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People v. Johnson4/15/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant George I. Johnson was found guilty by a jury of assault on a peace officer with a semiautomatic firearm, attempted carjacking, and possession of a firearm by a felon. Sentenced to prison for a term of 33 years and 10 months he appeals, contending the judgment must be reversed because the trial court failed to instruct the jury on voluntary intoxication as applied to the specific intent element of the alleged attempted carjacking. Respondent concedes the error, but contends it was not prejudicial. After review of the entire record we conclude the error was not harmless. Accordingly, we affirm appellant's convictions of assault on a peace officer with a semiautomatic firearm and possession of a firearm by a felon, and reverse his conviction of attempted carjacking. We remand for the limited purpose of retrial of the attempted carjacking count and for resentencing thereafter.
FACTUAL AND PROCEDURAL SUMMARY
The evidence, recounted in the light most favorable to the judgment, proved that on June 29, 2001, at approximately 3:00 a.m. California Highway Patrol Officers Richard Cheever and Efrem Moore stopped a 1995 Land Rover driven by appellant for failure to display a rear license place. During the traffic stop the officers learned that appellant was driving on a suspended Ohio license. They also concluded, based on field sobriety tests, that appellant had been driving under the influence of alcohol and possibly marijuana. When Officer Moore attempted to handcuff appellant, a verbal and physical confrontation ensued during which Officer Cheever twice sprayed appellant in the eyes with pepper spray. The pepper spray did not have the anticipated effect, causing Officer Cheever to believe that appellant was "so intoxicated that pepper spray wasn't affecting him."
Appellant managed to get away from the arresting officers, running up a dirt embankment to a freeway with Officer Cheever in pursuit. During the foot chase which followed, appellant fired a handgun at Officer Cheever, and Officer Cheever returned the shots.
Appellant went to a Chevron gas station where he attempted to pay a customer for a ride, saying he needed to get out of there. The man declined, but suggested appellant ask another man who was outside filling his truck with gas. The clerk, noticing that appellant was bleeding, offered to call an ambulance. Appellant refused. Appellant went outside and got into the passenger side of a truck owned by Daniel High, saying that he needed help because someone was trying to kill him. Appellant offered Mr. High money to drive him to a friend's house. Mr. High refused. Appellant then asked if the truck was insured. When Mr. High responded that it was, appellant told him to tell police he had stolen the truck and the insurance company would give him a new truck. Mr. High refused. Mr. High tried, unsuccessfully, to get the attention of passing police, but appellant told him not to do that. Appellant pulled a gun from his waist and asked Mr. High to hide it. When Mr. High refused, appellant put it under the passenger seat. Appellant then demanded the keys for the truck, repeating his command at gun point when Mr. High refused. Mr. High grabbed his keys, phone, and wallet and ran towards the Chevron store for help.
Police who arrived at this moment, ordered appellant to drop the gun and put his
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