Filed 11/9/15 P. v. Johnson CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B259279

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. KA105512)
         v.

WILLIE EDDIE JOHNSON JR.,

         Defendant and Respondent.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Douglas Sortino, Judge. Affirmed.


                   Jackie Lacey, District Attorney, Roberta Schwartz and Felicia N. Shu,
Deputy District Attorneys, for Plaintiff and Appellant.


                   Ronald L. Brown, Public Defender, Albert J. Menaster, Veronica Verdugo
and Nicole M. Campbell, Deputy Public Defenders, for Defendant and Respondent.


                                           ______________________
                                     INTRODUCTION


       A jury convicted Willie Eddie Johnson Jr. of assault by means of force likely to
produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)), a felony, and found true the
special allegation that he had inflicted great bodily injury on a victim 70 years or older
(§ 12022.7, subd. (c)). The trial court granted Johnson’s motion at sentencing to reduce
the felony conviction to a misdemeanor. The People argue the trial court abused its
discretion. We affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


       A.     The Crime
       Fouad Mokdad solicited a prostitute, Ziporiah Jenkins, to perform oral sex in his
car. After Jenkins had performed this service, Mokdad refused to pay her the $20 he had
agreed to pay. Mokdad then drove to a convenience store parking lot and parked in a
space facing away from the store and next to another car on the driver’s side. Jenkins
demanded her money, and the two of them argued in the front seat of the car. Jenkins
stated in her preliminary hearing testimony, which the prosecution read at trial, that
Mokdad “was being aggressive” and flailing his arms at her, raised his right fist in a
“fighting boxing type of stance,” and said, “I ain’t giving you anything, bitch.” When
Jenkins continued to insist that Mokdad pay her, Mokdad cursed at Jenkins, shook his
fists, and shouted at Jenkins to get out of the car.
       Johnson had been shopping in the convenience store and was carrying his
purchases in a plastic bag out to the parking lot. The video recordings show that after
Johnson left the store he turned to his right to leave the parking lot but then changed
directions and walked towards the car occupied by Mokdad and Jenkins. Johnson


1
       Statutory references are to the Penal Code.


                                               2
testified that shortly after leaving the store he heard people yelling and cursing from
inside the parked car and realized that his long-time friend Jenkins was sitting in the front
seat, arguing with the male driver. He decided to ask Jenkins why she was upset.
       As Johnson approached the car, it began backing up and almost hit him before it
abruptly stopped. Jenkins testified that Mokdad was trying to drive away with her still in
the car. Johnson immediately opened the driver’s door and leaned into the car to speak to
Jenkins. Jenkins told Johnson that Mokdad, the driver, was refusing to pay her as he had
promised. Johnson directed Mokdad to pull back into the parking space. Johnson opened
the rear passenger door on the driver’s side and got into the back seat. Mokdad closed
the driver’s door and re-parked the car. Johnson testified that after he got into the
backseat Mokdad and Jenkins continued to curse and yell at each other. Johnson listened
to them argue for a few seconds and then decided to leave.
       The video recording showed the rear passenger door on the driver’s side swinging
open. Seconds later, Johnson emerged from the car, holding the plastic bag in his left
hand, and Mokdad quickly jumped out of the car from the driver’s side door. The two
men closed the car doors and faced each other on the driver’s side of the car, with
Johnson’s back to the convenience store and the video camera. Only Mokdad’s head and
a partial view of the front of his upper body were visible to the camera.
       Both men were talking and moving around in the confined space. Johnson was
still holding the bag in left hand, and his right arm was slightly bent. Both of Mokdad’s
arms were bent near his waist as he took a step forward and to the right of Johnson.
Johnson then stepped to his left and in front of Mokdad, who then stepped back.
Suddenly, Johnson moved his right arm back at a slight angle and swung it forward,
striking Mokdad on the side of the head, although it is unclear from the recording
whether Johnson used his fist or open hand. Mokdad dropped to the pavement on his
back, and Johnson left the parking lot. Jenkins got out of the car and followed Johnson.
Seconds later, she returned, looked around, rifled through Mokdad’s clothing, retrieved
something, and walked away.



