People v. Windfield

• Court: California Court of Appeals
• Writing for the Court: RAMIREZ, P.J.
• Citation: People v. Windfield, 3 Cal.App.5th 739, 208 Cal.Rptr.3d 47 (Cal. App. 2016)
• Decision Date: 28 September 2016
• Docket Number: E055062
• Parties: The PEOPLE, Plaintiff and Respondent, v. KeAndre Dion WINDFIELD et al., Defendants and Appellants.

3 Cal.App.5th 739

208 Cal.Rptr.3d 47

The PEOPLE, Plaintiff and Respondent,

v.KeAndre Dion WINDFIELD et al., Defendants and Appellants.

E055062

Court of Appeal, Fourth District, Division 2, California.

Filed September 28, 2016

As Modified on Denial of Rehearing October 19, 2016

David P. Lampkin, Camarillo, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Windfield.

Stephen M. Lathrop, Rolling Hills Estates, under appointment by the Court of Appeal, for Defendant and Appellant Harquan Johnson.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr.and

William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

A jury convicted Harquan Johnson (Johnson) and KeAndre Windfield (Windfield) of first degree murder (Pen. Code, § 187, subd. (a)),¹ during which they personally used and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and a principal personally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The jury further convicted defendants of attempted premeditated and deliberate murder (§§ 664, 187, subd. (a)), during which they personally used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and a principal used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). As to both offenses, the jury found that defendants committed them for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C)). The jury also convicted defendants of assault with a semiautomatic firearm (§ 245, subd. (b)), during which they personally used a firearm (§ 12022.5, subd. (a)) and which they committed for the benefit of a criminal street gang. Both were sentenced to prison for 90 years to life. They appealed, claiming the preliminary hearing testimony of a prosecution witness should not have been admitted into evidence at trial, the evidence was insufficient to support their convictions of attempted murder, and the jury was misinstructed. Defendants also claim that the firearm allegation findings as to the attempted murder must be stricken.

In our original opinion, filed August 19, 2014, we agreed in part and directed that the jury's true findings that the defendants personally used a firearm or personally and intentionally discharged a firearm to be stricken. Both defendants had asserted that the abstracts of judgment should be corrected and we directed the trial court to correct Windfield's, and, upon the resentencing of Johnson, to ensure that his abstract and the minutes of the hearing correctly reflect the year the crimes were committed and the award of pretrial custody credit. Each defendant claimed that the sentence imposed upon him, without consideration of his individual characteristics, is a violation of the prohibition on cruel and unusual punishment. We disagreed as to Windfield, but agreed as to Johnson. Therefore, we affirmed Windfield's judgment except as to corrections we directed the trial court to make. As to Johnson, we affirmed his convictions and remanded to the sentencing court for consideration of the factors as set forth in People v. Gutierrez (2014) 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245(Gutierrez ).

On November 12, 2014, the California Supreme Court denied both defendants' petitions for review, but, on its own motion, issued a grant-and-hold of review as to defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re Bonilla, S214960, and People v. Franklin, S217699. On May 26, 2016, the Supreme Court issued its decision in People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053. The Supreme Court then retransferred this case to our court with directions to vacate our opinion and to reconsider the juvenile sentencing issue in light of Franklin. Pursuant to that order, we vacate our original opinion; reaffirm those portions of our original opinion pertaining to issues not subject to the grant and hold, modify our holding of Windfield's cruel and unusual punishment issue, and reconsider Johnson's sentencing claim in light of Franklin.

FACTS

Johnson and Windfield were members of the Ramona Blocc Hustla gang. Johnson and Windfield were close friends. Johnson was easily influenced by Windfield and Johnson's gang moniker was Little Bam, while Windfield's was Bam.

Months before June 11, 2009, the murder victim's close friend, MM, had taken the murder victim to a Ramona Blocc party at a place in Rialto where people buy and use drugs and hang out, when members of that gang who were cousins of MM beat up and threatened the murder victim with guns and Windfield sucker punched him.

