People v. Swear CA5

── People v. Swear CA5 ── Court: California Court of Appeal Date: May 12, 2026 Category: General Filed 5/12/26 P. v. Swear CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F088839 Plaintiff and Respondent, (Super. Ct. No. 21CR-01804) v. JOHNNY JAY SWEAR, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Merced County. Stephanie L. Jamieson, Judge. Joshua L. Siegel, under appointment by the Court of Appeal, for Plaintiff and Respondent. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Caely E. Fallini, Deputy Attorneys General, for Defendant and Appellant. -ooOoo-  INTRODUCTION Between August 2012 and December 2017, defendant Johnny Jay Swear sexually abused three girls less than 14 years old and did so multiple times. A jury convicted defendant of four counts of a lewd and lascivious act upon a child less than 14 years old. The trial court sentenced defendant to a total term of 100 years to life in prison, including four separate terms of 25 years to life, pursuant to the “One Strike” law (Pen. Code, § 667.61).1 Defendant contends on appeal that the trial court (1) violated his right to due process by excluding a witness’s prior statements to police that he read social media communications of two victims in which they discussed the charges, (2) erred in instructing the jury that uncharged offenses testified to by a complaining victim need only be proven by a preponderance of evidence, and (3) erred in computing his presentence actual custody credits. The People concede the latter issue. We accept the People’s concession but otherwise affirm the judgement. PROCEDURAL HISTORY The District Attorney of Merced County filed a third amended information on June 25, 2024, charging defendant with four counts of committing a lewd and lascivious act upon a child under the age of 14 years (§ 288, subd. (a); counts 1–4)2 and alleging the aggravating circumstance that defendant’s convictions in the present case involved more than one victim pursuant to the One Strike law (§ 667.61, subds. (e), (j)(2)) as to all counts. Defendant pleaded not guilty. After an 11-day trial, the jury convicted defendant of all charges and found true the multiple victim aggravating circumstance. 1 Undesignated statutory references are to the Penal Code. 2 The offenses involved three minor victims: J.R. (counts 1, 2); A.S. (count 3); and M.V. (count 4). 2.  The trial court denied probation and sentenced defendant to four consecutive terms of 25 years to life (§§ 288, subd. (a), 667.61, subd. (j)(2)), for a total term of 100 years to life in prison. The court ordered defendant to pay victim restitution (§ 1202.4, subd. (f)), $10,000 restitution and stayed parole revocation restitution fines (§§ 1202.4, subd. (b), 1202.45, subd. (a)), $160 in court operations assessments (§ 1465.8), $120 in criminal conviction assessments (Gov. Code, § 70373), and $1,300 in sex offender fines (§ 290.3). This timely appeal followed on October 23, 2024.