                                              3
       Johnson testified he did not punch Mokdad but instead hit him with an open hand
after Mokdad continued to curse and argue with Johnson while refusing to return to the
car. According to Johnson, who said he just wanted to get away, Mokdad stood “face to
face” with Johnson, yelled some “fighting words,” assumed a fighting stance, clenched
his fists, and nudged Johnson in the chest with his left forearm. Jenkins testified that
Mokdad was “talking crazy” as they faced each other. Johnson considered Mokdad’s
actions threatening, and he reacted quickly by delivering a single hard slap to Mokdad’s
head. Johnson denied he was upset that Jenkins was with another man or that Mokdad
did not intend pay her. In a police interview, Johnson was still angry, but expressed
remorse for having struck Mokdad and later wrote him a letter of apology.
       Mokdad was taken to the hospital. The blow to Mokdad’s head resulted in a
subdural hematoma, bleeding in and around the brain. The emergency physician gave
Mokdad platelets, and the hospital kept him under observation for several days. When
his son visited him on the day of the assault, Mokdad could not recall what had happened
to him and was speaking unintelligibly. Mokdad was not able to recognize his family
members for four or five days. Mokdad did not appear at the preliminary hearing and
was out of the country at the time of trial.


       B.     The Verdict
       The jury convicted Johnson of assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)),2 a “wobbler.”3 The jury also found true the special


2
       Section 245, subdivision (a)(4), provides: “Any person who commits an assault
upon the person of another by any means of force likely to produce great bodily injury
shall be punished by imprisonment in the state prison for two, three, or four years, or in a
county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars
($10,000), or by both fine and imprisonment.”
3
        “‘Wobbler’ is the jargon term in criminal law for an offense that can be punished
either as a felony or a misdemeanor.” (People v. Eandi (2015) 239 Cal.App.4th 801, 804,
fn. 3.)


                                               4
allegation that Johnson had inflicted great bodily injury on a victim who was 70 years or
older (§ 12022.7, subd. (c)).4


       C. Sentencing
       According to the probation officer’s report, Johnson was 51 years old at the time
of the offense and lived as a transient. He had a lengthy criminal history consisting of
misdemeanor convictions for giving false information to a police officer in February
1983, being under the influence of a controlled substance in July 1983, being under the
influence of a controlled substance in 1984, trespassing in March 1986, spousal abuse in
March 1987, battery and resisting, delaying and obstructing an officer in the performance
of official duties in September 1987, being under the influence of a controlled substance
and possession of drug paraphernalia in 1990, spousal abuse in 1991, battery in January
1992, aggravated assault in 1996, disturbing the peace in 2010, and possession of a
controlled substance in 2007. Johnson had felony convictions for possession of a deadly
weapon in February 1986, taking or driving a vehicle without the owner’s consent,
receiving stolen property, and grand theft of an automobile in March 1988, possession of
a controlled substance in May 1992, residential burglary in 1993, and possession of a
controlled substance in 2011. Johnson had violated the terms of his probation and parole
on numerous occasions. The probation officer reported that Johnson was ineligible for
probation and recommended that the trial court sentence Johnson to the upper term for
aggravated assault.




4
       The trial court had granted Johnson’s motion to bifurcate trial on the special
allegations that he had suffered one prior serious or violent felony conviction (§§ 667,
subds. (a)(1), (b)-(i), 1170.12) and had served several separate prison terms for felonies
(§ 667.5, subd. (b)). Because the trial court reduced the felony conviction for aggravated
assault to a misdemeanor, however, there was no trial on the prior conviction allegations.


