People v. Johnson
| Decision Date | 18 August 2022 |
| Docket Number | C076191,C076607 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CONRAD J. JOHNSON, JR., et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. LAM QUOC LUONG, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date: 9/14/2022
ON TRANSFER
It is ordered that the opinion filed in this case on August 18 2022, be modified as follows:
On page 41, Discussion part IX, third sentence, delete "(15 percent of 654 is 97.8)" and replace with "(15 percent of 652 is 97.8)" so that the sentence now reads:
Luong however, was in custody for 652 days (from the time of his arrest on August 2, 2012, through his sentencing on May 16 2014), which entitled him to 97 days of good conduct credit (15 percent of 652 is 97.8).
This modification does not change the judgment.
The petition for rehearing is denied.
On transfer from the California Supreme Court based on a change in the law, this court considers the case again.
The Viet Pride and Khome Zong Tong (KZT) gangs are rivals of the Hop Sing street gang. In 2012, Kao Saechao, a Hop Sing gang member, entered a store in a shopping center in South Sacramento, a gathering place for KZT and Viet Pride members who consider the shopping center their territory. A minute later, defendants Jhordan Villanueva and Danny Dien Do, Viet Pride gang members, appeared outside the store and were joined soon after by defendants Roderick Bernard Randall and Conrad J. Johnson, Jr., KZT gang members. Villanueva, Do, and Randall challenged Saechao to come outside and fight. Saechao, fearing there would be a shootout if he left the store, called other Hop Sing members for help, and they arrived shortly thereafter in a red Honda. Shots were fired at the Honda by defendants Lam Quoc Luong and Johnson, and occupants were hit.
A jury convicted defendants Luong, Villanueva, Do, Randall, and Johnson for the attempted murders of J.T., S.V., J.S., and K.S. It also found Randall guilty of possessing MDMA[1] for sale. In addition, the jury also found true allegations that certain offenses were committed willfully, deliberately, and with premeditation, a principal intentionally and personally used a firearm, a principal intentionally and personally discharged a firearm, a principal personally caused great bodily injury to a person other than an accomplice, and certain offenses were committed for the benefit of a criminal street gang, KZT.
The trial court found true allegations that Johnson and Randall each served a prior prison term and had been convicted of a serious felony. It sentenced Luong to an aggregate term of 64 years to life in state prison; Villanueva and Do to aggregate terms of 32 years to life in state prison; Randall to an aggregate term of 88 years to life in state prison; and Johnson to an aggregate term of 83 years to life in state prison.
In their opening appellate briefs, defendants contended the trial court committed various evidentiary, instructional, and sentencing errors. They also asserted there was insufficient evidence to support their convictions and that the case must be remanded to allow the trial court to exercise its newly acquired discretion to strike the firearm enhancements imposed pursuant to Penal Code section 12022.53.[2] In its original opinion, this court concluded Randall's conviction for possession of MDMA for sale had to be reversed because there was insufficient evidence that he knew of the drug's presence or exercised dominion and control over the same. As for the remainder of the judgments, this court ordered a remand for correction of custody credits and to allow the trial court to exercise its discretion whether to strike any of the firearm enhancements and, if appropriate, to resentence defendants, but otherwise affirmed.
The California Supreme Court granted review and transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (2021-2022 Reg. Sess.) which allows defendants to raise on direct appeal their claims concerning the effect of amendments to laws relating to attempted murder enacted in Senate Bill No. 1437 (2017-2018 Reg. Sess.). (§ 1172.6, subd. (g).)[3]This court vacated its decision and we now reconsider the entire matter.
