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Filed 9/26/14 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DOMINIQUE TASHAUN JOHNSON,

Defendant and Appellant.

C074188

(Super. Ct. No. NCR85946)

A jury found defendant Dominique Tashaun Johnson guilty of reckless evasion of 

a pursuing peace officer (Veh. Code, § 2800.2) and found he had a prior strike conviction 

for robbery in Washington (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i); 

unless otherwise stated, statutory references that follow are to the Penal Code). 

Sentenced to six years in state prison, defendant appeals. He contends reversal is 

required because the trial court gave the jury a “conflicting” instruction that lowered the 

prosecution’s burden of proof. He also contends, and the People concede, that there was 
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insufficient evidence that his prior Washington robbery conviction qualified as a strike 

and that the abstract erroneously indicates the trial court imposed a section 1202.5 fine. 

We reverse the prior strike finding and order the preparation of an amended abstract of 

judgment.

FACTS AND PROCEEDINGS

A detailed recitation of the facts underlying the offense is unnecessary to the 

resolution of the issues on appeal. Instead of stopping in response to a California 

Highway Patrol officer’s activation of emergency lights and the siren, defendant 

accelerated to twice the legal speed limit and ran a red light before losing control of his 

vehicle, skidding through a ditch and crashing into a stop sign. 

The jury found defendant guilty of reckless evasion of a pursuing peace officer. In 

a bifurcated proceeding, the jury found true that defendant had sustained a prior 

conviction for robbery in Washington. The trial court found the robbery conviction 

constituted a strike, as the statutory definitions of robbery in Washington and California 

were similar. 

The trial court denied defendant’s request to dismiss his prior strike and sentenced 

defendant to the upper prison term of three years, doubled to six years for the strike. 

DISCUSSION

I

Instructional Error

Defendant contends his conviction must be reversed because the trial court 

misspoke when charging the jury with the instruction on the prosecution’s burden of 

proof beyond a reasonable doubt. He contends the mistake resulted in structural error 

because it essentially lowered the prosecution’s burden of proof. We find the trial court 

did not commit reversible error.
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The trial court instructed the jury with CALCRIM No. 220, which was read to the 

jury and provided to the jury in written form, as follows: 

“Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need not eliminate all possible doubt 

because everything in life is open to some possible or imaginary doubt.

“In deciding whether the People have proved their case beyond a reasonable 

doubt, you must impartially compare and consider all the evidence that was received 

throughout the entire trial. Unless the evidence proves the defendant guilty beyond a 

reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” 

Immediately following the oral instruction with CALCRIM No. 220, the trial court 

read CALCRIM No. 221, as follows:

“The People are required to prove the allegations beyond a reasonable doubt.

“Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the allegation is true. The evidence does not need to eliminate all possible 

doubt because everything in life is open to some --” The trial court then interjected: 

“sorry, folks, that is somewhat repetitive but I’ll finish because it is still the same” and 

continued: “-- because everything in life is open to some possible or imaginary doubt. 

“In deciding whether the People have proved the allegation beyond a reasonable 

doubt, you must impartially compare and consider all the evidence that was received 

during this phase of the trial. Unless the evidence proves the allegation beyond a 

reasonable doubt, you must find that the allegation has been proven.” The last sentence 

in CALCRIM No. 221 should properly read: “Unless the evidence proves the allegation 

beyond a reasonable doubt, you must find that the allegation has not been proven.” 

(Italics added.) 

Defendant contends the trial court’s error violated his constitutional due process 

rights to a fair trial and to present a defense (U.S. Const., 6th & 14th Amends.) and, 

therefore, requires reversal without an inquiry into prejudice because it constitutes a 
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structural error, and that, even if inquiry into prejudice is required, the error cannot be 

shown to be harmless beyond a reasonable doubt. 