                                             5
       Johnson filed a motion pursuant to section 17, subdivision (b), to reduce his felony
conviction for aggravated assault to a misdemeanor.5 In their written opposition, the
People argued that the court should deny Johnson’s motion in light of the nature and
length of Johnson’s criminal history, his irrational and violent response to the elderly
Mokdad, and the severity of Mokdad’s injuries. The People asked the court to sentence
Johnson to 16 years in state prison.
       At the sentencing hearing, the trial court explained in detail its tentative decision
to grant Johnson’s motion. The court began by assessing Johnson’s criminal record,
which, although the court acknowledged was “terrible” and “lengthy,” was nonetheless
devoid of “felony violence.” Most of Johnson’s felony and misdemeanor convictions
were for drug offenses. Johnson’s 1993 conviction for residential burglary, which the
court characterized as “carrying with it the possibility of violence,” was “now 21 years
old.” The court also noted that Johnson’s misdemeanor convictions for crimes of
violence occurred in the 1980’s and 1990’s.
       After reviewing Johnson’s criminal history, the trial court acknowledged that it
could strike the great bodily injury enhancement and Johnson’s prior strike and impose a
seven-year state prison term.6 The court rejected this sentencing option, however,
because the court concluded that, “given the circumstances of this offense,” a seven-year
sentence was not warranted. The court also stated that, although Mokdad did not deserve


5
       Section 17, subdivision (b)(1), provides: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail . . . it is a misdemeanor for all purposes under the following circumstances:
[¶] (1) After a judgment imposing a punishment other than imprisonment in the state
prison or imprisonment in a county jail under the provisions of subdivision (h) of Section
1170.”
6
       The trial court apparently arrived at this possible sentence by selecting the lower
term of two years under section 245, subdivision (a)(4), plus either the five-year
enhancement for inflicting great bodily injury on an elderly victim under section 12022.7,
subdivision (c), or five one-year enhancements for Johnson having served five separate
prison terms for felony convictions within the meaning of section 667.5, subdivision (b).


                                              6
to be the victim of an assault or his severe injuries, Mokdad had “created the situation
that resulted in this criminal act” by soliciting a prostitute, refusing to pay her, and
beginning to drive away while she was still in his car. The court noted that Mokdad’s
actions amounted to criminal acts of solicitation, false imprisonment or attempted
kidnapping, for which he could have been prosecuted. The court explained that, because
Mokdad had declined to testify in court, there was no other reasonable inference from the
evidence.
       Turning to the circumstances of the crime, the trial court observed that the
confrontation between Mokdad and Johnson began as an argument and ended with
Johnson delivering a single blow to the side of Mokdad’s head and leaving the parking
lot. The court stressed that Johnson refrained from hitting or kicking Mokdad after he
had fallen to the ground. Nor, the court noted, did Johnson make any attempt to search
Mokdad’s clothing for money or other personal property. The court stated, “He literally
hit him once and walked away.” The court stated it had considered Mokdad’s advanced
age as a factor, but noted Johnson was 51 years old and, although not elderly, he was also
not a teenager preying on a victim whose age made him vulnerable. As for Mokdad’s
injuries, the court acknowledged Johnson “gave a good swing,” which the court expected
to have caused some bruising to the side of Mokdad’s head, consistent with harm from a
punch. Instead, the medical photographs revealed a red mark on Mokdad’s head, which
indicated he had been slapped rather than punched.
       Following the argument of counsel, the trial court summarized the factors it had
discussed and, after commenting it was “a tough call,” adopted its tentative ruling and
granted Johnson’s request to reduce the felony conviction to a misdemeanor. The court
commented that “if this was any other case” the court would have had no problem
sentencing Johnson to “a substantial amount of time in prison,” but that “the facts and
circumstances of this offense” led the court to conclude that “seven years in the state
prison is just not a just sentence.” The court sentenced Johnson to the statutory
maximum of one year in county jail.



