People v. Guinn

• Citation: 33 Cal.Rptr.2d 791,28 Cal.App.4th 1130
• Decision Date: 26 September 1994
• Docket Number: No. E012326,E012326
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ana Al-Rad Levi GUINN, et al., Defendants and Appellants.

Page 791

33 Cal.Rptr.2d 791

28 Cal.App.4th 1130

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ana Al-Rad Levi GUINN, et al., Defendants and Appellants.

No. E012326.

Court of Appeal, Fourth District, Division 2, California.

Sept. 26, 1994.

Certified for Partial Publication ^*

As Modified Oct. 11, 1994.

Review Denied Jan. 5, 1995.

[28 Cal.App.4th 1134] Michael B. McPartland, Petaluma, under appointment by the Court of Appeal, for defendants and appellants Ana Al-Rad Levi Guinn.

Cliff Gardner, San Francisco, under appointment by the Court of Appeal, for defendant and appellant Jamal Hussein Johnson.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

DABNEY, Acting Presiding Justice.

Defendants and appellants Ana Al-Rad Levi Guinn and Jamal Hussein Johnson appeal their convictions of murder (Pen.Code, § 187) and robbery (Pen.Code, § 211). Defendant Guinn was also charged with a special circumstance allegation that the murder was committed during the commission of a robbery. The special circumstance was found true. (Pen.Code, § 190.2, subd. (a)(17)(i).) An enhancement allegation that each defendant had personally used a deadly weapon (baseball bat) in the commission of the offense was found true as to defendant Guinn, but not true as to defendant Johnson. (Pen.Code, §§ 1192.7, subd. (c)(23), 12022, subd. (b).) Defendant Johnson appeals.

Defendant Guinn, who was sentenced to life without possibility of parole on the special circumstance murder (LWOP), has appealed, primarily raising sentencing issues. Although Guinn was a minor at the time the events in this case occurred, he was found to be unfit for juvenile court proceedings on November 28, 1990. (Welf. & Inst.Code, § 707, subd. (b).)

FACTS

The charges arose out of the senseless bludgeoning to death of a 20-year-old Mexican man, Carlos Montes Ortega. ¹

I. Prosecution's Case

On October 19, 1990, Benita Hill ² was 13 years old. On one or two occasions before October 19, 1990, she had gone to Riverside with her friend, 15-year-old Barbara "Peaches" Thomas. She had met some of Thomas's friends and even considered herself the girlfriend of defendant Jamal "Pinky" Johnson. Hill and "Peaches" Thomas went by bus to Riverside after school on October 19, 1990.

The two girls went to a bowling alley near 11th Street in Riverside, where they met "Peaches" Thomas's boyfriend, Tony "Kink Nasty" Avery, and another boy. After 15 to 20 minutes, the young people went to some apartment buildings on 11th Street. There was a gated courtyard between two of the apartment buildings where Thomas, Avery and their circle of friends liked to "hang out." They "hung out" there on that day for several hours, well into the evening.

Jesse Witt ³ had a first-floor apartment in one of the buildings facing the courtyard. He was able to see the group of young people in the courtyard. Other young people joined them, including defendant Guinn, who went by the moniker "Buckshot," and defendant Johnson. Defendant Guinn was carrying a wooden baseball bat. He played around with the bat, banging it on the railing of the stairs inside the courtyard, or on the concrete steps, and smacking it into his hand. Defendant Guinn called the baseball bat his "little brother." While defendant Guinn was playing with the bat, Benita Hill heard him say he wanted to kill someone. Some of those present left for a period of time and returned with gin, orange juice and some Old English malt beer. Defendants and others were drinking alcohol until it was finished.

In the meantime, the victim, 20-year-old Carlos Montes Ortega, had come home from work to the apartment complex, where he shared an apartment with his brothers. Ortega had been in the United States only one month and spoke little English. Ortega and his brothers had dinner at approximately 7 p.m. on October 19, 1990. After dinner, Ortega decided to get the mail from the complex's mailboxes, located on 11th Street.

As Ortega walked toward the mailboxes, Valerine Warren ⁴ was on the balcony-walkway in front of her apartment in another apartment building on 11th Street. Warren's apartment was on the second floor and she commanded a view of 11th Street from the balcony-walkway. Warren could see, among other things, the group of mailboxes for the whole complex, which were located in front of her apartment. Warren knew defendants Guinn and Johnson because she had been introduced to them at the apartment of a neighbor, Beverly Fuller.

