People v. Johnson

• Decision Date: 05 February 2019
• Docket Number: D071011
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Peter JOHNSON et al., Defendants and Appellants.

32 Cal.App.5th 26

243 Cal.Rptr.3d 586

The PEOPLE, Plaintiff and Respondent,

v.Peter JOHNSON et al., Defendants and Appellants.

D071011

Court of Appeal, Fourth District, Division 1, California.

Filed February 5, 2019

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Peter Johnson.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Ian Guthrie.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, J.

In 2014, Lamar Canady was shot to death in broad daylight in the Oak Park neighborhood of the City of San Diego. After months of investigation by police, with the assistance of the Federal Bureau of Investigation (FBI) and authorities in Kansas City, Missouri, Peter Johnson and Ian Patrick Guthrie were arrested and eventually charged with murder ( Pen. Code, § 187, subd. (a) ;¹ count 1) and assault with a semiautomatic firearm (§ 245, subd. (b); count 2) for Canady's death. The information also alleged that Johnson intentionally and personally discharged a firearm during the commission of the murder, causing death (§ 12022.53, subd. (d) ) and that Johnson had a strike prior stemming from a 1998 murder conviction in Jamaica (§§ 667, subds. (b)-(i), 668, 1170.12). The information alleged Guthrie had a strike prior and serious felony prior stemming from a 1997 manslaughter conviction in New York (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c) ).

The investigation into Canady's death revealed Johnson and Guthrie were participants in a conspiracy to kill Canady led by drug kingpin Omar Grant.² Prosecutors alleged Grant ordered a hit on Canady, executed by Johnson with assistance from Guthrie and other uncharged coconspirators, to retaliate against Canady for stealing drugs from Grant and sleeping with his girlfriend. After the trial, which was conducted jointly but with separate juries, Johnson and Guthrie were both convicted of first degree murder. Johnson's jury also found true the allegation that Johnson personally discharged a firearm resulting in Canady's death.

Johnson and Guthrie appeal their convictions on various grounds. Guthrie asserts: (1) The trial court erred by denying his motion to suppress statements made to police after he invoked his right to counsel during his postarrest interview; (2) insufficient evidence supported the prosecution's theory that he aided and abetted Canady's murder; (3) the trial court abused its discretion by admitting into evidence a rap song recorded by Canady prior to his death; (4) that even if the errors individually do not require reversal, cumulatively they do; and (5) that the trial court abused its discretion by denying the defendants' motion to continue the sentencing hearing to allow additional discovery concerning police use of a cell site simulator to locate him. Johnson asserts the trial court erred by failing to instruct on the lesser included offenses of second degree murder and voluntary manslaughter, and that the use of his Jamaican conviction as a prior strike ran afoul of his right to equal protection under the California and United States Constitutions. Both men also contend that the trial court abused its discretion by admitting into evidence testimony and documents concerning their illegal entry into the United States. We conclude these claims lack merit, and accordingly affirm both men's convictions.

Additionally, while the appeal was pending, we granted Johnson's motion to file a supplemental brief to explain the impact, if any, of newly enacted section 12022.53, subdivision (h) on his sentence. The amended provision allows the superior court, in the interest of justice, to strike firearm enhancements. The Attorney General concedes the change in law applies to Johnson, but argues the record shows the court would not have struck the firearm enhancement even if it had had discretion to do so. Although we agree there is some support in the record for the People's position, section 12022.53, subdivision (h) was not effective when the trial court sentenced Johnson and the court lacked the discretion to strike the firearm enhancement.

After this opinion was originally issued on June 29, 2018, Johnson and Guthrie sought review in the Supreme Court. On October 31, 2018, the Supreme Court denied Johnson's petition for review, but granted Guthrie's petition and transferred the case back to this court with directions to vacate our decision and reconsider the cause in light of recently enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013). We vacated our opinion and provided the parties with the opportunity to file supplemental briefs addressing the legislation.³ As he did with the changes in 2018 to section 12022.53, the Attorney General concedes the law applies retroactively to this case but argues remand is futile because the record is clear that the court would not have struck the enhancement had it had discretion to do so. Although the trial court indicated it would not strike the serious prior felony enhancement even if it had the discretion to do so, Guthrie did not have the opportunity to address the question.