                                               7
                                       DISCUSSION


       A. Section 17 and the Standard of Review
       “The Legislature has classified most crimes as either a felony or a misdemeanor,
by explicitly labeling the crime as such, or by the punishment prescribed. . . . There is,
however, a special class of crimes involving conduct that varies widely in its level of
seriousness. Such crimes, commonly referred to as ‘wobbler[s]’ [citation], are
chargeable or, in the discretion of the court, punishable as either a felony or a
misdemeanor.” (People v. Park (2013) 56 Cal.4th 782, 789 (Park).) Section 17,
subdivision (b), gives the court discretion to punish a defendant convicted of a wobbler
offense as a misdemeanor, even if the People charged the defendant with the wobbler as a
felony. (See Park, at p. 790; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
974, disapproved on other grounds in People v. Williams (2005) 35 Cal.4th 817, 832.)
Section 17 ““‘specifically leaves the determination of the nature of the conviction to the
discretion of the judge,”’” and “[t]he court’s authority to exercise discretion in this regard
is a long-established component of California’s criminal law.” (Park, at pp. 790, 800; see
id. at p. 801 [“the Legislature has empowered the courts to decide, in each individual
case, whether the crime should be classified as a felony or a misdemeanor”].) Moreover,
the fact that a defendant like Johnson is subject to an enhancement for personal infliction
of great bodily injury does not deprive a court of discretion under section 17, subdivision
(b), to declare the offense a misdemeanor. (People v. Feyrer (2010) 48 Cal.4th 426, 444
& fn. 11.)
       A trial court properly exercises its discretion to reduce a wobbler to a
misdemeanor when it has concluded that a particular defendant should not be treated as a
felon. (Park, supra, 56 Cal.4th at p. 801.) “Such a defendant is not blameless,” but is
someone for whom “felony punishment, and its consequences, are not appropriate” and
who is not “a member of the class of criminals convicted of a prior serious felony whom
the voters intended to subject to increased punishment for a subsequent offense.” (Id. at
pp. 801-802; see id. at p. 790 [“the court’s exercise of discretion under section 17(b)

                                              8
contemplates the imposition of misdemeanor punishment for a wobbler ‘in those cases in
which the rehabilitation of the convicted defendant either does not require, or would be
adversely affected by, incarceration in a state prison as a felon’”].) In exercising its
discretion, the court should consider factors relevant to similar sentencing decisions,
including “‘the nature and circumstances of the offense, the defendant’s appreciation of
and attitude toward the offense or his [or her] traits of character as evidenced by his [or
her] behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should
also consider the general objectives of sentencing such as those set forth in California
Rules of Court, rule 410 [now rule 4.410].”7 (Alvarez, supra, 14 Cal.4th at p. 978.)
       We review the trial court’s “broad latitude” in exercising its authority to grant or
deny a defendant’s request to reduce a wobbler from a felony to a misdemeanor under an
“extremely deferential and restrained” abuse of discretion standard. (Alvarez, supra, at p.
981; see People v. Sy (2014) 223 Cal.App.4th 44, 66 [“[a] court ha[s] broad discretion
under section 17, subdivision (b) in deciding whether to reduce a wobbler offense to a
misdemeanor”].) “‘The burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’” (Alvarez, supra, at pp. 977-978.)



7
        Rule 4.410 of the California Rules of Court provides: “(a) General objectives of
sentencing include: [¶] (1) Protecting society; [¶] (2) Punishing the defendant; [¶] (3)
Encouraging the defendant to lead a law-abiding life in the future and deterring him or
her from future offenses; [¶] (4) Deterring others from criminal conduct by
demonstrating its consequences; [¶] (5) Preventing the defendant from committing new
crimes by isolating him or her for the period of incarceration; [¶] (6) Securing restitution
for the victims of crime; and [¶] (7) Achieving uniformity in sentencing. [¶] (b)
Because in some instances these objectives may suggest inconsistent dispositions, the
sentencing judge must consider which objectives are of primary importance in the
particular case. The sentencing judge should be guided by statutory statements of policy,
the criteria in these rules, and the facts and circumstances of the case.”


