People v. Johnson

• Decision Date: 01 January 2013
• Docket Number: 2d Crim. No. B241044
• Citation: 164 Cal.Rptr.3d 505,221 Cal.App.4th 623
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ryan James JOHNSON, Defendant and Appellant.

221 Cal.App.4th 623

164 Cal.Rptr.3d 505

The PEOPLE, Plaintiff and Respondent,

v.Ryan James JOHNSON, Defendant and Appellant.

2d Crim. No. B241044

Court of Appeal, Second District, Division 6, California.

Filed 11/19/2013

See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 169.

Barry T. LaBarbera, Judge, Superior Court County of San Luis Obispo, (Super.Ct. No. F435613) (San Luis Obispo County)

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Peggy G. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

YEGAN, J.

The “mastermind” of an armed home-invasion robbery who sends his accomplices to do his bidding can be convicted of first degree murder if one of his accomplices engages in provocative conduct and the victim kills in reasonable response to that conduct. In these circumstances malice is implied by law and imputed to the “mastermind” despite his absence from the scene of the crime.

Ryan James Johnson appeals from the judgment entered after his conviction by a jury of first degree murder (Pen.Code, §§ 187, subd. (a), 189),¹ first degree residential burglary (§§ 459, 460, subd. (a)), conspiracy to commit robbery (§§ 182, subd. (a)(1), 211), and two counts of first degree residential robbery. (§§ 211, 212.5, subd. (a).) The jury found true firearm enhancements within the meaning of section 12022, subdivision (a)(1). Appellant was sentenced to prison for 26 years to life. The murder conviction was based on the provocative act murder doctrine. In People v. Baker–Riley (2012) 207 Cal.App.4th 631, 143 Cal.Rptr.3d 737, we affirmed the first degree murder conviction of appellant's codefendant and accomplice, Jesse Baker–Riley. Appellant and Baker–Riley were separately tried.

Appellant contends that (1) the evidence is insufficient to support his conviction of first degree murder, (2) the trial court erroneously instructed the jury, (3) the trial court abused its discretion in admitting evidence of a prior residential robbery, and (4) his sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. We affirm.

Facts

Peter Davis lived in Los Osos. He had a physician's recommendation for medical marijuana and grew marijuana plants in his backyard. A narcotics expert testified that he had a sufficient quantity of marijuana to be a supplier to people seeking to purchase it.

Appellant knew Davis and on July 18, 2009, he told Janine Lindemans that he “and his homies are taking care of something” and “ ‘[w]e are going to come up big.’ ” Appellant explained “that they were taking care of somebody that was selling pot or dope ... in our town, meaning Los Osos, and that the person had no business doing business like that in [ ]our town, and that [appellant] ... [and] his homies were basically doing a home invasion.” Lindemans asked, “ ‘Are you talking about a home invasion robbery?’ ” Appellant replied, “ ‘Well, yeah, I guess, if you want to call it that.’ ” Appellant identified one of his “homies” as “Kelsey” (Kelsey Alvarez). Appellant said that they were going to “take ... Pete's [Peter Davis's] pot, and that they had a gun.” They intended to use the gun during the robbery. Appellant boasted “that he was running things,” and he appeared to be “pretty proud of himself that he was the shot caller.”

That same day Peter Davis and his friend, Dylan Baumann, were inside Davis's residence when they heard a knock on the door. Davis opened the door and saw two persons whom he did not recognize. They were Kelsey Alvarez and Jesse Baker–Riley. Baker–Riley “pulled out a large firearm and put it in [Davis's] face.” Baker–Riley and Alvarez entered the residence. Baker–Riley said to Baumann, “[S]it down or I'll shoot you.” Baumann testified that Baker–Riley “put his gun on my kneecaps and told me he was going to shoot off my kneecaps.”

Baker–Riley demanded cash and marijuana. Baumann emptied his pockets of all items, including a cell phone. Baker–Riley took the cell phone and put it in his pocket.

