People v. Johnson

THE PEOPLE, Plaintiff and Respondent, v. KEVIN DEWAYNE JOHNSON et al., Defendants and Appellants.

B231891

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Dated: December 4, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BA347163)

APPEALS from judgments of the Superior Court of Los Angeles County, Craig Elliott Veals, Judge. Affirmed in part as modified, reversed in part and remanded for resentencing.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Dewayne Johnson.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant George Leon.

Law Office of Ravis & Travis, Mark Ravis and Karen Travis for Defendant and Appellant Keywon Clarke.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Lawrence M. Daniels, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendants, Kevin Dewayne Johnson, Keywon Clarke and George Leon, of three counts of attempted willful, deliberate and premeditated murder. (Pen. Code,¹ §§ 187, subd. (a), 664.) The jury also convicted Mr. Johnson and Mr. Leon of three counts of assault with and personal use of a firearm. (§§ 245, subd. (a)(2), 12022.5, subd. (a).) As to each count, the jury found the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) As to each attempted murder count, the jury found a principal in the offense intentionally discharged a firearm. (§ 12022.53, subds. (d) and (e)(1).) Mr. Clarke and Mr. Leon were juveniles (16 years old at the time of the offenses) who were tried as adults. Each defendant was sentenced to 96 years to life in state prison. We reverse in part, affirm as modified in part, and remand for resentencing.

II. THE EVIDENCE

A. The Firearm Assault

The victims and the assailants were all members of rival gangs. On July 22, 2008, Shaundre Woods was walking on 64th Street in Los Angeles, on his way to a store on Normandie Avenue.² Anthony Vance, Mr. Woods's brother, was riding a bicycle. A fellow gang member, Roger Winters, was riding on the bicycle handlebars. They were confronted by defendants, rival gang members who were outside their gang territory. Mr. Leon and Mr. Johnson were armed. Mr. Woods recognized Mr. Clarke as a rivalgang member. Mr. Woods shook Mr. Clarke's hand. There had been several recent altercations between Mr. Clarke and Mr. Woods's brother, Mr. Vance. Mr. Clarke said, "[W]here are you all niggers from?" Defendants displayed gang signs with their hands. Mr. Clarke said, "Get them niggers" and "shoot." Mr. Woods, Mr. Vance and Mr. Winters all ran in the same direction. Mr. Leon and Mr. Johnson opened fire on Mr. Woods, Mr. Vance and Mr. Winters as they fled. Mr. Vance suffered multiple life-threatening gunshot wounds. Defendants ran back into their own gang's territory.

Officer Christopher Valento and his partner, Officer Rachel Rodriguez, were on undercover patrol in the area. They saw a group of four African-American males running in a direction away from the shooting scene—Mr. Leon, Mr. Johnson and two others. Mr. Leon and another man were holding their waistbands as they ran, as if they were trying to maintain a grip on something. A fifth African-American, Mr. Clarke, was riding a bicycle. It was still daylight and the men passed within eight feet of the officers. The officers, who were in an unmarked car, followed the men to a residence on 62nd Street. While enroute, they heard a radio call about a shooting at 64th Street and Raymond Avenue. Mr. Leon and Mr. Johnson went to the rear yard of the 62nd Street residence. Three other men, including Mr. Clarke, continued eastbound on 62nd Street towards Vermont Avenue. They were subsequently detained at 62nd Street and Vermont Avenue.

Officer Brian Peel detained Mr. Leon and Mr. Johnson in the rear yard of the 62nd Street home. Mr. Leon was wearing a white tank top and blue jeans. Mr. Johnson was wearing a white tank top and black shorts. Officer Peel recovered a fully functional six-shot .22-caliber revolver from a bush. The bush was not more than five feet from where Mr. Leon and Mr. Johnson had been standing. There were three expended cartridges and one live bullet in the barrel. Neither a bullet fragment found at the scene of the shooting nor the two bullets recovered during Mr. Vance's surgery were fired from the .22-caliber revolver. The bullets that struck Mr. Vance could have been fired from a different revolver.

