P. v. Johnson
Filed 12/4/12 P. v. Johnson CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN DEWAYNE JOHNSON et al.,
Defendants and
Appellants.
B231891
(Los Angeles
County
Super. Ct.
No. BA347163)
APPEALS
from judgments of the Superior Court
of
County, Craig Elliott Veals, Judge. Affirmed in part as modified, reversed in
part and remanded for resentencing.
David M.
Thompson, under appointment by the Court of Appeal, for Defendant and Appellant
Kevin Dewayne Johnson.
Christine
C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant George Leon.
Law Office
of Ravis & Travis, Mark Ravis and Karen Travis for Defendant and Appellant
Keywon Clarke.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Lawrence M.
Daniels, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendants, Kevin Dewayne Johnson,
Keywon Clarke and George Leon, of three counts of
premeditated murder. (Pen. Code,
Mr. Leon of three counts of assault with and personal use of a
firearm. (§§ 245, subd. (a)(2), 12022.5,
subd. (a).) As to each count, the jury
found the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) As to each attempted murder count, the jury
found a principal in the offense intentionally discharged a firearm. (§ 12022.53, subds. (d) and (e)(1).) Mr. Clarke and Mr. Leon were
juveniles (16 years old at the time of the offenses) who were tried as
adults. Each defendant was sentenced to
96 years to life in state prison. We reverse in part, affirm as modified in
part, and remand for resentencing.
II. THE EVIDENCE
A. The Firearm Assault
The victims and the assailants were
all members of rival gangs. On July 22,
2008, Shaundre Woods was walking on 64th Street in Los Angeles, on his way to a
store on Normandie Avenue.
name="_ftnref2" title="">[2] Anthony Vance, Mr. Woods’s brother, was
riding a bicycle. A fellow gang member,
Roger Winters, was riding on the bicycle handlebars. They were confronted by defendants, rival
gang members who were outside their gang territory. Mr. Leon and Mr. Johnson were
armed. Mr. Woods recognized
Mr. Clarke as a rival gang member.
Mr. Woods shook Mr. Clarke’s hand. There had been several recent altercations
between Mr. Clarke and Mr. Woods’s brother, Mr. Vance. Mr. Clarke said, “[W]here are you all
niggers from?†Defendants displayed gang
signs with their hands. Mr. Clarke
said, “Get them niggers†and “shoot.â€
Mr. Woods, Mr. Vance and Mr. Winters all ran in the same
direction. Mr. Leon and
Mr. Johnson opened fire on Mr. Woods, Mr. Vance and
Mr. Winters as they fled.
Mr. Vance suffered multiple life-threatening gunshot wounds. Defendants ran back into their own gang’s
territory.
Officer Christopher Valento and his
partner, Officer Rachel Rodriguez, were on undercover patrol in the area. They saw a group of four African-American
males running in a direction away from the shooting scene—Mr. Leon,
Mr. Johnson and two others.
Mr. Leon and another man were holding their waistbands as they ran,
as if they were trying to maintain a grip on something. A fifth African-American, Mr. Clarke,
was riding a bicycle. It was still
daylight and the men passed within eight feet of the officers. The officers, who were in an unmarked car,
followed the men to a residence on 62nd Street.
While enroute, they heard a radio call about a shooting at 64th Street
and Raymond Avenue. Mr. Leon and
Mr. Johnson went to the rear yard of the 62nd Street residence. Three other men, including Mr. Clarke,
continued eastbound on 62nd Street towards Vermont Avenue. They were subsequently detained at 62nd
Street and Vermont Avenue.
Officer Brian Peel detained
Mr. Leon and Mr. Johnson in the rear yard of the 62nd Street
home. Mr. Leon was wearing a white
tank top and blue jeans.
Mr. Johnson was wearing a white tank top and black shorts. Officer Peel recovered a fully functional
six-shot .22-caliber revolver from a bush.
The bush was not more than five feet from where Mr. Leon and
Mr. Johnson had been standing.
There were three expended cartridges and one live bullet in the
barrel. Neither a bullet fragment found
at the scene of the shooting nor the two bullets recovered during
Mr. Vance’s surgery were fired from the .22-caliber revolver. The bullets that struck Mr. Vance could
have been fired from a different revolver.