Baker–Riley “pointed to a pile of vaporized pot that was on the table.” He ordered Davis to wrap it in a paper towel and give it to him. Davis complied with the order. Baker–Riley was “clicking the safety” of his gun “on and off” and was “taunting” Davis and Baumann. He made them look at the gun, threatened to kill them if they “did anything,” and said, “I'm quick on the trigger, homie.” Baker–Riley warned: “ ‘I'm a fucking thug. You don't want [ ] to fuck with me, homie.’ ” He asked Baumann, “You ever seen ‘Pulp Fiction,’ homie?” ²

Baker–Riley saw a fortune cookie on a table. He pointed the gun at Davis and said: “ ‘Open that fortune cookie, homie.’ ” Davis opened the cookie and, at Baker–Riley's direction, read the fortune inside. The fortune said: “ ‘There will be many upcoming opportunities. Take advantage of them.’ ” Baker–Riley laughed and “made a statement about how he was taking advantage of us.” Baker–Riley ate some food that was on the table and, at gunpoint, forced Baumann and Davis to eat some of the food. Baker–Riley “kept asking, Where is the grass? Where is the marijuana? Where is your grass at? Where do you keep all your weed?” Davis “kept repeating that [he] didn't have anything.”

Baker–Riley saw marijuana drying in a back bedroom. He said, “ ‘Oh, here is their f-ing weed. Here is their grass.’ ” Baker–Riley pointed his gun at Davis and ordered him to walk into the back bedroom and sit on the bed. Davis complied with the order. He pleaded: “ ‘Don't kill me. I'm not going to do anything. Take what you want. Just don't kill me.’ ” Baker–Riley did not respond. Davis thought that he “was going to die,” that Baker–Riley “was separating me to kill me.”

Davis saw his own firearm next to the bed. He picked it up, aimed at Baker–Riley, and started firing. One of the bullets struck Alvarez in the chest and killed him.

Provocative Act Murder Doctrine

“Under the provocative act [murder] doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citation.] ‘In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.’ [Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 655, 142 Cal.Rptr.3d 893, 278 P.3d 1242.)

“Provocative act murder has both a physical and a mental element which the prosecution must prove beyond a reasonable doubt. [Citation.] The physical element is satisfied when the defendant, or a surviving accomplice in the underlying crime, commits an act, the natural and probable consequence of which is the use of deadly force by a third party. [Citations.] When the defendant or surviving accomplice acts in such a manner and the third party kills in response, the provocateur can be said to have proximately caused the resulting death notwithstanding the intervening use of deadly force by the third party. [Citations.] And a participant in the underlying crime who does not actually commit a provocative act himself may nevertheless be vicariously liable for the killing caused by his provocateur accomplice based upon having aided and abetted commission of the underlying crime. [Citations.] Thus, under the provocative act doctrine, a defendant may be vicariously liable for the provocative conduct of his surviving accomplice in the underlying crime. [Citation.]” (People v. Mejia (2012) 211 Cal.App.4th 586, 603, 149 Cal.Rptr.3d 815.)

As to the mental element of provocative act murder, the People must prove “that the defendant personally harbored ... malice.” ( People v. Gonzalez, supra, 54 Cal.4th at p. 655, 142 Cal.Rptr.3d 893, 278 P.3d 1242; accord, People v. Concha (2009) 47 Cal.4th 653, 663, 101 Cal.Rptr.3d 141, 218 P.3d 660.) But, malice may be implied: “[T]he central inquiry in determining criminal liability for a killing committed by a resisting victim or police officer is whether the conduct of a defendant or his accomplices was sufficiently provocative of lethal resistance to support a finding of implied malice.” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 583, 91 Cal.Rptr. 275, 477 P.2d 131.)

Appellant contends that the evidence is insufficient to support his conviction for murder because “he did not personally harbor malice.” “[T]he evidence showed at best that [he] harbored the intent to commit an armed robbery.” To credit this contention we would have to hold, as a matter of law, that malice cannot be imputed to the “mastermind” of an armed home-invasion robbery if he is not personally present at the scene of the murder. We will not do so.

Based on Taylor v. Superior Court, supra, 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131 (Taylor ), the evidence is sufficient. Taylor's accomplices, Daniels and Smith, committed a robbery inside a liquor store. Taylor “was waiting outside ... in a getaway car.” (Id., at p. 581, 91 Cal.Rptr. 275, 477 P.2d 131.) During the robbery, the victims shot Smith in reasonable response to Daniels's provocative acts. The Taylorcourt concluded that “the evidence supported the magistrate's finding that reasonable and probable cause existed to charge [Taylor] with first degree murder.” (Id., at p. 585, 91 Cal.Rptr. 275, 477 P.2d 131.) The court reasoned: “If the trier of fact concludes that under the particular circumstances of the instant case Smith's death proximately resulted from acts of [Taylor's] accomplices done with conscious disregard for human life, the natural consequences of which were dangerous to life, then [Taylor] may be convicted of first degree murder.” (Id., at p. 583, 91 Cal.Rptr. 275, 477 P.2d 131.)

Thus, our Supreme...