People v. Johnson, B201943 (Cal. App. 7/15/2009)
| Decision Date | 15 July 2009 |
| Docket Number | B201943 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JASON ANTHONY JOHNSON, Defendant and Appellant. |
| Court | California Court of Appeals |
Appeal from a judgment of the Superior Court of Los Angeles County, No. TA086545, Ronald V. Skyers, Judge. Conditionally reversed and remanded with directions.
John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Jason Anthony Johnson (appellant) appeals from the judgment entered following a jury trial in which he was convicted of carrying a concealed firearm on his person. (Pen. Code, § 12025, subd. (a)(2).)1 In bifurcated proceedings, appellant admitted that he had a previous conviction of carrying a loaded firearm in violation of section 12031, subdivision (a). At sentencing, the trial court granted appellant three years of formal probation on condition that he serve 90 days in the county jail.2
He contends that the trial court (1) improperly refused to charge the jury with a unanimity instruction and (2) abused its discretion in ruling on his Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) He raises two contentions of constitutionally ineffective trial counsel: (3) trial counsel failed to object to the prosecutor's cross-examination and final argument concerning his judicial admission, which concerned an offense of which he had no notice, and (4) trial counsel failed to impeach Deputy Bates during the search and seizure motion with a prior inconsistent statement. Appellant also (5) requests that this court review the record of the in camera Pitchess discovery hearing and the discovery obtained in an unrelated case pursuant to the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc ).
We find merit only in his contentions that the trial court abused its discretion by failing to order the disclosure of certain Pitchess discovery, and we will conditionally reverse the judgment.
At about 9:45 p.m. on August 17, 2006, Los Angeles County Deputy Sheriffs Jason Bates and William Zollo were on duty in Compton.3 The deputies were gang officers assigned to Operation Safe Streets. They were driving a marked patrol car northbound and saw five youths, including appellant, on the sidewalk on the northwest corner of Bradford Avenue and East Killen Place. The youths were standing in front of the residence at 1721 East Killen Place and grouped next to a vehicle. They were apparently talking.
Deputy Bates illuminated the youths with a spotlight, and everyone turned and looked at the patrol car. Simultaneously, appellant turned and ran with his hand on his waistband. He ran northwest to the front door of the residence at 1721 East Killen Place. As he ran, he was holding onto a handgun at his waist, and the deputies could see the butt and the grips of the handgun.
Deputy Bates quickly parked the patrol car at the west curb in front of and east of the residence. He got out of the driver's door and pursued appellant to the residence's front door. There, appellant was pulling on the front door's security screen. The screen would not open. The deputy yelled at appellant to open his hands. In response, appellant put his hands up and told the deputy that he had a gun.
From appellant's waistband, the deputy retrieved a Beretta nine-millimeter semiautomatic handgun. It was loaded with a magazine that contained 10 live hollow-point bullets. Appellant was arrested. Deputy Bates took appellant to the police car where Deputy Zollo had the four other youths detained: Dwayne Harris, one of appellant's cousins, and teenagers Christopher L., Dwayne B., and Sherman S. The deputies released everyone but appellant. Appellant was arrested, and a male and a "young lady" walked out from the north side of the residence and contacted one of the deputies.
After appellant's arrest and a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), appellant told the deputies that he was carrying the handgun for protection because there were shootings in the area.
Appellant impeached Deputy Bates with the deputy's preliminary hearing claim that he was not the driver of the patrol car, but the "book man," i.e., Deputy Bates had been riding in the front right passenger seat of the patrol car, not in its driver's seat.
