People v. Johnson

THE PEOPLE, Plaintiff and Respondent, v. CONRAD J. JOHNSON, JR. et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. LAM QUOC LUONG, Defendant and Appellant.

C076191

C076607

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

June 3, 2020

ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 3, 2020, be modified as follows:

1. On page 5, add the following sentence to the end of the first paragraph before the Factual and Procedural Background:

On remand, Luong and Do are allowed to make a record of information relevant to their respective future youth offender parole hearings.

2. On page 15, add the following sentence to the end of the first paragraph before part III of the Discussion:

This evidence of corroboration likewise rebuts Luong's claim that there was insufficient evidence to support his convictions because Luu's testimony was not corroborated.

3. On page 52, after part XVII, add the following parts XVIII and XIX:

XVIII

Franklin Remand

In supplemental briefs, Luong and Do ask for the case to be remanded pursuant to People v. Franklin (2016) 63 Cal.4th 261 so they can each make a record of information for their respective youth offender parole hearings in the future. The Attorney General concedes the point. We agree. Luong and Do will be allowed to make their Franklin records on remand.

XIX

Dueñas

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Randall, Luong, Do, and Villanueva contend remand is required for an ability to pay hearing with respect to the restitution fine and court operations and conviction assessments.

We join the courts concluding Dueñas was wrongly decided and hold that defendants were not entitled to an ability to pay hearing for the conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks(2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060; People v. Caceres (2019) 39 Cal.App.5th 917, 920.) We therefore reject the contentions.

4. On page 53, add the following sentence to the end of the Disposition:

On remand, Luong and Do are entitled to present information in accordance with People v. Franklin (2016) 63 Cal.4th 261.

This modification changes the judgment. Appellants' petitions for rehearing are denied.

/s/_________

BLEASE, Acting P. J.

I concur:

/s/_________

DUARTE, J.

MAURO, J., Concurring and Dissenting.

I concur in the modification order except to the extent it adds a new part XIX to the Discussion, pertaining to fines and assessments. As to that portion of the modification, I dissent. Under the circumstances, the opinion filed on June 3, 2020, is modified to add the following concurring and dissenting opinion:

MAURO, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part XIX of the Discussion, pertaining to fines and assessments, as to which I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider Randall, Luong, Do, and Villanueva's ability to pay the imposed fines and assessments.

/s/_________

MAURO, J.

NOT TO BE PUBLISHED

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

(Super. Ct. No. 12F01431)

This is a gang case involving three Asian gangs. Their members are known to carry guns. From this and other facts about the gangs and their members, the courts draw inferences relating to their collective criminal behavior. In this case, the Viet Pride and Khome Zong Tong (KZT) gangs are bitter rivals of the Hop Sing street gang. On January 12, 2012, Kao Saechao, a Hop Sing gang member, entered the Pure Water store in the Savings Place shopping center in South Sacramento, a gathering place for KZT and Viet Pride members, who consider the center their territory. A minute later, defendants Jhordan Villanueva and Danny Dien Do, Viet Pride gang members, appeared outside the store and were joined minutes later by defendants Roderick Bernard Randall and Conrad J. Johnson, Jr., KZT gang members. Villanueva and Do and later Randall challenged Saechao to come outside and fight. Saechao, fearing there would be a shootout if he left the store, called other Hop Sing members for help. They arrived shortly thereafter in a red Honda. Shots were fired at the Honda from two directions by defendants Lam Quoc Luong and Johnson and two of its occupants were hit, one (S.V.) in the leg and the other (J.T.) in the head. All defendants challenge the jury's findings of guilt of the attempted murders of S.V. and J.T., Luong and Johnson as direct perpetrators, and Villanueva, Do, and Randall as aiders and abettors pursuant to a natural and probable consequences theory. We shall affirm these convictions.

A jury found defendants Luong, Villanueva, Do, Randall, and Johnson guilty of the attempted murders of J.T. (count one), S.V. (count two), J.S. (count three), and K.S. (count four) (Pen. Code, §§ 664, 187, subd. (a)),¹ and Randall guilty of possessing MDMA² for sale (Health & Saf. Code, § 11378; count five). The jury also found true allegations that: counts one through four were committed willfully, deliberately, andwith premeditation (§ 664, subd. (a)); a principal intentionally and personally used a firearm in the commission of counts one through four (§ 12022.53, subds. (b), (e)(1)); a principal intentionally and personally discharged a firearm in the commission of counts one through four (§ 12022.53, subds. (c), (e)(1)); a principal personally caused great bodily injury as defined in section 12022.7 to a person other than an accomplice in the commission of counts one and two (§ 12022.53, subds. (d), (e)(1)); and counts one through five were committed for the benefit of, at the direction of, or in association with, a criminal street gang, to wit, KZT, with the specific intent to promote, further, or assist in criminal conduct by said gang members (§ 186.22, subd. (b)(1)).

In a bifurcated proceeding, the trial court found true allegations that Johnson and Randall each served a prior prison term within the meaning of section 667.5, subdivision (b), and had been convicted of a serious felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and section 667, subdivision (a).

Luong was sentenced to an aggregate term of 64 years to life in state prison, consisting of two consecutive terms of seven years to life on counts one and two, plus two consecutive terms of 25 years to life for the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1). The sentences on counts three and four were run concurrent.

Villanueva and Do were sentenced to aggregate terms of 32 years to life in state prison, consisting of seven years to life on count one, plus a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The sentences on counts two, three, and four were run concurrent.

Randall was sentenced to an aggregate term of 88 years to life in state prison, consisting of two consecutive terms of 14 years to life on counts one and two (seven years, doubled for the prior strike), plus two consecutive terms of 25 years to life on the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1), plus two consecutive terms of five years for the prior serious felony enhancements. The sentenceson counts three, four, and five were run concurrent, and the prior prison term enhancements were stricken.

Johnson was sentenced to an aggregate term of 83 years to life in state prison, consisting of two consecutive terms of 14 years to life on counts one and three (seven years, doubled for the prior strike), plus a consecutive 25 years to life on the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1) on count one, plus a consecutive 20 years on the firearm enhancement under section 12022.53, subdivisions (c) and (e)(1) on count three, plus two consecutive terms of five years for the prior serious felony enhancements. The sentences on counts two and four were run concurrent, and the prior prison term enhancements were stricken.

Defendants raise a number of claims on appeal, some of them overlapping. In particular, they contend that the trial court committed various evidentiary, instructional, and sentencing errors. They also assert that there is insufficient evidence to support their convictions and that the case must be remanded to allow the trial court to exercise its newly acquired discretion to strike the firearm enhancements imposed pursuant to section 12022.53.

We shall conclude that Randall's conviction for possession of MDMA for sale must be reversed because there is insufficient evidence that he knew of the drug's presence or exercised dominion and control over the same, and shall modify his and Luong's judgments to provide for additional days of presentence custody credit consistent with this opinion. We shall affirm the judgments in all other respects, but shall remand the case to allow the trial court to exercise its discretion as to whether to strike any of the firearm enhancements and, if appropriate, to resentence defendants. Should the trial court decline to...