People v. Johnson
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Johnson sexually abused his eight-year-old adopted daughter, Jane. His wife discovered and reported the abuse. Johnson was convicted of nine counts of aggravated sexual assault of a child (Pen. Code 269(a)(4)); nine parallel counts, based on the same conduct, of sexual acts on a child (288.7(b)); and four counts of forcible lewd acts on a child (288(b)(1)). Johnson admits the sexual conduct. His aggregate sentence was 32 years plus 135 years to life
The court of appeal rejected Johnson’s arguments that the evidence was insufficient to show he used force, fear, or duress to effect the abuse; that the court abused its discretion and denied his right to confront witnesses by precluding questions about past sexual abuse of Jane; and that his sentence was unconstitutionally cruel and/or unusual.
The court remanded for the court to exercise its discretion to resentence Johnson on the lewd acts counts. Insofar as section 667.6(d) required the court to make his sentences consecutive rather than concurrent based on a judicially-found fact, it was consistent with precedent. Insofar as section 667.6(d) mandated the imposition of “full” terms on the second through fourth counts, on which the court would otherwise have had the discretion to impose either a full term or one-third of the middle term, the statute increased the mandatory minimum sentence for those discrete crimes based on judicial factfinding, in violation of the Sixth Amendment as construed by the Supreme Court in “Alleyne” (2013).
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