People v. Johnson

• Decision Date: 25 September 2013
• Docket Number: F057736
• Citation: People v. Johnson, F057736 (Cal. App. Sep 25, 2013)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. COREY RAY JOHNSON et al., Defendants and Appellants.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. COREY RAY JOHNSON et al., Defendants and Appellants.

F057736

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: September 25, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. BF122135A,

BF122135B & BF122135C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Corey Ray Johnson.

Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Kevin Dixon.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant David Lee, Jr.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., (Johnson, Dixon, and Lee, respectively; collectively, defendants) were charged by first amended indictment as follows:

• Count one (Johnson and Lee only): March 21, 2007, attempted murder of Edwin McGowen, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Pen. Code,¹ §§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count two (all defendants): April 19, 2007, premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).

• Count three (all defendants): April 19, 2007, premeditated murder of Vanessa Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).

• Count four (all defendants): April 19, 2007, premeditated murder of Baby Boy Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).

• Count five (all defendants): April 19, 2007, attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodilyinjury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count six (Dixon only): April 19, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).²

• Count seven (all defendants): August 11, 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count eight (all defendants): August 11, 2007, discharge of a firearm at an occupied vehicle, involving the personal discharge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 246, 12022.53, subds. (d) & (e)(1)).

• Count nine (all defendants): March 2, 2007-August 22, 2007, conspiracy to violate any or all of sections 186.22, subdivision (a), 187, 211, and 245, subdivision (a)(2), committed for the benefit of a criminal street gang (§§ 182, subd. (a)(1), 186.22, subd. (b)(1)(C)).

• Count ten (Dixon only): August 9, 2007-August 18, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).

• Count eleven (all defendants): March 2, 2007-August 22, 2007, active participation in a criminal street gang (§ 186.22, subd. (a)).

It was further alleged that Dixon was previously convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and for which he served a term in prison (§ 667.5, subd. (b)). The People elected not to seek the death penalty against any defendant.

Following a joint jury trial, defendants were convicted as charged, and the murders were determined to be first degree. All special circumstance and enhancement allegations, including Dixon's prior convictions, were found to be true.³ Johnson's motion for a new trial was denied, and each defendant was sentenced to three consecutive terms of life in prison without the possibility of parole plus additional determinate and indeterminate terms, and was ordered to pay restitution and various fees and fines.

Originally, we affirmed the judgments with some minor exceptions and modifications. In particular, we held that a charge of conspiracy to actively participate in a criminal street gang is not permitted. The California Supreme Court granted review as to that issue, reversed, and remanded the case to us for further proceedings consistent with its opinion. (People v. Johnson (2013) 57 Cal.4th 250, 268.) We now vacate our earlier opinion and, the cause having been submitted pursuant to California Rules of Court, rule 8.256(d)(2), we issue this opinion. We again affirm the judgments with some minor exceptions and modifications.

FACTS

IPROSECUTION EVIDENCE

Events Surrounding March 21, 2007

Early on the morning of March 20, 2007, someone shot Venesta Grinnage's vehicle, which was parked in front of her home in the 4300 block of Deborah Street in Bakersfield.⁴ Grinnage's son, Daniel Davis, frequented the house, although he did not live there. Multiple shell casings from three different semiautomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15 minutes later. The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots.

Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both members of the police department's Special Enforcement Unit (also known as SEU or the gang unit) were dispatched to an address on Myrtle Street in response to a call in which the reporting party said he had been shot at and his vehicle had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been standing by his vehicle in front of a residence in the 800 block of Deanna Way, talking with some friends, when an older silver or green Jeep drove by and shots were fired athim and his friends. Lee said the incident occurred about half an hour before he called the police, and that he had left the area and gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had been present, and he seemed very hesitant when Shaff asked for specifics about the other vehicle and its occupants.

There were what appeared to be bullet holes in Lee's vehicle, a 2000 Chevrolet Tahoe that belonged to his father. Shell casings and bullet fragments from at least one gun were found in the 800 block of Deanna Way, where Lee said the shooting had occurred.

As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU officers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powder blue, were active rivals of the Bloods at the time. The Bloods had somewhat of an alliance with the Westside Crips, and were not actively quarrelling with the Eastside Crips. The corner was a known narcotics location, with sales being made out of the apartment complex there. The territory of a local Hispanic gang, which also sold narcotics, began nearby.

Around 6:45 that evening, Edwin McGowan was talking to friends outside the apartments when he heard some shots. He tried to run, but fell, having been struck. He saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two more times, then took off running. McGowan could see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ever having seen defendants.

Officer Meek interviewed McGowan in the emergency room. McGowan described the shooter as a tall, light-skinned African-American male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meekconfirmed that McGowan was certain the race was African-American and not Hispanic. When asked, McGowan said he would be able to identify the person if he saw him.⁵

At the scene, adult-sized footprints, with a stride length suggesting the person had been running, led from the area in which McGowan had lain in front of one of the apartments, toward where a hole had been cut in the chain-link fence at the far corner of the parking lot.⁶ Three spent .25-caliber shell casings were found near the door of the apartment where McGowan had lain, and another was recovered from the parking lot. All four had been fired...