Unreported / Non-Citable
Background
Joseph Lynn Johnson was convicted by a jury of rape of a mentally disabled person in violation of Penal Code section 261, subdivision (a)(1), and was sentenced to the low term of three years in prison. The victim, J.B., born in 1951, had been diagnosed with Alzheimer's disease and a significant cognitive impairment. In February 2020, while Johnson was staying at the home J.B. shared with her daughter Janilah, Janilah entered J.B.'s bedroom and saw Johnson on top of J.B. with his pants down, penetrating her. A sexual assault nurse examiner later found vaginal injuries, and Johnson's sperm was detected on a swab.
Johnson testified that J.B. initiated the encounter while he was asleep, that he woke to find her on top of him, pushed her off, and did not have intercourse with her, suggesting any DNA was 'touch DNA.' At sentencing, the trial court imposed a $1,000 restitution fine under section 1202.4, subdivision (b), and a $3,200 penalty assessment, issued a protective order covering J.B. and her daughter M.W., and awarded 530 days of presentence custody credits (265 actual and 265 conduct).
The Court’s Holding
The Court of Appeal affirmed the conviction, rejecting Johnson's claim that the trial court had a sua sponte duty to instruct on battery as a lesser included offense. The court noted a split of authority over whether battery is a lesser included offense of rape of a mentally disabled person but assumed without deciding that it is. Even so, substantial evidence did not support a battery instruction: Johnson's own testimony showed that if a battery occurred, it was committed by J.B., not by him, and when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense.
The court remanded for recalculation of the section 290.3, subdivision (a) fine and penalty assessments. The maximum base fine for a first section 290 conviction is $300, not $3,200, and the amended abstract of judgment must specify the amount and statutory basis of the fine and each penalty assessment. On remand, Johnson is entitled to be personally present to request an ability-to-pay hearing, and the court must consider his total financial obligations. The court also directed recalculation of presentence custody credits, the parties having agreed Johnson was entitled to 267 days of actual custody credit.
Finally, the court directed the trial court to strike M.W.'s name from the protective order. Under section 136.2, subdivision (i), such orders may protect victims and percipient witnesses shown by clear and convincing evidence to have been harassed; M.W. was neither, because the only percipient witness was Janilah. In all other respects, the judgment was affirmed, and the trial court must forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
Key Takeaways
- A trial court has no sua sponte duty to instruct on a lesser included offense when the defendant's own testimony denies he committed the lesser offense and completely denies complicity in the charged crime.
- The maximum base fine under Penal Code section 290.3, subdivision (a), for a first conviction is $300, and the abstract of judgment must itemize the amount and statutory basis of each penalty assessment.
- A defendant is entitled to be personally present on remand to object to the section 290.3 fine based on inability to pay, judged in light of his total financial obligations.
- Presentence custody credits must be recalculated where the parties agree the actual-custody figure was miscalculated.
- A protective order under section 136.2, subdivision (i), may include only victims and harassed percipient witnesses; a family member who is neither must be removed.
Why It Matters
This unpublished decision applies settled rules to a fact-specific appeal: lesser-included instructions turn on the defendant's own evidence, and sentencing fines, custody credits, and protective orders must be precise and within statutory authority. The court flagged but did not resolve the appellate split over whether battery is a lesser included offense of rape of a mentally disabled person, holding only that no instruction was required on these facts.
The remand directives give trial courts concrete guidance on itemizing section 290.3 fines and penalty assessments, honoring ability-to-pay hearings, correcting presentence custody credits, and limiting protective orders to the categories section 136.2 authorizes.