3d 291,
312-313; People v. Williams (1988) 45 Cal.3d 1268, 1313; People v. Williams (1997)
16 Cal.4th 153, 226-227.) Each of these cases is arguably distinguishable because they
reviewed an earlier version of CALJIC No. 2.11.5. That earlier version told jurors “not
[to] discuss or give any consideration as to why the other person is not being prosecuted

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in this trial or whether he or she has been or will be prosecuted” (Carrera, at p. 312, fn. 9,
italics added); the current version tells jurors “not [to] speculate or guess as to why the
other person is not being prosecuted in this trial or whether [he or she] has been or will be
prosecuted” (CALJIC No. 2.11.5, italics added). At least one court has found the current
instruction “only to prohibit idle speculation, not to prevent consideration of pertinent
evidence.” (People v. Fonseca (2003) 105 Cal.App.4th 543, 550.) But even if we
overlooked the change in the instruction’s language, none of the cases defendant cites
found the instructional error to be prejudicial—either under People v. Watson (1956)
46 Cal.2d 818, 836 or Chapman v. California (1967) 386 U.S. 18, 24. (Carrera, at
pp. 312-313; Williams, supra, 45 Cal.3d at p. 1313; Williams, supra, 16 Cal.4th at
pp. 226-227; see also Fonseca, at p. 549 [“the Supreme Court has held that, in every case
where the jury receives all otherwise appropriate general instructions regarding witness
credibility, there can be no prejudice from jury instruction pursuant to CALJIC
No. 2.11.5”].)
II.    Sentencing Errors
       A.      Doubling the life without possibility of parole sentence
       Under the Three Strikes law (law), a court is to double the sentence otherwise
mandated for a “serious” or “violent” felony if it is a defendant’s second such conviction.
(§§ 667, subd. (e)(1) & 1170.12, subd. (c)(1).) Specifically, the law provides: “If a
defendant has one prior serious and/or violent felony conviction . . . that has been pled
and proved, the determinate term or minimum term for an indeterminate term shall be
twice the term otherwise provided as punishment for the current felony conviction.”
(Ibid., italics added.)
       How does this doubling provision apply when the “term otherwise provided as
punishment” is life without possibility of parole (LWOP)? This is a question of statutory
interpretation, and thus one we review de novo. (Fiore, supra, 227 Cal.App.4th at
p. 1378.)
       Our Supreme Court has applied this provision to sentences of life with the
possibility of parole, holding that the “minimum term for an indeterminate term” in that

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context is the minimum parole term—not the minimum term of “life.” (People v.
Jefferson (1999) 21 Cal.4th 86, 93-99.) This precedent is not directly applicable where,
as here, the sentence is life without the possibility of parole because there is no minimum
parole term.
       There is an interpretive void, and the Court of Appeal has divided over how to fill
it. In People v. Hardy (1999) 73 Cal.App.4th 1429 (Hardy), this Division of the Second
District held that the law did not “expressly describe[] how a second strike defendant is to
be sentenced if the current offense is one for which a defendant with no prior strike
would receive a sentence of life without possibility of parole,” but held that the “stated
purpose” of the law as well as section 669—which contemplates the imposition of
multiple, consecutive LWOP sentences—meant that the law also requires that LWOP
sentences be doubled. (Id. at pp. 1433-1434.) Two other Districts have subsequently
disagreed. (People v. Smithson (2000) 79 Cal.App.4th 480 (Smithson); People v. Mason
(2014) 232 Cal.App.4th 355 (Mason).) Smithson agreed with Hardy that the law does not
speak to what to do with an LWOP sentence because such a sentence “is an indeterminate
sentence without a minimum term,” but reasoned that this omission was intentional and
that Hardy constitutes an unwarranted extension of the law. (Smithson, at pp. 503-504.)
Mason recognized that “life” was the “effective minimum” of any LWOP sentence, but
reasoned that the law only requires the doubling (or, in Mason’s case, tripling) of a
minimum parole term. (Mason, at pp. 367-368; see also People v. Coyle
(2009) 178 Cal.App.4th 209, 219 [reaching same result, with respect to tripling].)
       Defendant urges us to reject our prior decision in Hardy and instead to follow
Smithson and Mason. To be sure, Smithson and Mason have some persuasive force. But
Hardy is the law of this Division. Under “[t]he doctrine of stare decisis . . .[,] a court
usually should follow prior judicial precedent even if the current court might have
decided the issue differently if it had been the first to consider it,” especially when “the
issue is one of statutory construction.” (Bourhis v. Lord (2013) 56 Cal.4th 320, 327.)
Although we can depart from prior precedent “for good reason” (ibid.), we are not



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persuaded that Smithson’s and Mason’s rationales cast enough doubt on Hardy’s
reasoning that we are faced with a sufficiently good reason to abandon Hardy.
       We accordingly adhere to Hardy, and reject defendant’s challenge because the
trial court followed Hardy.
       B.     Parole revocation fine
       As a general rule, a trial court must impose a $10,000 parole revocation fine at the
time of sentencing. (§ 1202.45, subd. (a).) However, that rule does not apply where
parole is an impossibility because the defendant has been sentenced to life without the
possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182.) As a
result, the parole revocation fine imposed in this case must be vacated.
       C.     Consecutive stayed sentences
       If a trial court does not determine whether a defendant’s sentence on subsequent
offenses is to run concurrently or consecutively, the sentences are presumed to run
concurrently. (§ 669, subd. (b); People v. Downey (2000) 82 Cal.App.4th 899, 915.) In
this case, the trial court did not in its oral pronouncement state whether the two robbery
sentences were to run consecutively or concurrently either to the murder sentence or to
each other. As a result, they are deemed to run concurrently and the abstract of
judgment, which states that consecutive terms were imposed, must be corrected.




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                                      DISPOSITION
       The judgment is ordered modified by vacating the parole revocation fine and
imposing concurrent rather than consecutive sentences for the two robbery counts. The
clerk of the superior court is directed to forward a certified copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                         _______________________, J.
                                                         HOFFSTADT
We concur:


________________________, P.J.
BOREN


________________________, J.
ASHMANN-GERST




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