Thus, out of an abundance of caution, we remand the matter for the limited purpose of allowing the trial court to consider whether to strike the firearm sentencing enhancement imposed on Johnson and to consider whether to strike the serious prior felony enhancement imposed on Guthrie.

FACTUAL AND PROCEDURAL BACKGROUND

Canady was murdered by a gunman in his barbershop in broad daylight at approximately 11:30 a.m. on May 9, 2014. The prosecution contended Grant, who led a drug trafficking operation, plotted revenge against Canady for stealing marijuana and sleeping with Grant's girlfriend, Talya Martin, over a year before the murder. According to prosecutors, Grant commissioned defendants Johnson and Guthrie, and other uncharged and unknown individuals, to murder Canady.

Investigative efforts after Canady's murder showed Johnson, a Jamaican citizen who resided in Kansas City, Missouri before the crime, began using a prepaid cell phone, or "burner," on April 15, 2014. Phone records showed Johnson activated the burner phone in Houston, Texas, that day, and that he was in San Diego by April 20th. The first name and phone number entered as a contact on the phone was Guthrie's. Guthrie also purchased multiple burner phones on May 5, 2014. Phone records revealed that Guthrie was in the area where Canady was shot and was in contact with Johnson on May 8, 2014.

May 9, 2014, the day Canady was killed, Guthrie called Grant around 9:18 a.m. Cell phone data showed Guthrie calling Johnson a few minutes later, then both men's phones moving toward the neighborhood where Canady's barbershop was located until Guthrie and Johnson were both in the area just minutes before the shooting. Around 11:00 a.m., the security cameras at the Trade Winds liquor store directly west of the barbershop captured Johnson walking down the street and entering the liquor store.

At that time, Canady was next door in the barbershop with one of his barbers, Pride Erving. Both Canady and Erving were known members of the West Coast Crips gang. Security footage from an auto repair business across the street from the liquor store, Nu's Auto Repair & Body Shop, showed Guthrie and a man in khaki pants standing near a silver sedan parked across from the barbershop. At one point in the video, Guthrie is seen raising his arms, hopping and shadow boxing.

At 11:22 a.m., Canady briefly walked outside the barbershop then reentered. Phone record showed Guthrie called Johnson within seconds of Canady returning inside the barbershop. The owner of the liquor store reported to the police that Johnson purchased a 40-ounce beer before leaving, and the time-stamped video footage from the store showed Johnson walking to the cash register after the call from Guthrie to purchase beer, then exiting the store at 11:24 a.m. At about the same time, a red SUV with a spare tire on the back of its lift gate proceeded down the street in the same direction as Johnson was walking.

As Johnson exited the liquor store, video from the auto shop showed Guthrie opening the silver sedan's trunk. The video then showed Guthrie's companion, referred to at trial as the man in khaki pants,⁴ walk toward the silver sedan's open trunk and grab something from within. As Johnson exited the store, he and the man in the khaki pants walked towards each other, then the man in the khaki pants crossed the street toward Johnson and handed Johnson the item retrieved from the trunk in exchange for the bag containing the beer Johnson purchased at the liquor store. Prosecutors contended the man in the khaki pants exchanged the murder weapon for the beer Johnson purchased. Once the handoff was complete, the man in the khaki pants returned to the silver sedan and entered the passenger side of the vehicle.

The time-stamped video surveillance showed Johnson entering the barbershop at approximately 11:25 a.m. and exiting within seconds. In that short time, Johnson fired 14 shots, 10 of which hit Canady's head, face, torso, and legs. The video surveillance showed Johnson quickly leaving the shop, tucking the gun in his waistband, and running east, away from Guthrie and the man in khaki pants who had remained in the silver sedan. As soon as Johnson exited the barbershop, simultaneous video surveillance showed the sedan with Guthrie and the other accomplice inside driving away from the scene.

An employee of the auto shop, who was across the street from the barbershop at the time shots were fired, testified that he saw a man "turn real quick around the corner" while running away from the barbershop. The witness did not see if Johnson had a gun, but did recall something glinting off Johnson's back that appeared to be shaped "like a...