People v. Johnson CA4/1 ( 2022 )

Filed 12/2/22 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079257
Plaintiff and Respondent,
v. (Super. Ct. No. SCE401368)
JAVAN JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, A. Natasha Cortina and Alan L.
Amann, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Javan Johnson of two counts of robbery (Pen. Code,
§ 211), and found true allegations Johnson, though not personally armed with
a firearm, was vicariously liable as a principal during the commission of the
offenses (Pen. Code, § 12022, subd. (a)(1)). Johnson admitted he suffered a
2017 robbery that constituted a serious felony prior conviction (Pen. Code,
§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike prior conviction (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12, 668). The trial court sentenced him to a
total term of 10 years in prison: on count 1 the court imposed a three-year
midterm doubled for the strike plus one year for the Penal Code section
12022, subdivision (a)(1) enhancement; on count 2 it imposed one-third the
midterm of six years for a term of two years; it then stayed the sentence on
the Penal Code section 12022, subdivision (a)(1) enhancement, struck the
five-year serious felony prior and imposed an additional one-year consecutive
term for a probation violation.
Johnson contends with respect to count 2, the court prejudicially erred
by admitting out-of-court statements from a person who accused him of
committing the crime and others like it. He maintains the statements are
inadmissible hearsay not offered for a nonhearsay purpose, and presented to
the jury without a limiting instruction. Johnson contends the statements
should have been excluded under Evidence Code section 352 as more
prejudicial than probative, and the court’s error in admitting them was not
harmless since the victim’s identification of him at trial was weak, as was the
evidence of his guilt. We reject the contentions and affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND1
The Count 2 Robbery
In December 2019, Johnson, whose nickname was Baker, made
arrangements through a social media application with his friend J.K. to meet
at a local park to smoke marijuana and buy some marijuana from J.K. J.K.
and Johnson had played football together in high school. While J.K. was on
the way to the park, Johnson told J.K. that Johnson’s cousins would be
meeting J.K. there. J.K. arrived at the park’s lot and parked his car. He saw
a person standing some distance away and had a strong feeling it was
Johnson based on his build. When J.K. went to get the marijuana from his
vehicle’s trunk, two men who said they were Johnson’s cousins or family
approached and said they wanted to buy. J.K. came to the conclusion he was
just going to make a quick sale. J.K. and the men entered J.K.’s car, but the
men pulled out guns and told him to leave the parking lot. They hit J.K. on
the head and arm with the guns, and eventually took the marijuana, $500 in
cash, J.K.’s car keys and some paperwork. At some point, J.K. asked about
Johnson, saying “Where’s Baker?” and the men responded, “Fuck Baker. We
not [sic] giving him shit.” The men told J.K. not to try to chase them or exit
his car. The men then left, heading back towards the park.
After waiting for the men to leave, J.K. went to a convenience store and
called his mother, as he was selling marijuana and was not sure if police
1 The count 1 robbery was based on evidence that Johnson, in June 2020,
made arrangements with A.F. to purchase marijuana from A.F. When A.F.
arrived at the designated location, he was met by Johnson and two other
men. After a fourth man approached with a gun, Johnson and the other men
proceeded to take A.F.’s chain necklaces, his legally-registered gun, a pair of
shoes and an ounce of marijuana. A.F. later identified Johnson and one of
the other men in a photographic lineup. We need not rely on the facts of the
count 1 robbery to reach our conclusions in this appeal.
3
would consider him a suspect or victim. J.K.’s mother came to get J.K., who
told her he was selling marijuana to Johnson at a park but ended up getting
pistol-whipped and robbed. She immediately remembered Johnson from her
son’s high school football days as having a distinguishing face.
Once he was home, J.K. called the police and reported the robbery,
telling police he thought he had been “set up” by Johnson. Later that night,
J.K. checked the social media application he used to initially talk with
Johnson, and found that Johnson—who went by the names “Baker Cutz” and
“Polo Baker”—had blocked him. J.K. then sent a “direct message” on a
different social media application to Johnson accusing him of setting him up
and asking him who his cousins were. Johnson responded, “Mike.” When
J.K. asked who the other person was, Johnson wrote that he did not know
(“idk”).2
Police found J.K.’s vehicle abandoned on a roadway. Detectives were
unable to collect latent fingerprints from it. DNA analysis from samples of
the rear driver side and front passenger interior door handles was
inconclusive.
Pretrial Evidentiary Arguments
Before trial, counsel discussed evidence of social media direct messages
exchanged between Johnson and an unknown female who was not on the
witness list, in which the female accused Johnson of robbing J.K., which
Johnson then denied. Defense counsel considered it hearsay, and the court
2 Johnson points out that J.K. initially denied sending a message to
Johnson that evening, but when recalled to the stand admitted he did so.