On June 11, 2009, the murder victim was with MM and the attempted murder victim in the same vicinity, which was near an apartment where three females were spending time together. The attempted murder victim had a "friends with benefits" relationship with Windfield's sister at the time. The murder victim was under the influence and he expressed anger at MM for not intervening on his behalf during the prior dust up between him, MM's cousins and Windfield at the party in Rialto. He was also still angry at MM's cousins and Windfield, and he said he wanted to "go over ... and shoot up Ramona" and "kill those dudes."

MM told the murder victim that the latter was drunk, that he was not going to do the things the murder victim said he wanted to do and MM did not want to fight the murder victim over this. The murder victim, still angry at MM, took off his sweater, pulled out a gun and held it down at his side. A van pulled up and parked across the street. Inside were Windfield's sister, the owner of the van and her minor children, Johnson, Windfield and other members of Ramona Blocc. The owner of the van lived with Windfield and his sister. Windfield, then Johnson, got out of the van and approached the murder victim and MM. The murder victim began chasing Johnson and Windfield with his gun pointed, taunting Johnson and Windfield as they ran away from him and accusing them of having jumped him. Windfield's sister got out of the van and was yelling concerning the murder victim intending to shoot people in the presence of the children that were in the van. The murder victim put his gun in Windfield's sister's face. MM and the attempted murder victim told the murder victim that he was tripping and the murder victim eventually put the gun down at his side. The van took off and the murder victim, attempted murder victim and MM stood outside the apartment talking.

In the van on the way to Windfield's home, Windfield's sister yelled to Johnson and Windfield that the murder victim had put a gun in her face and has to die for it. Windfield said "we" had to handle the murder victim that night. He angrily said that the murder victim had him running like a little bitch and that made him feel like he was a punk. When they arrived at Windfield's home, Johnson and Windfield armed themselves, borrowed the keys to the van from its owner and left, after Windfield said that they were returning to the scene of the chase.

Meanwhile, back at the scene of the chase, the police arrived in response to a call about a fight, and MM told the murder victim to put his gun away. The murder victim went into the alley behind the apartment complex, while MM stood next to a woman named Nikki, who lived nearby, and the attempted murder victim went inside the apartment where the aforementioned three women were. MM told the police that there had been an argument, but everyone had left. The police then left. The murder victim, the attempted murder victim and MM came together again outside the apartment. MM eventually left after hugging the murder victim, leaving the murder victim and the attempted murder victim outside the apartment, talking. The attempted murder victim told the murder victim that they needed to leave because the police were there (he feared the police would double back and return) but the murder victim did not want to leave. The murder victim said he had to get weed "out of the back" and the attempted murder victim accompanied him towards the alley behind the apartment complex.

Nikki was five to six feet away from them and she approached them and said something, but the attempted murder victim did not hear what she said. As the murder victim and the attempted murder victim walked through a corridor in the apartment complex, each was hit by bullets—the attempted murder victim with one, and the murder victim with 10 to his front and back, including to his head while the gun was being held to it, several of which shots were fatal. As the attempted murder victim limped away, he saw Nikki crying and saying, "They killed him." He went to a car Windfield's sister had left nearby earlier for him, and drove it to Windfield's home so the sister could drive him to the hospital. When he arrived there, he saw MM.

Between the time he left the murder victim and the attempted murder victim outside the apartment and the attempted murder victim arrived at Windfield's home, MM had driven to a convenience store, purchased a cigar, then had driven to Windfield's home, which Ramona Blocc members frequented, arriving there 15 to 20 minutes after leaving the apartment. MM intended to apologize to Johnson and Windfield for the murder victim's actions in chasing them with a gun and to "resolve the matter." When he arrived at Windfield's, the latter said to him, "Sorry, Cuzo, he had to go" and "I mean he's gone." Windfield said he was sorry but he was not the shooter—Johnson was. When the attempted murder victim subsequently arrived at Windfield's, MM saw that he had been woundedin the leg. Windfield told the attempted murder victim that "they" didn't mean to shoot the attempted murder victim. On the way to the hospital, Windfield's sister asked him if Windfield,...