B. The Witnesses
1. Mr. Woods
Mr. Woods appeared at trial but
refused to cooperate as a witness. He
admitted, however, that in the past he had been a gang member. Officer Hector Chairez had interviewed
Mr. Woods on July 25, 2008, shortly after the assault. Officer Chairez described this
conversation. Mr. Woods was on his
way to a store with Mr. Vance and Mr. Winters when they encountered
Mr. Clarke and two others.
Mr. Woods said Mr. Clarke was riding a bicycle. Mr. Woods knew Mr. Clarke but only
by a gang moniker. Mr. Woods knew
Mr. Clarke was from a rival gang.
Mr. Woods shook Mr. Clarke’s hand. Mr. Clarke said, “[W]here are you all
niggers from?†Mr. Clarke said,
“Get them niggers.†Mr. Woods
realized they were about to be shot.
Mr. Woods saw a .350 or .357 revolver. Officer Chairez showed Mr. Woods a
photographic lineup. Mr. Woods
identified Mr. Johnson as, “The guy that was shooting at us.†Mr. Woods did not know
Mr. Johnson’s name. But
Mr. Woods told Officer Chairez: “I
know this face by heart. I remember his
face.â€
2. Mr. Winters
Mr. Winters, who did not want
to be a “snitch,†was a reluctant witness at trial. He feared he would be harmed if he
testified. But Mr. Winters admitted
he was present when the assault occurred.
When the shooting started, he turned and ran.
Officer Chairez had interviewed
Mr. Winters on July 25, 2008.
Mr. Winters identified Mr. Johnson as a person who fired
shots. (At trial, he denied that the
gunman was in the courtroom.)
Mr. Winters identified Mr. Clarke as the person who said: “Shoot.â€
Mr. Winters saw a man with a black revolver following them as they
fled. When the gunfire stopped, the
assailant continued to follow, pointing the gun at Mr. Winters. The assailant ran closer, attempting to fire
his weapon. Mr. Winters could see
the barrel spinning. The gunman fired
five times. But all Mr. Winters
heard was a repeated clicking sound. A
firearms examiner, Officer Genaro Arredondo, testified it was possible the
ammunition was faulty and did not detonate, causing the clicking sound.
3. Crystal Anguiano
Two neighbors witnessed the
shooting—Crystal Anguiano and Yisina Chavez.
When Sergeant Paul Rodriguez first arrived at the shooting scene, he
overheard Ms. Anguiano talking with Ms. Chavez. Ms. Anguiano said she had seen the
person who fired the shots. When
Sergeant Rodriguez questioned Ms. Anguiano, she said she saw defendants
and their victims arguing and heard them yelling obscenities at each
other. She also told Sergeant Rodriguez
she had observed the person who fired the shots. Sergeant Rodriguez drove Ms. Anguiano to
field show-ups at two locations.
Ms. Anguiano identified Mr. Leon as the person who fired the
shots. She also identified Mr. Johnson
as having been present.
Ms. Anguiano identified Mr. Leon by his physical features and clothing. Additionally, she believed she had gone to
school with Mr. Leon.
Officer Everardo Amaral interviewed
Ms. Anguiano upon her return home following the field show-ups. Ms. Anguiano said she was on her porch
when she saw two groups of African-American males approaching each other from
opposite directions. They stopped in
front of her house. They were displaying
gang signs. She heard someone refer to a
specific gang. She recognized
Mr. Vance from the neighborhood.
Mr. Vance and two others began to run. She saw Mr. Leon with a pistol in his
hand. Mr. Leon shot at
Mr. Vance. She recognized
Mr. Leon because she had gone to school with him. He was wearing blue jeans and a white tank
top. (As noted above, Mr. Leon was
wearing blue jeans and a white tank top when he was apprehended.) Mr. Vance ran around a truck and into
Ms. Chavez’s yard. A bullet hit the
back of the truck.
Officer Chairez interviewed
Ms. Anguiano on August 1, 2008, one week after the shooting. Ms. Anguiano said there were four
assailants. She described the person who
fired the shots as an African-American male wearing a white tank top or muscle
shirt and blue denim jeans. She said she
heard one of the group say something like, “This is my hood.†Someone was displaying gang signs. An African-American male wearing black
basketball shorts and no shirt said:
“Just do something. Just do it.â€
Ms. Anguiano was a reluctant
witness at trial. She denied she had
seen the face of the man who fired the shots.