About the same time that Ortega was going to the mailboxes, approximately 7:30 p.m., defendant Guinn asked defendant Johnson to walk with him. They left the courtyard area between two of the apartment buildings and walked out onto 11th Street. Benita Hill went with them; she walked with defendant Johnson, holding his hand, a little behind defendant Guinn. Defendant Guinn still had the baseball bat with him. Defendants Guinn and Johnson, and Benita Hill, walked toward the apartment complex mailboxes; Ortega was approaching from the opposite direction. Benita Hill testified that defendant Guinn turned to defendant Johnson and she heard Guinn ask Johnson if he wanted "to jack this man." Defendant Johnson responded, "Yes" or "Yeah." The expression "to jack" means to rob in street parlance. Benita Hill then saw defendant Guinn walk up to Ortega, still carrying the baseball bat. Defendant Guinn asked Ortega, "Do you have any money?" Ortega answered, in broken English, that he did not have any money. Defendant Guinn then pushed Ortega in the chest; Ortega stumbled back, then turned and ran. Guinn chased Ortega and caught up with him near a tree by one of the apartment buildings. Defendant Guinn raised the bat and struck Ortega in the head. Ortega fell to the ground. Defendant Guinn hit Ortega with the bat several more times as Ortega lay on the ground, trying to protect himself with his hands. Eventually, "Kink Nasty," Tony Avery, pulled defendant Guinn away, telling him to "get out of here." Benita Hill saw defendant Johnson bend over the victim's body and stand up with a wallet in his hands. Defendant Guinn asked how much money there was. Defendant Johnson replied, "Two dollars." Benita Hill saw defendant Johnson fold up the two dollars and put them in his pocket.

Valerine Warren also described the events she saw from her balcony-walkway. Warren could see defendants Guinn and Johnson, and Benita Hill, as they first walked past Ortega. She then heard one of the men say, "What's up, cuz?" to Ortega. Warren then saw defendant Guinn, holding the bat, and defendant Johnson chase after Ortega. Benita Hill was following behind them. Defendants Guinn and Johnson caught up to Ortega near a tree. Ortega turned and was backing away. Warren saw defendant Guinn raise the bat and strike Ortega in the upper part of his body. Ortega fell and defendant Guinn continued to beat him with the bat. Ortega was trying to cover himself with his hands. Warren saw defendant Johnson also hit Ortega.

Another member of defendants' social group, Anthony "Ant Dog" Eddington, took the bat from defendant Guinn. Jesse Witt, who could hear the cracking sound of the bat hitting Ortega's head from his apartment, saw "Ant Dog" run into the courtyard and throw the baseball bat on a carport roof. When defendant Guinn left the scene, his pants were covered in blood. Defendant Johnson had blood on the band of his wrist watch.

Ortega's skull was fractured by the blows; he later died of the injuries. The beating was so savage that treating medical personnel thought that Ortega had a "through and through" gunshot wound to the head, or that he had been attacked with a machete.

The next day, October 20, 1990, Benita Hill saw "Peaches" Thomas. Benita Hill told Thomas it was a shame that Ortega had been killed "for two f---ing dollars." On the same day, Valerine Warren saw defendant Guinn with Beverly Fuller. Warren overheard defendant Guinn tell Beverly Fuller that he "beat up a guy last night" and that it "didn't matter because he'd done three more." Someone called police and reported that the baseball bat was on top of one of the carports. A police officer recovered the bat, which had blood stains on it.

Although initially afraid, Valerine Warren did ultimately contact the police about the killing. On the strength of Warren's evidence, defendants were taken into custody and questioned separately.

Defendant Guinn at first said he was not there when the beating happened, saying that he had "got people to say I wasn't there." Defendant Guinn maintained initially that he did not know anything about the killing except what Beverly Fuller had told him, and that his girlfriend had taken him to meet his mother at the home of one of his mother's friends at 6:30 p.m. on the day of the killing, or that he was at home. When the investigating officer confronted defendant Guinn with statements that she knew he was involved, he eventually changed his story saying that he had been present, but that he had not done anything to anyone. He described the incident, saying that he had been talking and drinking with friends near the gated area, and two of his "home boys" had beaten the victim, but he denied personally touching the victim.

When the investigating officer again accused defendant Guinn of lying, and told him that he had been seen with defendant Johnson and Benita Hill, defendant Guinn changed his story again. He denied hitting the victim with the bat, but admitted he "was gonna jack" the victim--"I was gonna beat him up and take his money." Defendant Guinn admitted telling the victim, "Give me your money," and that the victim had answered that he did not speak English. Defendant Guinn hit the man and then chased him when he ran. Defendant Guinn admitted hitting the victim, but claimed he had not hit the victim...