                                              9
              B.      The Trial Court Did Not Abuse Its Discretion in Granting Johnson’s
                      Request To Declare His Current Offense a Misdemeanor
       The People argue that the trial court abused its discretion because “the court’s
prejudice and bias against Mokdad caused it to look outside the perimeters of an
individualized consideration of the offense, the offender, and public interest . . . .”   The
People assert that the trial court erroneously believed “Mokdad was the cause of the
assault,” “blamed the victim,” and “minimized Johnson’s conduct” by stating he hit
Mokdad with “a slap and not a punch.”
       The trial court’s decision to punish Johnson’s aggravated assault conviction as a
misdemeanor fell within the court’s broad discretion under section 17, subdivision (b).
The trial court properly considered the appropriate factors, including the nature and
circumstances of the offense, in deciding to treat Johnson’s offense as a misdemeanor
rather than a felony. Mokdad, who only encountered Johnson because he had refused to
honor a debt he had incurred in the commission of a crime, actively participated in
escalating the confrontation from a verbal to a physical altercation. Johnson reacted
impulsively in response to a perceived threat by striking Mokdad once after Mokdad had
nudged him. The assault was not a premeditated or prolonged attack, and Johnson did
not use any weapons. Johnson was remorseful for his actions and never denied his
involvement. And, although Johnson had a lengthy criminal history, most of his offenses
were non-violent and drug-related, and his prior strike conviction and misdemeanor
crimes involving violence were decades old.
       Although the jury found true the elderly victim sentencing enhancement
(§ 12022.7, subd. (c)), there was no evidence that Johnson targeted the 73-year-old
Mokdad because of his age. Johnson, who was 51 years old, testified that Mokdad did
not appear elderly, and nothing in Mokdad’s movements in the video recording suggested
he was frail or vulnerable at the time. To the contrary, Mokdad, who was taller than
Johnson, emerged from the car as quickly as Johnson did and stood his ground in a
fighting stance prior to the assault.



                                              10
       The record does not support the People’s assertion that the trial court was biased
against Mokdad because the court observed that Mokdad had refused to appear in court to
testify and that Mokdad’s unlawful conduct set in motion the events that culminated in
the assault. The court’s reference to Mokdad’s failure to appear was not a reflection of
bias or prejudice. Rather, the court was explaining why it believed Jenkins’ preliminary
hearing testimony: Without any testimony from Mokdad, Jenkins’ version of events
leading up to the assault was credible and uncontradicted. None of the three participants
was entirely blameless, and they all engaged in conduct that played a role in the events
that led to the assault. Jenkins was working as a prostitute. Mokdad solicited prostitution
and refused to pay. Johnson assaulted Mokdad. Whether or not the court
mischaracterized some of Mokdad’s actions towards Jenkins as false imprisonment or
kidnapping, as the People assert, the evidence supports the court’s finding that Mokdad’s
persistent refusal to pay Jenkins, his attempt to drive away with her in the car, and his
decision to get out of the car when Johnson did contributed to the confrontation between
the two men. As the court noted, “[w]hatever happened inside the car, Mr. Johnson got
out of the car first. At that point, if Mr. Mokdad wanted to end it, all he had to do was
lock the doors and drive away.”
       Finally, as the People acknowledge, the court stated it was not blaming the victim.
The court stated that, although Mokdad “created the situation which ultimately resulted in
his injury, that doesn’t mean he deserved what he got. . . . He did not. But he set in
motion a chain of circumstances that ultimately produced the criminal act by Mr.
Johnson. And again, it’s Mr. Johnson’s total responsibility for what he did. I’m not
[putting] blame on the victim. I’m [pointing] out the fact that he created the facts that led
to this crime.” The trial court appropriately considered the “situation” and
“circumstances” of the crime in exercising its discretion under section 17, subdivision
(b). (See Alvarez, supra, 14 Cal.4th at p. 978.)




                                             11
                                 DISPOSITION


     The judgment is affirmed.




             SEGAL, J.


We concur:




             PERLUSS, P. J.




             ZELON, J.




                                     12