She testified she saw a gunman chase Mr. Vance and fire shots. Mr. Vance fell to the ground. The man with the gun stood over
Mr. Vance, a foot or two away. The
gunman continued to fire at Mr. Vance.
Mr. Vance was moving on the ground, trying to avoid the
bullets.
4. Yisina Chavez
At the time of the incident,
Ms. Chavez told Sergeant Rodriguez she had witnessed an altercation
between two groups of African-American males.
They were displaying gang signs at each other and cursing. Ms. Chavez said she retreated into her
house. She heard gunfire but did not
witness the actual shooting. Sergeant
Rodriguez drove Ms. Chavez to field show-ups at the two places where
individuals had been detained.
Ms. Chavez identified Mr. Leon and Mr. Johnson as having
been involved. She identified them by
their physical features and clothing.
Following the field show-ups,
Officer Amaral interviewed Ms. Chavez.
Ms. Chavez told Officer Amaral she was on her porch when she saw
two groups of male African-Americans headed towards each other. The first group consisted of three
African-American males—two on foot and one on a bicycle. They were headed eastbound on 64th Street
from Raymond Avenue. She recognized one
of the individuals, Mr. Vance, from the neighborhood. The second group was of four male
African-Americans walking westbound on 64th Street towards Raymond Avenue. The two groups stopped near her house and
began to argue. The second group displayed
gang signs. The three individuals in the
first group started to run. Ms. Chavez
heard two gunshots coming from the second group. Mr. Vance fell to the ground but the
gunman continued firing at Mr. Vance.
The person firing the shots was wearing a white tank top and blue
jeans.
Officer Chairez interviewed
Ms. Chavez on August 1, 2008, one week after the shooting. She said she was outside her house when three
African-American males walked past on 64th Street. They said “Hi†to her. They then became involved in an argument with
another group of African-American males.
The assailants displayed gang signs.
Ms. Chavez heard shots fired.
She ran inside her house and looked out through a living room
window. She saw Mr. Vance
running. He jumped over the front of a
white pick-up truck that was parked in a driveway and ran into her yard. She could tell Mr. Vance had been
shot. But she did not see
Mr. Vance’s assailant because the truck blocked her view. Ms. Chavez said she saw two people
chasing Mr. Vance. One was wearing
blue shorts and a white T-shirt. The
other was wearing blue jeans and a white T-shirt. The assailants fled eastbound on 64th
Street.
Ms. Chavez testified at
trial. She identified Mr. Leon and
Mr. Johnson as having been among the assailants. She repeatedly denied that she had witnessed
the actual shooting.
III. DISCUSSION
A. Premeditation
Contrary to
defendants’ assertions, there was substantial evidence they were guilty of
deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’
(People v. Stitely (2005) 35
Cal.4th 514, 543.) In [the context of
first degree murder], ‘“premeditated means “considered beforehand,†and
“deliberate†means “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed
course of action.â€â€™ (
668, 767.) We normally consider three
kinds of evidence to determine whether a finding of premeditation and
deliberation is adequately supported—preexisting motive, planning activity, and
manner of killing—but ‘[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and
deliberation.’ ([People v.] Stitely, supra, [35
Cal.4th] at p. 543.)†(
616, 645; accord, People v. Lee (2011)
51 Cal.4th 620, 636.)
In reviewing a challenge to the
sufficiency of the evidence, we apply the following standard of review: “[We] must consider the evidence in a light
most favorable to the judgment and presume the existence of every fact the
trier could reasonably deduce from the evidence in support of the
judgment. The test is whether
substantial evidence supports the decision, not whether the evidence proves
guilt beyond a reasonable doubt.
[Citations.]†(
432; accord, People v. Hovarter (2008)
44 Cal.4th 983, 996-997.) Our sole
function is to determine if any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; Taylor v. Stainer (1994) 31 F.3d 907, 908-909.) The standard of review is the same in cases
where the prosecution relies primarily on circumstantial evidence. (People
v. Maury (2003) 30 Cal.4th 342, 396; People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Our Supreme Court has held:
“Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; accord,
508.)
Defendants
armed themselves and entered rival gang territory. They sought out a rival gang member with whom
Mr. Clarke had a history of prior altercations. They asked the victims, “Where are you
from?â€â€”a phrase used to inquire about gang affiliation. Defendants displayed gang signs. Mr. Clarke ordered the attack. Defendants chased the three fleeing
victims. Mr. Leon fired a revolver
by pulling the trigger multiple times.
