People v. Johnson

• Court: California Court of Appeals
• Citation: 197 Cal.Rptr.3d 353,243 Cal.App.4th 1247
• Decision Date: 14 January 2016
• Docket Number: A136124,A136120
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marvin Douglas JOHNSON, Jr., Defendant and Appellant. The People, Plaintiff and Respondent, v. Simon Thornton, Defendant and Appellant.

243 Cal.App.4th 1247
197 Cal.Rptr.3d 353

The PEOPLE, Plaintiff and Respondent,
v.
Marvin Douglas JOHNSON, Jr., Defendant and Appellant.

The People, Plaintiff and Respondent,
v.
Simon Thornton, Defendant and Appellant.

A136120
A136124

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

Filed January 14, 2016

Mark David Greenberg by appointment of the Court of Appeal, Attorney for Defendant and Appellant, Marvin Douglas Johnson, Jr.

Kyle Gee by appointment of the Court of Appeal, Attorney for Defendant and Appellant, Simon Thornton

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Nanette Winaker, Deputy Attorney General, Attorney for Plaintiff and Respondent People

Miller, J.

243 Cal.App.4th 1251

INTRODUCTION

On July 20, 2011, a car sped into a campsite at Lake Mendocino at about 60 miles an hour and skidded to a stop. Four men got out of the car: defendant Marvin Johnson, defendant Simon Thornton, AJ Schnebly and William (Buck) Crocker. Crocker, wearing a red bandana that covered his face from the nose down, ran towards the group at the campsite, and

197 Cal.Rptr.3d 359

with a gun in his hand, shouted for everybody to get down on the ground. Within minutes, Joe Litteral, who had been staying at the campsite, was shot to death and Brandon Haggett, another visitor, was shot and seriously wounded. It was stipulated at trial that a fingerprint lifted from the shotgun later collected in evidence belonged to Crocker, and it was undisputed at trial that defendants Johnson and Thornton, who were tried jointly, were not the shooters. Johnson and Thornton were tried on three counts: murder, attempted murder, and attempted kidnapping. The murder charge was based on two theories: first degree felony murder in connection with attempted robbery or attempted kidnapping, and second degree murder based on aiding and abetting another who acted with malice aforethought. Johnson and Thornton were convicted of first degree murder and attempted murder, and were acquitted of attempted kidnapping.

The defendants appealed, contending that (1) the trial court erred in instructing the jury pursuant to CALCRIM No. 335 that they were accomplices as a matter of law; and (2) the court erred in instructing the jury pursuant to CALCRIM No. 548 that the jury did not have to unanimously agree on a theory of murder. Johnson separately contended that the court erred in giving an instruction regarding voluntary intoxication pursuant to CALCRIM No. 404. Thornton separately argued that he was denied effective assistance of counsel and cumulative error compelled reversal. We held that the trial court erred in instructing the jury that it did not have to unanimously agree on a theory of murder where, as here, one theory of murder was first degree murder and the other theory was second degree murder, and that this error was prejudicial. We therefore conditionally reversed the first degree murder convictions and remanded the case to permit the district attorney to

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retry the cases or to accept a reduction of the murder convictions to second degree murder. We found the remaining grounds for appeal without merit.

The California Supreme Court granted the defendants' petitions for review and transferred the case back to this court with directions to vacate our prior opinion and reconsider the matter in light of the recently issued (People v. Banks (2015) 61 Cal.4th 788, 809–810, 189 Cal.Rptr.3d 208, 351 P.3d 330 (Banks ).) The specific page references in the Supreme Court's order focused our reconsideration on a point relevant to our discussion of implied malice as a theory underlying the defendants' murder convictions. As we will explain, we conclude that Banks does not apply to the issue presented here, and no change in our disposition of the case is necessary.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2011, Johnson and his wife, Deborah Cano, were homeless and living on the "outside" in a field in a tent in Mendocino County. They had a 12–year, troubled relationship that Cano described as "ups and downs, abusive, controlling." Johnson hit, beat and threatened her on many occasions and was also verbally and emotionally abusive. She was afraid of Johnson and many times tried to leave him. When she left he would send people to find her, or he would look for her himself. She could never get very far away from him, and "[s]o I never really had any out, no way out." They sometimes lived in Nebraska where she had family, but would regularly return to California, where they were frequently homeless.