We now conclude (1) we will reverse the attempted murder convictions of Do, Randall, and Villanueva, along with the accompanying enhancements, but we will affirm the attempted murder convictions of Luong and Johnson; (2) relevant to whether Do, Randall, and Villanueva may be retried, there was sufficient evidence to convict Do, Randall, and Villanueva of attempted murder; (3) the trial court did not err in declining to instruct the jury on the crime of being an accessory to a felony; (4) the trial court properly instructed the jury using CALCRIM No. 334 [] instead of CALCRIM No. 335 []; (5) the trial court properly admitted evidence that cars parked in a witness's driveway were vandalized the night before the witness testified; (6) the trial court was not required to instruct on unanimity; (7) any error in admitting evidence of Villanueva's prior contacts with police was harmless beyond a reasonable doubt; (8) Randall's conviction for possession of MDMA for sale must be reversed because there was insufficient evidence; (9) Luong is entitled to additional custody credit; (10) we will remand the matter to permit the trial court to exercise its discretion whether to strike the firearm enhancements under section 12022.53; (11) we will remand the matter to permit the trial court to exercise its discretion whether to strike the prior serious felony enhancements; (12) the gang enhancements must be reversed and remanded for retrial as a result of legislative changes; (13) the trial court, on remand, must allow Luong to make a record of information for an eventual youth offender parole hearing; and (14) Luong, on remand, may request a hearing to present evidence on his ability to pay fines and assessments.
To summarize, we will reverse the attempted murder convictions of Do, Randall, and Villanueva (the People may seek retrial); reverse Randall's conviction for possession of MDMA for sale; affirm the attempted murder convictions of Luong and Johnson but reverse the associated gang enhancements, vacate the sentences, and remand; and direct the trial court to properly reflect Luong's custody credit, allow Luong to make a record of information for an eventual youth offender parole hearing, allow Luong to request a hearing on his ability to pay fines and assessments, exercise its discretion with respect to striking firearm and prior serious felony conviction enhancements, and conduct further proceedings consistent with this opinion.
On the afternoon of January 12, 2012, Kao Saechao, a validated member of the Hop Sing street gang, entered a store with his girlfriend at a shopping center in South Sacramento to purchase water. The shopping center is a known gathering place for members of the KZT and Viet Pride street gangs rivals of the Hop Sing street gang. There were at least six surveillance cameras located inside and outside the store. The cameras recorded a significant portion of the activities and movements of defendants, Saechao, and the shooting victims prior to and at the time of the shooting. The surveillance videos were played for the jury and admitted into evidence.
A minute after Saechao and his girlfriend entered the store, two Viet Pride gang members, Villanueva and Do, appeared outside the store. They returned a few minutes later with two KZT gang members, Randall and Johnson, and former Viet Pride gang member Jimmy Luu. All five men stood in the store's doorway and peered inside.
Villanueva and Do remained outside the store, called Saechao "Hop Chop," told him that he was in their territory, and challenged him to come outside and fight. "Hop Chop" is a derogatory term for a Hop Sing gang member. Saechao believed he would get jumped if he went outside and that there would be a shootout if he attempted to drive away, so he called others for help.
Soon after, Randall entered the store and spoke to Saechao while Villanueva and Do remained outside. Randall told Saechao Villanueva and Do knew Saechao was a Hop Sing gang member and to go outside and talk like a man.
On the day in question, Randall was wearing a court-ordered GPS tracking device that recorded his location once every minute and the speed of his movements. While Randall was inside the store encouraging Saechao to go outside, Saechao's friends came to the shopping center in a red Honda. Villanueva and Do looked in the direction of the red Honda and immediately walked away from the store. Randall left the store a few seconds later as the occupants of the red Honda-J.T., S.V., J.S., and K.S.-were starting to walk toward the store. Randall yelled, "Chops, light them up." Shots were fired at the red Honda and its occupants from two directions. S.V. was shot in the back of his right leg, and J.T. was shot twice in the head. Most, if not all, of the occupants of the red Honda were members of Hop Sing.
Pursuant to a plea bargain, Luu testified for the prosecution at trial. When he arrived at the shopping center on the day in question, he saw Randall and Johnson looking toward the store from behind a dumpster, and Villanueva and Do outside the store. After getting some coffee, he walked to the store to see what was going on and was told by Villanueva or Do...
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