Mr. Leon stood over Mr. Vance.
Mr. Vance was writhing on the ground, attempting to dodge the
bullets. Mr. Leon fired directly at
Mr. Vance. Mr. Vance suffered
four life-threatening gunshot wounds.
Mr. Johnson, who was also armed, chased Mr. Winters. When Mr. Johnson was close enough for
Mr. Winters to see the gun’s barrel spinning, he attempted to fire his
weapon five times. This was
in willful, deliberate and premeditated attempted murders. (See People
v. Romero (2008) 44 Cal.4th 386, 401; People
v. Sanchez (2001) 26 Cal.4th 834, 849; People
v. Leon (2010) 181 Cal.App.4th 452, 467; People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)
B. Hearsay Identification
Mr. Johnson
challenges the admission of out-of-court
identification evidence. As noted
above, Mr. Vance, who suffered
not testify at the preliminary hearing or at the trial. However, under questioning by Deputy
District Attorney Catherine Chon, Officer Chairez testified Mr. Vance had
been shown four photographic lineups and had circled Mr. Johnson’s
picture. Mr. Johnson’s attorney,
Omar Bakari, objected generally, without specifying any ground, and moved to
strike the answer. Mr. Bakari
subsequently objected on confrontation grounds and sought a mistrial. The trial court denied the mistrial motion
and admonished the jury as follows: “You
have heard evidence in this trial concerning various statements purportedly
made by Mr. Vance . . . . Among other things, this testimony concerns
purported identifications that were or were not made by Mr. Vance . . . ,
[of] persons allegedly involved in the crimes for which the defendants are on
trial. [¶] Neither Anthony Vance nor [another victim]
will testify as witnesses in this trial.
As a consequence, you will not be able to see and hear them to assess
their credibility as witnesses. You
must, therefore, disregard any and all evidence concerning all statements as
well as any identifications purportedly made or not made by Anthony
Vance . . . . Let me
read that again. [¶] You must, therefore, disregard any and all
evidence concerning any statements as well as any identifications purportedly
made or not made by Anthony Vance . . . . Do not consider such evidence for any
purpose. Treat it as though you had
never heard of it. [¶] Very important admonition. Does everyone understand? Okay.
All right.â€
We review
the denial of Mr. Johnson’s mistrial motion for an abuse of
discretion. (People v. Gonzales (2011) 52 Cal.4th 254, 291-292;
444.) In Panah, our Supreme Court explained: “[A mistrial motion] should
be granted ‘only when “‘a party’s chances of receiving a
damaged.Չۉ۪ (People v. Ayala (2000) 23 Cal.4th 225, 282, quoting
749.) The motion should be granted only
if the trial court is informed of the prejudice and it judges the harm to be
insusceptible of being cured by admonition or instruction. (People
v. Lucero (2000) 23 Cal.4th 692, 713-714.)â€
(People v. Panah, supra, 35
Cal.4th at p. 444; accord, People v.
Gonzales, supra, 52 Cal.4th at pp. 291-292.) Here, the trial court reasonably concluded
the error could be cured by admonishment.
(People v. Gonzales, supra, 52
Cal.4th at pp. 291-292; People v. Panah,
supra, 35 Cal.4th at p. 453.) The
jury is presumed to have followed the instruction. (People
v. Gonzales, supra, 52 Cal.4th at p. 292; People v. Panah, supra, 35 Cal.4th at p. 453; People v. Harris (1994) 9 Cal.4th 407, 426.)
Moreover,
there was compelling evidence of Mr. Johnson’s guilt apart from the
out-of-court identification by Mr. Vance.
Ms. Anguiano and Ms. Chavez both testified Mr. Johnson
participated in the assault. During
pretrial interviews, Mr. Woods and Mr. Winters both identified
Mr. Johnson not only as a participant but as the person who fired the
shots. Officer Valento saw
Mr. Johnson running away from the scene of the shooting and, ultimately,
into the rear yard of a residence.
