People v. Johnson CA5

INTRODUCTION

Defendant Ted Obie Johnson II took photographs of a 15-year-old girl while she was sleeping, and moved her clothes to expose her breasts and genital area as he did so. A jury convicted him of a lewd act upon a 14- or 15-year-old child (Pen. Code,1 § 288, subd. (c)(1); count 1), unlawful possession of child pornography (§ 311.11, subd. (a); count 2), and annoying or molesting a child (§ 647.6, subd. (a)(1); count 3). The court sentenced defendant to an aggregate prison term of two years and defendant was also ordered to pay various fees, fines and assessments. On appeal, defendant contends the court committed structural error in its oral instruction on reasonable doubt, requiring reversal. To the extent counsel was required to object to this error and failed to do so, he contends counsel was ineffective. He further contends he is entitled to have excess presentence custody credits applied against a $1,230 fine that was imposed pursuant to section 290.3. We reject defendant’s claim of instructional error on the merits and therefore do not reach his claim of ineffective assistance of counsel. However, as the People concede, defendant is entitled to have excess custody…