People v. Johnson
| Decision Date | 20 July 2018 |
| Docket Number | D073713 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRYSON RASHAD JOHNSON et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed in part; vacated in part; remanded with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Michael Bryson Rashad Johnson.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant Cameron Stepney.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael Bryson Rashad Johnson and Cameron Joron Stepney of two counts each of second degree robbery. (Pen. Code, § 211.) The jury found, as to each count, that they personally used firearms in the commission of the offense. (Id., § 12022.53, subd. (b)). The jury also convicted Johnson of assault with a deadly weapon, other than a firearm, against a peace officer (id., § 245, subd. (c)) and reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)).1
The trial court sentenced Johnson to a determinate term of 20 years 8 months in prison, consisting of the upper term of 5 years for the first robbery conviction, 10 years for the corresponding firearm enhancement, one-third of the middle term of 3 years for the second robbery conviction (or 1 year), one-third of the 10-year term for the second firearm enhancement (or 3 years 4 months), and one-third of the middle term of 4 years for the assault conviction (or 1 year 4 months). It also sentenced Johnson to the middle term of 2 years, to run concurrently, for the evading conviction. The court sentenced Stepney to a determinate term of 17 years 4 months in prison, consisting of the middle term of 3 years for the first robbery conviction, 10 years for the corresponding firearm enhancement, one-third of the middle term of 3 years for the second robbery conviction (or 1 year), and one-third of the 10-year term for the second firearm enhancement (or 3 years 4 months).
Johnson and Stepney appeal. Johnson contends (1) the trial court erred by denying his Batson/Wheeler motion challenging the prosecution's use of a peremptory challenge against a Black juror (see Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); (2) the court erred by instructing the jury with CALCRIM No. 2181 that committing three or more specified traffic violations constitutes a willful or wanton disregard for the safety of persons or property for purposes of the evading charge under Vehicle Code section 2800.2; (3) the court's admission of certain text messages between Johnson and Stepney violated his right to confront and cross-examine witnesses under the Confrontation Clause of the Sixth Amendment to the United States Constitution; (4) the court erred by granting a three-week continuance during trial for medical reasons and by denying Johnson's related motion for mistrial; (5) the court erred by instructing the jury with CALCRIM No. 372 regarding flight; (6) the court erred by not staying Johnson's sentence for assault under Penal Code section 654; (7) Johnson's sentence should be vacated to allow the trial court to exercise its newly-effective discretion to strike the firearm enhancements found by the jury; and (8) the matter should be remanded to allow the parties to make a record for purposes of any future youth offender parole hearing under a newly-effective statute allowing offenders of Johnson's age to benefit from such hearings. Stepney joins in Johnson's Batson/Wheeler argument and also contends his sentence should be vacated so the trial court can exercise its discretion to strike the firearm enhancements.
The Attorney General concedes that the matter should be remanded to allow the trial court to exercise its discretion to strike the firearm enhancements and, for Johnson,to make a record for any future youth offender parole hearing. We accept these concessions. However, for reasons we will explain, we conclude that defendants' remaining contentions are unpersuasive. We will therefore vacate defendants' sentences and remand for resentencing but affirm the judgments in all other respects.
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On January 13, 2016, around 6:00 p.m., a pharmacist and a technician were working at a pharmacy in Fontana, California. Three men, later identified as Johnson, Stepney, and Simmons, entered the pharmacy. They had surgical masks over their faces. Stepney went behind the counter and pointed a handgun at the technician's face. Johnson stood on the other side of the counter with a handgun drawn as well. They told the pharmacist and the technician to get on the floor. Stepney asked the pharmacist where certain prescription drugs were stored, including Xanax and the opioid Norco. The pharmacist showed Stepney, who took the drugs and passed them to Johnson.
Johnson, Stepney, and Simmons left the pharmacy. A plainclothes police officer, who happened to be in the area for an unrelated operation, saw them running past his vehicle. They were still wearing their surgical masks. The officer contacted a police helicopter, which was in the area for the same operation. It observed the men run to anearby Mercedes and drive away. Based on the helicopter's observations, a motorcycle officer located the men driving on the freeway and followed them.
Another police officer, driving a police sport utility vehicle (SUV) equipped with emergency lights and sirens, joined the chase soon afterwards. He activated his lights and siren, as did the motorcycle officer, but the Mercedes did not stop. It exited the freeway, went around cars stopped at a red light, turned to face the police officer in the SUV, and accelerated toward him. Although the police officer tried to avoid the Mercedes, it struck his SUV and caused him to collide with a light pole. The police officer suffered sprains in both wrists and pain in his shoulder and lower back. He subsequently learned that the Mercedes had hit another car near the intersection.
The men in the Mercedes drove away, with the motorcycle officer still following them. Eventually another police officer started following the men as well. He also activated the lights and sirens on his vehicle. The Mercedes drove through residential areas, far in excess of the speed limit, and ran several red lights and stop signs. Other drivers had to swerve off the road to avoid a collision. At one point, the Mercedes hit a dip in the road and briefly became airborne.
The men eventually crashed into a light pole themselves, and their Mercedes came to rest on a nearby sidewalk. Johnson, Stepney, and Simmons got out of the car and ran away, with police officers on foot in pursuit. The men threw various items away as they ran. Stepney and Simmons were apprehended, but Johnson escaped.
At the scene of the crash, police officers recovered various pill bottles, a surgical mask, and a handgun registered to Stepney. Police later discovered that the Mercedeswas registered to Johnson, and the police officer involved in the crash identified Johnson as the driver of the Mercedes. Johnson was eventually arrested as well.
During their investigation, police officers recovered a number of text messages from Stepney's cell phone. Two days before the robbery, an unknown person texted Stepney, "What's up with the norco my nigga." One day before the robbery, Stepney texted with a person identified as "Bryson" (one of Johnson's middle names). Bryson said, "Wussgood we still on?" Stepney replied, Bryson agreed, The following day, the day of the robbery, Bryson texted Stepney, "Yeah, what time you tryna run it?" Stepney replied, "5:30" and "No later." Stepney then texted, "I'm just waitin on the wheels & I'm that way." Bryson said, "Yup hit me." At 5:28 p.m., Stepney texted, "Omw" (i.e., "on my way"). Bryson replied, "Yup I'm at the tilt."
At trial, Johnson's counsel argued he was not involved. He presented evidence that, the day after the robbery, Johnson called police and reported that his Mercedes had been stolen at 3:00 p.m. the previous day. He also told police he had lost his cell phone. When police officers came to meet with Johnson, he was not there. When the police tried to contact him again, Johnson said he had to go out of town and could not meet with them. Stepney's counsel primarily argued that the prosecution did not prove he went into the pharmacy. Instead, his counsel suggested that he waited in the Mercedes during the robbery.
Johnson and Stepney contend the trial court erred by denying their Batson/Wheeler motion after the prosecution used a peremptory challenge against a Black juror. Johnson and Stepney are both Black. The juror, A., was excused. One Black juror remained on the jury.
In voir dire, A. explained that she was a social worker for the County of Los Angeles. She had been a social...
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