Mr. Johnson was detained, together with Mr. Leon, from that
yard. A .22-caliber revolver was found
in a bush five feet away. Any error in
admitting evidence Mr. Vance circled Mr. Johnson’s photograph was
harmless. (People v. Livingston (2012) 53 Cal.4th 1145, 1159-1166;
538-539.) In a related argument,
Mr. Johnson asserts Ms. Chon engaged in prosecutorial misconduct when
she asked Officer Chairez questions she knew would elicit inadmissible hearsay. The questioning was harmless. (People
v. Tate (2010) 49 Cal.4th 635, 689-690; People
v. Friend (2009) 47 Cal.4th 1, 33-34.)
C. Sentencing
1. Parole eligibility period
The trial
court imposed life sentences with seven-year minimum terms. (§ 3046, subd. (a)(1).) However, Mr. Johnson and Mr. Leon were each subject to a 15-year minimum parole
eligibility period. (Pen. Code, §
186.22, subd. (b)(5); People v. Lopez (2005)
34 Cal.4th 1002, 1004; People v. Montes (2003)
31 Cal.4th 350, 361, fn. 14.) Applying
the 15-year minimum term, their sentences were 120 years-to-life.
Mr. Johnson
argues: “[T]he trial court sentenced
[him] under section 12022.53, subdivisions (d) and (e)(1), which added the
additional 25 years to life. Section
12022.53, subdivision [(e)(2)] precludes the imposition of any section 186.22
term in addition to the 25 years-to-life, thus People v. Lopez . . . is inapplicable.†Mr. Clarke joins. We disagree.
Section 12022.53, subdivision (e)(2) states, “An enhancement for
participation in a criminal street gang . . . shall not be
imposed on a person in additional to an enhancement imposed pursuant to this
subdivision, unless the person personally
used or personally discharged a firearm in the commission of the
offense.†(Italics added.) Here, the jury found Mr. Johnson (as
well as Mr. Leon) personally used a firearm in the commission of the
offenses. (§ 12022.5, subd. (a).) Therefore, an enhancement for participation
in a criminal street gang could
properly be imposed as to them.
The jury
did not find, however, that Mr. Clarke personally used or discharged a
firearm. Therefore, Mr. Clarke is
not subject to a 15-year minimum parole term.
(People v. Salas (2001) 89
Cal.App.4th 1275, 1278-1282; see People
v. Campos (2011) 196 Cal.App.4th 438, 447, fn. 6; 3 Witkin, Cal. Crim. Law
(4th ed. 2012) Punishment, § 359, p. 552.)
He is subject to a 7-year minimum parole eligibility term. (§ 3046, subd. (a)(1); People v. Salas, supra, 89 Cal.App.4th at p. 1280-1281, 1283.) Applying the 7-year minimum term,
Mr. Clarke’s sentence was 96 years-to-life, subject to the following cruel
and unusual punishment discussion.
2.
Cruel and unusual punishment:
Mr. Leon and Mr. Clarke
The Eighth Amendment to the United States Constitution
prohibits imposition of “cruel and unusual punishments.†The Eighth Amendment is applicable to the
states through the Fourteenth Amendment. (People
ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707,
727.) The California Constitution
similarly prohibits “cruel or unusual punishment.†(Cal. Const., art. I, § 17.) The Eighth Amendment prohibits a sentencing
authority from determining at the outset that a juvenile nonhomicide offender
will never be fit to reenter society. (
[130 S.Ct. 2011, 2030] (Graham);
262, 268-269 (Caballero).) As noted above, Mr. Leon and
Mr. Clarke were both 16 years old when they committed the present
nonhomicide offenses. Mr. Clark’s 96
years-to-life sentence and Mr. Leon’s 120 years-to-life sentence, which
are functionally equivalent to life without parole, constitute cruel and
unusual punishment in violation of the Eighth Amendment. (Graham,
supra, 560 U.S. at p. __, __ [130 S.Ct. a pp. 2029, 2034];
268.)
In Caballero, our Supreme Court identified the procedure to be
followed in an indeterminate sentence scenario:
“Consistent with the high court’s
holding in Graham, supra, 560 U.S. __ [130 S.Ct. 2011], we conclude that
sentencing a juvenile offender for a nonhomicide offense to a term of years
with a parole eligibility date that falls outside the juvenile offender’s
natural life expectancy constitutes cruel and unusual punishment in violation
of the Eighth Amendment. Although proper
authorities may later determine that youths should remain incarcerated for
their natural lives, the state may not deprive them at sentencing of a
meaningful opportunity to demonstrate their rehabilitation and fitness to
reenter society in the future. Under Graham’s
nonhomicide ruling, the sentencing court must consider all mitigating
circumstances attendant in the juvenile’s
crime and life, including but not limited to his or her chronological age at
the time of the crime, whether the juvenile offender was a direct perpetrator
or an aider and abettor, and his or her physical and mental development, so
that it can impose a time when the juvenile offender will be able to seek parole
from the parole board. The Board of
Parole Hearings will then determine whether the juvenile offender must be
released from prison ‘based on demonstrated maturity
and rehabilitation.’ (560 U.S. at p.