B. The Witnesses

1. Mr. Woods

Mr. Woods appeared at trial but refused to cooperate as a witness. He admitted, however, that in the past he had been a gang member. Officer Hector Chairez had interviewed Mr. Woods on July 25, 2008, shortly after the assault. Officer Chairez described this conversation. Mr. Woods was on his way to a store with Mr. Vance and Mr. Winters when they encountered Mr. Clarke and two others. Mr. Woods said Mr. Clarke was riding a bicycle. Mr. Woods knew Mr. Clarke but only by a gang moniker. Mr. Woods knew Mr. Clarke was from a rival gang. Mr. Woods shook Mr. Clarke's hand. Mr. Clarke said, "[W]here are you all niggers from?" Mr. Clarke said, "Get them niggers." Mr. Woods realized they were about to be shot. Mr. Woods saw a .350 or .357 revolver. Officer Chairez showed Mr. Woods a photographic lineup. Mr. Woods identified Mr. Johnson as, "The guy that was shooting at us." Mr. Woods did not know Mr. Johnson's name. But Mr. Woods told Officer Chairez: "I know this face by heart. I remember his face."

2. Mr. Winters

Mr. Winters, who did not want to be a "snitch," was a reluctant witness at trial. He feared he would be harmed if he testified. But Mr. Winters admitted he was present when the assault occurred. When the shooting started, he turned and ran.

Officer Chairez had interviewed Mr. Winters on July 25, 2008. Mr. Winters identified Mr. Johnson as a person who fired shots. (At trial, he denied that the gunman was in the courtroom.) Mr. Winters identified Mr. Clarke as the person who said: "Shoot." Mr. Winters saw a man with a black revolver following them as they fled. When the gunfire stopped, the assailant continued to follow, pointing the gun at Mr. Winters. The assailant ran closer, attempting to fire his weapon. Mr. Winters couldsee the barrel spinning. The gunman fired five times. But all Mr. Winters heard was a repeated clicking sound. A firearms examiner, Officer Genaro Arredondo, testified it was possible the ammunition was faulty and did not detonate, causing the clicking sound.

3. Crystal Anguiano

Two neighbors witnessed the shooting—Crystal Anguiano and Yisina Chavez. When Sergeant Paul Rodriguez first arrived at the shooting scene, he overheard Ms. Anguiano talking with Ms. Chavez. Ms. Anguiano said she had seen the person who fired the shots. When Sergeant Rodriguez questioned Ms. Anguiano, she said she saw defendants and their victims arguing and heard them yelling obscenities at each other. She also told Sergeant Rodriguez she had observed the person who fired the shots. Sergeant Rodriguez drove Ms. Anguiano to field show-ups at two locations. Ms. Anguiano identified Mr. Leon as the person who fired the shots. She also identified Mr. Johnson as having been present. Ms. Anguiano identified Mr. Leon by his physical features and clothing. Additionally, she believed she had gone to school with Mr. Leon.

Officer Everardo Amaral interviewed Ms. Anguiano upon her return home following the field show-ups. Ms. Anguiano said she was on her porch when she saw two groups of African-American males approaching each other from opposite directions. They stopped in front of her house. They were displaying gang signs. She heard someone refer to a specific gang. She recognized Mr. Vance from the neighborhood. Mr. Vance and two others began to run. She saw Mr. Leon with a pistol in his hand. Mr. Leon shot at Mr. Vance. She recognized Mr. Leon because she had gone to school with him. He was wearing blue jeans and a white tank top. (As noted above, Mr. Leon was wearing blue jeans and a white tank top when he was apprehended.) Mr. Vance ran around a truck and into Ms. Chavez's yard. A bullet hit the back of the truck.

Officer Chairez interviewed Ms. Anguiano on August 1, 2008, one week after the shooting. Ms. Anguiano said there were four assailants. She described the person who fired the shots as an African-American male wearing a white tank top or muscle shirt andblue denim jeans. She said she heard one of the group say something like, "This is my hood." Someone was displaying gang signs. An African-American male wearing black basketball shorts and no shirt said: "Just do something. Just do it."

Ms. Anguiano was a reluctant witness at trial. She denied she had seen the face of the man who fired the shots. She testified she saw a gunman chase Mr. Vance and fire shots. Mr. Vance fell to the ground. The man with the gun stood over Mr. Vance, a foot or two away. The gunman continued to fire at Mr. Vance. Mr. Vance was moving on the ground, trying to avoid the bullets.

4. Yisina Chavez

At the time of the incident, Ms. Chavez told Sergeant Rodriguez she had witnessed an altercation between two groups of African-American males. They were displaying gang signs at each other and cursing. Ms. Chavez said she retreated into her house. She heard gunfire but did not witness the actual shooting. Sergeant Rodriguez drove Ms. Chavez to field show-ups at the two places where individuals had been detained. Ms. Chavez...