In defense, appellant testified that he was a security guard who had an "exposed carry permit" so that he could carry a handgun in the course of his employment. Appellant claimed that on the night in question he was inside his aunt's residence with his cousin Deon Marcus (Marcus), and he was trimming Marcus's hair and beard. Appellant mentioned to Marcus that he had just purchased a new $1,400 handgun for a new work assignment. Marcus wanted to see the handgun, and appellant went outside to retrieve it from the gun safe, which was either in his car's trunk or in the car's backseat. At the same time, appellant moved his car from the residence's driveway to East Killen Place so that when his aunt arrived home, she could park her car in her driveway. Appellant retrieved the handgun from the gun safe and took the magazine out of his glove box and reentered his aunt's residence. After Marcus examined the handgun, appellant put the handgun in his waistband under his long T-shirt and finished Marcus's haircut.
Appellant and Marcus heard a knock at the front door. Marcus had appellant answer the door. A deputy sheriff confronted appellant at the door and yelled, "Move and you're dead." The deputy had appellant step outside onto the porch. Appellant saw Christopher L. lying prone on the porch. The deputy searched appellant and asked him whether he had any guns or "dope." Appellant replied that he had a gun in his name. The deputy took the handgun from the waistband of his pants and yelled to the other deputy, "I have a gun." Appellant was arrested.
Appellant was uncertain as to the identity of the deputy who had contacted him at his aunt's front door. He believed that it was the deputy with the hair, Deputy Zollo. In the police car, appellant told the deputies that he used the handgun at work as he was a security guard and that he had in his car the necessary paperwork to legally possess the handgun. The deputies refused to examine the paperwork. Appellant denied that he had told the deputies that he was carrying the handgun for his own protection.
During cross-examination, the prosecutor questioned appellant about how he had transported the handgun from his car into his aunt's residence. Appellant replied that he had taken the handgun out of the car safe after parking his car. He then placed the handgun in his waistband and put the magazine for the handgun in a pants pocket.
At trial, Marcus corroborated many of appellant's claims. In particular, Marcus testified that when appellant answered the front door, Marcus was in the bedroom and heard someone say angrily, Marcus then heard the front door open and close.
Appellant's aunt, Delores Harris, Marcus, and a defense investigator testified that the front security screen on the residence was broken. It did not close all the way, and it could not be secured shut.
A youth claiming to be a mere bystander, Dwayne B., testified that he was walking southbound on Bradford Avenue to eastbound East Killen Place with Sherman S. A car approached them slowly northbound. The car's headlamps were off. Dwayne B. said that Christopher L. was not with him and Sherman S. Christopher L. was standing alone at another location on the sidewalk. The approaching car looked suspicious, and Dwayne B. feared that whoever was in the car was going to commit a drive-by shooting. Christopher L. ran toward Marcus's residence, and Dwayne B. and Sherman S. started to run. Dwayne B. then saw the car, which he could now discern was a sheriff's patrol car, drive up onto Marcus's front lawn. A deputy ordered the teenagers to stop, and they complied. The passenger deputy was the deputy with the hair; the patrol car's driver was bald.4 Dwayne B. and Sherman S. were detained at the patrol car with Christopher L. Dwayne B. saw Deputy Bates bring appellant from the area of the residence's porch. After everything was over, Dwayne Harris, another of defendant's cousins, pulled up into the residence's driveway in a car, and Dwayne Harris was detained.
Another defense investigator testified that before trial, he had spoken to Marcus by telephone. Marcus had told the investigator that the deputies knocked, and Marcus saw the deputies enter his living room, grab appellant, and take him outside. Marcus said that appellant had retrieved the handgun from his car that night and brought the handgun into the residence to show it to Marcus. After Marcus examined the handgun, appellant had put it in his waistband.
Prior to trial, appellant challenged his "detention and seizure" pursuant to section 1538.5.
At the hearing on the motion to suppress, Deputy Bates testified that he had observed appellant run from the group. He illuminated the youths and saw appellant reach toward his waistband with his left hand. As appellant was running, his shirt came up. Deputy Bates could see the "white grip of a gun" and the "butt of a handgun" in appellant's waistband. The deputy stopped the patrol car at the east curb or on the sidewalk just past the northwest corner. He got out of his patrol car and ran after appellant. On the residence's porch, appellant grabbed the security screen over the front door and "yank[ed]" on it with his...
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