__ [130 S.Ct. at p. 2030].) Defendants
who were sentenced for crimes they committed as juveniles who seek to modify
life without parole or equivalent de facto sentences already imposed may file
petitions for writs of habeas corpus in the trial court in order to allow the
court to weigh the mitigating evidence in determining the extent of
incarceration required before parole
not provide trial courts with a precise timeframe for setting these future
parole hearings in a nonhomicide case.
However, the sentence must not violate the defendant’s Eighth Amendment
rights and must provide him or her a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation’ under Graham’s
mandate.†(Caballero, supra, 55
Cal.4th at pp. 268-269.) We reverse
Mr. Leon’s and Mr. Clarke’s sentences. Upon remittitur issuance, the trial court is
to proceed as specified in Caballero,
Mr. Leon
argues we should order that he be eligible for parole after 15 years. But Caballero does
not grant us that power. And section
1170, subdivision (d)(2) has no application to this case. (Stats. 2012, ch. 828, § 1, eff. Jan. 1,
2013.) It applies only to minors who
receive life without parole sentences.
3. Consecutive life sentences: Mr. Johnson
Mr. Johnson
asserts (as did his codefendants) that the trial court abused its discretion by
failing to consider concurrent sentencing under the criteria set forth in
California Rules of Court rule 4.425.
Mr. Johnson further argues the trial court erroneously failed to
state its reasons on the record for the imposition of consecutive
sentences. Mr. Johnson did not
object to the imposition of consecutive life sentences in the trial court. He also did not object to the failure to set
forth reasons. (See § 1170, subd. (c);
Cal. Rules of Court, Rule 4.406 [court must state reasons for imposing
consecutive sentences].) As a result, he
cannot challenge the trial court’s sentencing choice on appeal. (People
v. Gonzalez (2003) 31 Cal.4th 745, 748, 751; People v. Scott (1994) 9 Cal.4th 331, 356; People v. Jones (2009) 178 Cal.App.4th 853, 859;
178, 193.) Mr. Johnson does not
claim he was deprived of a meaningful opportunity to object. (See People
v. Scott, supra, 9 Cal.4th at p. 356; see People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511.) Further, rule 4.406 of the California Rules
of Court has nothing to do with indeterminate sentences. (Cal. Rules of Court, rule 4.403;
658-659.)
Mr. Johnson argues (as
did his codefendants) that the failure to object constituted ineffective
assistance of counsel. The record is
silent as to defense counsel’s reasons for failing to object. As noted, the sentencing rules do not apply
to indeterminate sentences. Defense
counsel was under no duty to make meritless
motions or contentions. (People v.
Frye (1998) 18 Cal.4th 894, 985, overruled on a different point in
421, fn. 22; People v. Price (1991) 1 Cal.4th 324, 387.)
Also, the crimes involved separate acts of violence against
multiple victims. (See Cal. Rules of
Court, Rule 4.425 (a)(2): People v.
Caesar (2008) 167 Cal.App.4th 1050, 1061, disapproved on another point in
48 Cal.4th 1, 18; People v. Shaw (2004)
122 Cal.App.4th 453, 459.) Defense
counsel could reasonably have concluded it was unnecessary to request an
express statement of reasons. (See
at pp. 859-860; People v. Alvarado,
supra, 87 Cal.App.4th at p. 194.)
Therefore, we reject Mr. Johnson’s ineffective assistance of
counsel claim.
Moreover,
even if defense counsel should have objected, the failure to do so was
harmless. It is not reasonably probable
the trial court would have been unable to provide sufficient reasons for
imposing consecutive sentences. Nor is
it reasonably probable that, given an objection, the court would have imposed
concurrent sentences. (Cal. Const., art.
VI, § 13; People v. Alvarado, supra, 87
Cal.App.4th at pp. 194-195.)