According to Cano, Johnson was doing drugs and drinking and would be gone for several days at a time. In July 2011, Cano decided to get away from him. Initially,

197 Cal.Rptr.3d 360

she went to AJ Schnebly's house. She didn't stay with Schnebly, however, because he was Johnson's friend and that made her feel unsafe. She "took off walking" until she ran into Joe Litteral, who was also homeless. She and Johnson had hung out with Litteral in the past; he was an "acquaintance that became a friend." According to Cano, Litteral and Johnson had a good relationship.

Litteral offered to take Cano to the Pine Cone Motel where he had a room. A lot of people were in and out of the motel, and three or four people spent the night in Litteral's room. Cano didn't leave the room because she didn't feel safe. After she arrived, Johnson sent Schnebly and two other people to check on her.

The next day Cano, still at the Pine Cone Motel, overheard Johnson and a friend of Litteral's named Brandon Haggett on the phone. Johnson was

243 Cal.App.4th 1253

yelling at Haggett and she overheard Johnson saying, "I am going to kill you. I am going to come there and I am going to kill you." He said this two or three times.¹

Cano and the other people who were staying with her and Litteral at the Pine Cone Motel decided to go to the Bu–Shay campground at Lake Mendocino. Cano estimated that there were at least nine people at the campground, including two children. Brandon Haggett and Joe Litteral were among this group.

The day after they arrived, Johnson came up over the ridge "yelling and screaming." He sent two or three people into the campground ahead of him. Cano didn't know them by name, but was familiar with them. Cano didn't speak with Johnson directly. Instead, she went inside her tent. Johnson stayed at the campsite into the evening hours eating, talking, smoking marijuana and drinking with, among others, Litteral and Haggett.

Toward the end of the evening, Johnson approached her. He said things like "I am going to get you. I am going to get you back. I know I am going to get you, and you better watch what you are doing. You better not have them do anything, and if I see you doing anything, I'm going to hurt somebody." Cano testified that Johnson said "if he seen me with Joe Litteral" in a romantic way "he was going to hurt us." After Johnson left, Litteral told her that she should stay in the tent with him because "we're not going to let nobody scare us."

Johnson went to the campsite next to theirs, where six or seven other people were staying. He stayed the night. The next morning he was back at Cano's campsite "talking with all the guys."

On July 20, as it was becoming evening, a car pulled up "really quick" to the tent where Cano was staying. The doors flew open. The first person Cano recognized was AJ Schnebly, who had a pistol grip shotgun in his hands. Cano didn't see anything in Johnson's hands. Schnebly racked the shotgun. Moments later, Cano saw Brandon Haggett "fighting with a guy with a handgun." This man (later identified as Crocker) was wearing a bandana over his nose and mouth. Cano heard a gunshot and saw Haggett drop to his knees.

Litteral, who was about 55 feet away, ran toward Haggett. Cano saw the man with the gun "shoot him, point blank." She heard a second shot, and

243 Cal.App.4th 1254

testified "I seen Joe [Litteral] go down.... I screamed, and I started running over

197 Cal.Rptr.3d 361

there...." At that point, Johnson ran toward her and grabbed at her. As he did so he yelled, "Get in the fucking car, bitch." She ran the other way towards Haggett and Litteral.

Brandon Haggett, one of the shooting victims, testified about the days that led up to the incident and the shooting itself. In July 2011, Haggett was staying at the Pine Cone Motel with his friend Joe Litteral. Cano came to stay at the motel. Over the course of Cano's first day at the motel, Haggett answered five or six calls from a man who identified himself as Cano's husband. This man, who Haggett later learned was Johnson, told Haggett, "I want her back," "[b]etter bring my wife back. I am going to kill you. I am going to find you." Johnson was "very angry, very upset." Haggett...