Contrary to defendant’s contention, the California Supreme Court has held that 

errors such as these do not constitute reversible error, structural or otherwise. “The risk 

of a discrepancy between the orally delivered and the written instructions exists in every 

trial, and verdicts are not undermined by the mere fact the trial court misspoke. ‘We of 

course presume “that jurors understand and follow the court’s instructions.” [Citation.] 

This presumption includes the written instructions. [Citation.] To the extent a 

discrepancy exists between the written and oral versions of jury instructions, the written 

instructions provided to the jury will control.’ (People v. Wilson [(2008) 44 Cal.4th 758, 

803].) Because the jury was given the correctly worded instructions in written form and 

instructed with [former] CALJIC No. 17.45 that ‘[y]ou are to be governed only by the 

instruction in its final wording,’ and because on appeal we give precedence to the written 

instructions, we find no reversible error. (See also People v. Mungia (2008) 44 Cal.4th 

1101, 1132-1133; People v. Box (2000) 23 Cal.4th 1153, 1212.)” (People v. Mills (2010) 

48 Cal.4th 158, 200-201 (Mills), footnotes omitted.)

Here, as in Mills, the trial court provided the jury with properly worded written 

instructions and instructed the jurors with CALCRIM No. 200, which provides in 

pertinent part: “Members of the jury, I will now instruct you on the law that applies to 

this case. [I will give you a copy of the instructions to use in the jury room.] [The 

instructions that you receive may be printed, typed, or written by hand. Certain sections 

may have been crossed-out or added. Disregard any deleted sections and do not try to 

guess what they might have been. Only consider the final version of the instructions in 

your deliberations.]” 

The jury was instructed to consider only the “final version” of the jury instructions 

which necessarily were the written instructions they were given to refer to in the jury 

deliberation room. Under the circumstances, there was no reversible error. 
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Defendant argues that, although the jurors received a corrected worded copy of 

CALCRIM No. 220, they did not receive a correctly worded copy of CALCRIM No. 221 

-- the instruction the judge misread. Thus, he argues, the error was not corrected. 

CALCRIM No. 221 is properly given in special proceedings or bifurcated trials, 

such as trial on prior convictions or sentencing factors, not in the trial on the substantive 

crime charged. 

CALCRIM Nos. 220 and 221 are nearly identical instructions, except that one 

refers to proving the case and the other, proving the “allegation.” Indeed, the trial court 

interjected during the oral reading of CALCRIM No. 221 that the instruction was 

repetitive of what the jury had just heard but it would continue anyway. Thus, the jurors, 

receiving the written CALCRIM No. 220 instruction, would reasonably conclude that the 

language contained therein controlled as to the entire redundant oral instruction. If 

defense counsel believed any possible confusion had remained, he was free to object and 

have the trial court further correct the error. (See Mills, supra, 48 Cal.4th at p. 201, fn. 

15.) 

Because the jury was provided with the correctly worded version of CALCRIM 

No. 220, there was no reversible error.

II

Washington Robbery Conviction as Prior Strike

Defendant contends there is insufficient evidence that the State of Washington 

robbery prior qualified as a strike under California law. He contends that the law of 

robbery in California, unlike in Washington, requires an intent to permanently deprive the 

victim of the property, an element that is missing in Washington law.

To qualify as a strike, a conviction in another jurisdiction must meet all of the 

elements of the California felony that qualifies as a strike. (See § 1170.12, subd. (b)(2), 

see also § 667.5, subd. (f).) When deciding whether an out-of-state prior is a serious 
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felony, “the trier of fact may consider the entire record of the proceedings leading to 

imposition of judgment on the prior conviction to determine whether the offense of which 

the defendant was previously convicted involved conduct which satisfies all of the 

elements of the comparable California serious felony offense.” (People v. Myers (1993) 