Mr. Johnson does not argue and the record does not reflect that the
trial court thought consecutive sentences for the attempted murders were mandatory. (Id. at
p. 195, fn. 5; cf. People v. Banks
(1997) 59 Cal.App.4th 20, 22-23.)
4. The firearm assault counts: Mr. Johnson
The trial
court sentenced Mr. Johnson (and Mr. Leon) on three counts each of
firearm assault. (§ 245, subd. (a)(2).) In addition, Mr. Johnson was sentenced on
enhancements for personally using a firearm (§ 12022.5, subd. (a)) and
committing a violent felony to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(C)). The trial court stayed each of those
sentences pursuant to section 654, subdivision (a). Those sentences violate the prohibition in
section 1170.1, subdivision (f).
v. Rodriguez (2009) 47 Cal.4th 501, 508-509; People v. Martinez (2012) 208 Cal.App.4th 197, 199; see
Cal.App.4th 232, 256-257.) As a result,
the sentences on the three aggravated assault counts must be reversed. Upon remittitur issuance, Mr. Johnson is
to be resentenced on the aggravated assault counts. (People
v. Rodriguez, supra, 47 Cal.4th at p. 509; People v. Martinez, supra, 208 Cal.App.4th at p. 200.)
5. Custody credit: Mr. Johnson and
Mr. Leon
The trial
court awarded Mr. Johnson credit for 1,262 days in presentence custody and
189 days of conduct credit.
Mr. Leon received credit for 954 days in actual custody and 143
days of conduct credit. However, they
were arrested on July 23, 2008, and sentenced on March 2, 2011. They should have received 953 days of credit
for time spent in presentence custody. (
454, 469; People v. Heard (1993) 18
Cal.App.4th 1025, 1027.) In addition,
they are entitled to 142 days of conduct credit (§§ 667.5, subd. (c), 2933.1)
for a total presentence custody credit of 1,095 days.
6. Court security fee
Because
defendants were convicted on March 19, 2010, the section 1465.8, subdivision
(a)(1) court security fee imposed as to each count should have been in the
amount of $30 rather than $40. (Stats.
2009, ch. 22, § 29, eff. July 28, 2009; People
v. Davis (2010) 185 Cal.App.4th 998, 1001.)
Mr. Johnson and Mr. Leon were subject to $180 in court
security fees. Mr. Clarke was
subject to $90 in such fees.
7. Court facilities assessment
It was
error to fail to orally impose a $30 court facilities assessment. (Gov. Code, § 70373, subd. (a)(1);
269, 272; People v. Castillo (2010)
182 Cal.App.4th 1410, 1415, fn. 3.) The
assessment applies to each count. (
1200, 1226; People v. Castillo, supra, 182
Cal.App.4th at p. 1415, fn. 3.) The oral pronouncement of judgment must be
modified to reflect $180 in court facilities assessments as to Mr. Johnson
and Mr. Leon, and $90 as to Mr. Clarke.
8. Abstract of judgment: Mr. Johnson
Mr. Johnson
was sentenced to life with the possibility of parole on counts 1, 2 and 3, not
counts 1, 2 and 5 as reflected on the abstract of judgment. The abstract of judgment is incorrect in this
respect.
IV. DISPOSITION
The sentences against defendants, Keywon Clarke and
George Leon, are reversed and remanded for resentencing as discussed in section
III C 2 of this opinion. The sentence
imposed on defendant, Kevin Dewayne Johnson, is reversed and remanded for
resentencing with respect to the three firearm assault counts. The judgments are modified to: award Mr. Johnson and Mr. Leon
credit for 953 days in presentence custody plus 142 days of conduct credit for
a total presentence custody credit of 1,095 days; impose $180 in court security
fees as to Mr. Johnson and Mr. Leon, and $90 in such fees as to
Mr. Clarke; and orally impose $180 in court facilities assessments as to
Mr. Johnson and Mr. Leon, and $90 in such assessments as to
Mr. Clarke; and to reflect that Mr. Johnson is subject to a 15-year
minimum parole eligibility period. Upon
remittitur issuance and following resentencing, the superior court clerk must
prepare amended abstracts of judgment and deliver copies to the
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
I concur:
MOSK, J.
>
J. Kriegler,
Concurring.
