People v. Barnett

• Court: California Court of Appeals
• Writing for the Court: GOODING, J.
• Docket Number: G062761
• Decision Date: 02 October 2024
• Citation: People v. Barnett, G062761 (Cal. App. Oct 02, 2024)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. KAMYRON DEJON BARNETT et al., Defendants and Appellants.

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THE PEOPLE, Plaintiff and Respondent, v. KAMYRON DEJON BARNETT et al., Defendants and Appellants.

G062761

California Court of Appeals, Fourth District, Third Division

October 2, 2024

NOT TO BE PUBLISHED

Appeal from judgments of the Superior Court of Riverside County No RIF1901406 Bernard Schwartz, Judge. Affirmed in part reversed in part and remanded.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Kamyron Dejon Barnett.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Desmond Elijah Ochoa.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles A. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOODING, J.

Defendants Kamryon Dejon Barnett and Desmond Elijah Ochoa were each found guilty of two counts of first degree murder and one count of premeditated attempted murder. The jury also found true three gang special circumstance allegations and a gang-related firearm enhancement charged as to each of the three counts. At a later bifurcated phase of the trial, the jury found true a gang enhancement charged as to each count. Barnett and Ochoa were each sentenced to 20 years in prison plus two consecutive terms of life without the possibility of parole, plus 57 years to life. They timely appealed their judgments, asserting multiple errors.

As to Ochoa, we reverse for prejudicial instructional error and remand for retrial. As to Barnett, we agree the prosecutor, Kimberly Melissa Degonia, committed prosecutorial error in some respects, but based on the entire record, conclude it was not prejudicial and affirm the judgment as to Barnett.

STATEMENT OF FACTS

I. THE MURDERS

On March 7, 2018, while standing outside a car in the parking lot of a fast-food restaurant in Moreno Valley, brothers Jeremiah and Elijah Asencio, ages 17 and 20, respectively, were killed in a drive-by shooting (the murders). B.S., a friend of Jeremiah and Elijah who was standing by the car with Jeremiah and Elijah, escaped unharmed.

A motorist called 911 at 8:17 p.m. to report the shooting. The motorist said he saw shots fired from the passenger side of a black or gray Dodge Caliber in the parking lot of the fast-food restaurant about three or four minutes earlier. He told the dispatcher the direction the car was heading as it left the parking lot. At trial, the motorist testified he saw flames coming out of the barrel of a gun and heard four or five "pretty consistent" shots.

The survivor, B.S., ran to Jeremiah and Elijah's house, which was nearby, and told their mother they had been shot and were dead. Later that night, B.S. told investigating officers he thought the shooter was a young man named J.W.

J.W. was a member of Sex Cash, a gang on the east side of Moreno Valley. Lavish Goons is a subset of Sex Cash. Sex Cash and Lavish Goons (collectively Sex Cash/Lavish Goons) were, at the time of the murders, the gangs primarily affiliated with the east side of Moreno Valley. Their rivals were Wild Flax and Edgemont, two gangs associated with the west side of Moreno Valley. B.S. was a Wild Flax gang member.

The day before the murders, J.W. had been involved in a physical altercation with three or four Wild Flax members at a smoke shop in territory claimed by Wild Flax. He believed B.S. was one of the Wild Flax members involved in the altercation.

Based in part on B.S.'s identification of the shooter, the investigating officers detained J.W. and brought him in for questioning on March 9, 2018. The questioning continued into the early morning hours of March 10. J.W. did not admit to the murders; instead, he told the investigating officers Ochoa, a fellow Sex Cash/Lavish Goons member, was the driver of the Dodge Caliber and J.C., also a Sex Cash/Lavish Goons member, was the shooter.

March 7, the date of the murders, is an important date for Sex Cash/Lavish Goons members. March 7 was the birthday of Christian White, nicknamed Ace, who was shot and killed in 2014, allegedly by a Wild Flax gang member. Every year on March 7, Sex Cash/Lavish Goons members celebrate "Ace Day" in memory of Ace's death.