5 Cal.4th 1193, 1195; People v. Riel (2000) 22 Cal.4th 1153, 1204 (Riel).) The record 

need only contain evidence from which the trier of fact can reasonably presume the 

existence of the required elements. (See Riel, supra, 22 Cal.4th at pp. 1204-1205; People 

v. Johnson (1989) 208 Cal.App.3d 19, 24.) When the record does not disclose the facts 

of the offense actually committed, courts presume the prior conviction was for the least 

offense punishable under the law of the convicting state. (People v. Mumm (2002) 

98 Cal.App.4th 812, 815-816.) 

In California, “ ‘[r]obbery is the taking of “personal property in the possession of 

another against the will and from the person or immediate presence of that person 

accomplished by means of force or fear and with the specific intent permanently to 

deprive such person of such property.” ’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 

539, 608.) The intent to deprive permanently is satisfied by the intent to deprive 

temporarily but for an unreasonable time so as to deprive the person of a major portion of 

the value or enjoyment. (People v. Avery (2002) 27 Cal.4th 49, 58.) In Washington, the 

elements of robbery no longer include the intent permanently to deprive the victim of the 

property. (State v. Komok (1989) 113 Wn.2d 810, 814-817 [783 P.2d 1061, 1063-1064]; 

see also Riel, supra, 22 Cal.4th at p. 1206.) Thus, we must determine whether the record 

of conviction for defendant’s State of Washington prior permits the inference of an intent 

to deprive permanently. We agree it does not.

The record of defendant’s conviction contains information that defendant was 

convicted by plea on October 23, 2009, of a first degree robbery committed on May 18, 

2009, by displaying an object that appeared to be a firearm or other deadly weapon. 
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The record shows defendant’s conviction for robbery was as provided under 

Revised Code of Washington 9A.56.190, for being in violation of Revised Code of 

Washington 9A.56.200, subdivision (1)(a)(ii), which provides that “[a] person is guilty of 

robbery in the first degree if: [¶] . . . [i]n the commission of a robbery or of immediate 

flight therefore, he or she: [¶] . . . [d]isplays what appears to be a firearm or other deadly 

weapon . . . .” 

There are no other facts of the offense contained in the record. 

Thus, there is insufficient evidence to support a determination that defendant’s 

Washington robbery involved conduct satisfying all the elements of robbery in 

California. Accordingly, we must reverse the trial court’s finding that defendant’s 

Washington conviction constituted a serious felony conviction and remand to permit the 

People to present evidence at a new trial on whether the Washington conviction so 

qualifies. (§ 1192.7, subd. (c)(19); People v. Barragan (2004) 32 Cal.4th 236, 239, 259 

[retrial of strike allegation permissible where appellate court reverses for insufficient 

evidence].)

III

Correction of Abstract of Judgment

Finally, defendant contends, and the People agree that the abstract of judgment 

erroneously reflects that the trial court imposed a $36 fine pursuant to section 1202.5. 

Section 1202.5 provides for imposition of a mandatory fine in cases involving certain 

specified Penal Code section violations. Defendant was convicted of none of those. 

Thus, the trial court did not orally impose any fine pursuant to section 1202.5 and 

reference to such a fine must be stricken from the abstract. (People v. Mitchell (2001) 

26 Cal.4th 181, 185 [oral pronouncement controls and appellate court may order 

correction of abstract not accurately reflecting oral judgment].)
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DISPOSITION

The finding that defendant’s prior conviction for robbery in Washington was for a 

serious felony within the meaning of the three strikes law is reversed, and the three-year 

enhancement imposed for that prior conviction is stricken. If the People elect to retry the

strike allegation, the trial court shall resentence defendant following retrial. If, within 60 

days after the remittitur issues from this court, the People have not filed and served an 

election to retry the strike allegation, the trial court shall dismiss the allegation and

amend the abstract of judgment to delete the three-year term. In any event, the court shall 

amend the abstract of judgment deleting the $36 fine attributed to section 1202.5 and 

forward a copy of the amended abstract to the Department of Corrections and 

Rehabilitation.

 HULL , Acting P. J.

We concur:

 MURRAY , J.

 HOCH , J.