I concur
but write separately to express my concern over the lack of guidance we, and
other appellate courts of the state, provide to the trial court as to how to
comply with the United States Supreme Court’s evolving Eighth Amendment
jurisprudence, as recently defined in People
v. Caballero (2012) 55 Cal.4th 262 (Caballero). To be sure, Caballero compels our conclusion that the individual sentences on
defendants Leon and Clarke in this case “to a term of years with a parole
eligibility date that falls outside the juvenile offender’s natural life
expectancy constitutes cruel and unusual punishment in violation of the Eighth
Amendment.†(Id. at p. 268.) The
unanswered question is how the trial court is supposed to remedy the
violation. I believe some direction to
the trial court is warranted. (
J.) [“I would provide the lower court greater guidance on remand in this case,
for we have before us a defendant on whom an unconstitutional sentence was
pronouncedâ€]; compare, People v. Argeta
(Nov. 13, 2012, B229135) ___ Cal.App.4th ___ [2012 DAR 15473, 15480] [“the
trial court’s sentencing determinations . . . must be reversed and the case
remanded for resentencing on all counts in a manner consistent with the
decision of the United States Supreme Court in Miller [v. Alabama (2012) 567 U.S.
___ [132 S.Ct. 2455] (Miller)] and our Supreme Court in Caballeroâ€].)
There are
several approaches the trial court could adopt in this case in order to
sentence Leon and Clark in a manner consistent with the Eighth Amendment. One solution would be for the trial court to
impose concurrent sentences on the three counts of attempted premeditated
murder, rather than the consecutive sentences imposed on defendants. Defendants Leon and Clarke would be subject
to concurrent sentences of seven years to life for attempted premeditated murder,
enhanced by 25 years to life under Penal Code sections 12022.53, subdivisions
(d) and (e)(1), and 186.22, subdivision (b)(1)(C). This sentence of 32 years to life would
afford these defendants an opportunity for parole eligibility well within the
period of their natural life expectancies, would “not violate the defendant[s’]
Eighth Amendment rights,†and would “provide
[them] a ‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’†(
It may well
be, however, that the trial court will again conclude after a sentencing
hearing in compliance with Caballero
that consecutive sentences are justified given the violent nature of the gang
attack in this case. If so, the court
could again re-impose the original sentence but judicially declare that
defendants Leon and Clarke are entitled to a parole eligibility hearing after a
fixed number of years, depending upon the nature of the evidence presented at
the new sentencing hearing.
This
solution appears consistent with Caballero’s
analysis, under which “the sentencing court must consider all mitigating
circumstances attendant in the juvenile’s crime and life, including but not
limited to his or her chronological age at the time of the crime, whether the
juvenile offender was a direct perpetrator or an aider and abettor, and his or
her physical and mental development, so that it can impose a time when the
juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then
determine whether the juvenile offender must be released from prison ‘based on
demonstrated maturity and rehabilitation.’â€
(Caballero,
citing Graham [v. Florida (2010) 560 U.S. __, __ [130 S.Ct. [2011,] 2030] (
A judicially
mandated parole eligibility hearing within defendants’ natural life expectancy
would satisfy the mandate of the Eighth Amendment prohibition against cruel and
unusual punishment. A strong showing of
mitigating evidence at the sentencing hearing would justify an earlier date for
parole consideration, while a weaker showing in the face of aggravating
circumstances would warrant a longer period of time prior to parole
consideration. The trial court would be
required to establish a date for consideration of parole eligibility at a point
that will “not violate the defendant’s Eighth Amendment rights and must provide
him or her a ‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation’ under Graham’s mandate.†(Caballero,
supra, 55 Cal.4th at p. 269.)
What is not
required in this case is a judicial declaration of a sentence of a determinate
number of years. To do so would be
inconsistent with the Legislature’s authority to establish the terms of
punishment, including life sentences and sentences which exceed a defendant’s
natural life expectancy. Moreover,
defendants such as Leon and Clarke have the right to a meaningful opportunity
to obtain release, but “proper authorities may later determine that youths
should remain incarcerated for their natural lives.†(Caballero,
supra, 55 Cal.4th at p. 269.)
With these
considerations, I concur in the opinion of the court.
KRIEGLER,
J.
further statutory references are to the Penal Code except where otherwise
noted.
is confusion in the record about the date of the incident. It was either July 22 or July 23, 2008.