During questioning, J.W. told the investigating officers that on March 7, 2018, he was with other Sex Cash/Lavish Goons members at an apartment complex (the Apartments) for an Ace Day gathering. He said he, Ochoa, and J.C. were at the Apartments during the gathering, smoking marijuana for 15 to 20 minutes in a stolen Dodge Caliber along with Barnett and M.J., two other Sex Cash/Lavish Goons members. When the marijuana was gone, J.W. got out of the Dodge Caliber. He did not remember who else got out of the Dodge Caliber with him, but he told the investigating officers he saw Ochoa drive away from the Apartments in the Dodge Caliber and return to the Apartments sometime later. He said after Ochoa came back, Ochoa and J.C. directed M.J. to take the Dodge Caliber and dump it. J.W. told the investigating officer that shortly after the Dodge Caliber returned to the Apartments, he drove J.C. home from the Ace Day gathering. During the drive, J.C. said he had shot Jeremiah and Elijah.

Videos from various CCTV cameras confirmed the shooter was in a Dodge Caliber. Through the videos, the investigating officers were able to track the car from the Apartments, through the murders, and back to the Apartments. According to the video evidence, the Dodge Caliber arrived at the Apartments at about 7:27 p.m. and left the Apartments at about 8:00 p.m. The videos followed the Dodge Caliber through the streets until it pulled into a gas station near the site of the murders at 8:07 p.m. Video from inside the convenience store attached to the gas station showed J.C., whose face is clearly visible, pay for gas at the counter. The Dodge Caliber pulled out of the gas station at 8:09 p.m., and entered the parking lot of a fast-food restaurant at 8:15 p.m. As the Dodge Caliber moved through the parking lot, it passed a silver car with three figures standing by it. A second later, two of the three figures by the silver car fell to the ground and the third figure ran toward the restaurant. The Dodge Caliber then exited the parking lot and returned to the Apartments, arriving around 8:25 p.m. Seven minutes later, the Dodge Caliber left the Apartments.

The day before the murders, March 6, 2018, a Dodge Caliber was stolen from a home in Moreno Valley. On March 9, 2018, two days after the murders, the owner of the stolen Dodge Caliber discovered his car in the parking lot of a middle school near the site of the murders. The owner called investigating officers, who came and took possession of the Dodge Caliber, in which they discovered M.J.'s telephone.

Based on J.W.'s identification of Ochoa as the driver and J.C. as the shooter, the investigating officers served 16 search warrants for various social media and telephone accounts, including accounts belonging to Ochoa, Barnett, J.C., J.W., B.S., and others. Much of the evidence presented at trial came from the material produced in response to the search warrants.

In September 2018, Ochoa and Barnett, who had become suspects following review of the social media and telephone account materials, were arrested. Each was charged with two counts of willful, deliberate, premeditated first degree murder for the killings of Jeremiah and Elijah (Pen. Code § 187, subd. (a)^[1] [counts 1 &2]) and one count of attempted premeditated murder for the attempted murder of B.S. (§§ 664, 187, subd. (a) [count 3]). Counts 1 and 2 included three gang-related special circumstances-murder to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), murder by discharge of a firearm from a vehicle (§ 190.2, subd. (a)(21)), and commission of multiple first degree murders (§ 190.2, subd. (a)(3)) (collectively, gang-murder special circumstances)). Counts 1, 2, and 3 also included gang-related firearm sentencing enhancement allegations (§ 12022.53, subds. (c), (d), (e) &(g) (collectively gang-related firearm enhancements)), and gang sentencing enhancement allegations that the murders and attempted murder were committed "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members" (§ 186.22, subds. (b)(1) &(5) (gang enhancements)).

Barnett and Ochoa were tried together. Both were convicted of two counts of first degree murder and one count of attempted murder. The jury found true the gang-murder special circumstances and gang-related firearm enhancements for Barnett and Ochoa on each count. Later, in the bifurcated phase of the trial, the jury found the gang enhancements true for Barnett and Ochoa on each count.

II. EVIDENCE LINKING BARNETT TO THE MURDERS

The evidence presented at trial to link Barnett to the murders included DNA analysis providing very strong support for the proposition that Barnett contributed to the DNA found on the interior rear passenger door handle of the Dodge Caliber. The prosecutor also introduced evidence of multiple text messages between Barnett and others in the year preceding the murders including: (1) a March 2017 text message in which Barnett told J.C. he would need to fight or kill a rival gang member in order to be a member of Sex Cash/Lavish Goons;^[2] (2) a January 6, 2018 text conversation between Barnett and a fellow gang member in which Barnett sent a photograph of bullets he just acquired;^[3] (3) a February 5, 2018 text conversation between Barnett and Ochoa in which Barnett reported B.S. had been disrespecting Sex Cash/Lavish Goons; (4) a February 6, 2018...