The point merely raises an issue of J.K.’s credibility, which we do not assess
on appeal. (Accord, People v. Barton (2020) 56 Cal.App.5th 496, 514, citing
People v. Jones (1990) 51 Cal.3d 294, 314 [determining credibility of
witnesses is the “exclusive province” of the trial judge or jury].)
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initially agreed. The prosecutor argued the messages of the unknown female
and Johnson were offered “for the context it gives . . . . [I]t is the answer from
the defendant and the defendant’s statement and the context of that that is
relevant. [¶] So the questions from the person or the accusations aren’t
being offered for hearsay purpose, they’re being offered to explain the context
of the defendant’s response that, no, [‘]I didn’t rob [J.K.], my cousins did.[’] ”
The next day, the court ruled the evidence was admissible: “. . . I am
persuaded that there is no proffered issue. I’m also persuaded that the
evidence is relevant under [Evidence Code section] 352 analysis. It is not
unduly prejudicial. . . . . [¶] . . . [¶] I am persuaded that it does assist the
fact finder in understanding Mr. Johnson’s statement on the direct messages
. . . . And I will so indicate to the jurors that it is not the truth of the matter
asserted with what the individuals have said, but it just assists them in
making sense of what Mr. Johnson said in these messages.”
Trial
At trial, J.K. testified that when police presented him a photograph of
Johnson (trial exhibit 45), he identified him as his high school friend. He was
asked whether he saw Johnson in the courtroom. J.K. identified Johnson,
explaining that while he initially did not recognize him, he could now see
Johnson’s face and it was hard to see him with the mask on. The trial court
remarked: “Well, I’ll give him that, because I have heard other witnesses
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who can’t see through the shield.” J.K. testified he had “[n]o question at all”
that the defendant was his friend from high school.3
An El Cajon Police Department senior detective testified that she
interviewed J.K. after the incident and J.K. identified Johnson from a
photograph as the person who had set him up. J.K. gave the detective
Johnson’s social media handles, which were Polo Baker, Baker Cutz, Javan
Baker and Javan Johnson. The detective located and reviewed a social media
account for Polo Baker identifying the same birthdate as Johnson. The
detective reviewed the “return” for the account and located a conversation
between Polo Baker and a person named Ladonna. The detective recounted
the conversation and explained why it had significance to her in her
investigation:
“[Detective]: Basically Ladonna talked to Mr. Baker [Johnson] and
stated that he likes to rob people. Mr. Baker stated, you know, who— ‘who
do I like to rob?’ And Ladonna responded that ‘you robbed [J.K.].’
“[Prosecutor:] And what was his response?
“[Detective:] He denied it. And then he replied, ‘my cousin did and I
got’—. . . [¶] . . . [¶] ‘My cousin did and I got at I’m [sic] about that.’
“[Prosecutor:] And that was on January 8, 2020?
“[Detective:] Yes.
“[Prosecutor:] Four weeks or so after the December 9 incident?
3 Johnson points out that J.K.’s in-court identification occurred after J.K.
was recalled as a witness. Initially, when asked if he saw Johnson in court
J.K. responded that he did not; J.K. could not recognize Johnson even when
Johnson removed his face mask. J.K. identified Johnson from a photograph,
but still could not say he was the masked person sitting in the defendant’s
chair. J.K.’s mother, however, identified Johnson in court. This again raises
a matter of J.K.’s credibility outside our purview.
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“[Detective:] That’s correct.”4
On cross-examination, the detective acknowledged that Ladonna wrote
that she had “heard” Johnson robbed people, and Johnson’s response:
“ ‘[T]hat’s hella funny, damn people speak on my name, I didn’t do nothing
[sic] like that.’ ” The detective did not follow up as to who Ladonna was or
where she may have obtained the information. She explained: “Her account
name does not provide a contact number or even a date of birth and an
account name can be any name you list on social media. So it can be a
nickname, it can be your actual name or it can be a completely made up
name. So I did not know who in fact Ladonna was, without getting a
separate search warrant for her account information to obtain her identifying
information.”
Jury Instructions
The court instructed the jury: “During the trial, certain evidence was
admitted for a limited purpose. And you may consider that evidence only for
that purpose and for no other. So some evidence was admitted to explain the
context of certain direct, direct messages. And then certain evidence was
limited to explain what the witness did or did not do as a result of that,
receiving that information.”
4 Page 38 of People’s exhibit 1 shows the short conversation. In it,
Johnson asked when he and Ladonna were going to hang out, and Ladonna
responded that Johnson “like[d] to rob people” and she was “not with that.”
Johnson replied by asking who he robbed (“who I robe [sic]”), to which
Ladonna responded, “IDK I just heard.” Johnson wrote: “That hella funny
damn people speak on my name I didn’t do nothing [sic] like that.” Ladonna
then wrote: “U robbed [J.K.]” and Johnson responded, “Na . . . My cussin
[sic] did and I got at I’m [sic] about that.”
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DISCUSSION
I. Legal Principles and Standard of Review
“The principles governing the admission of evidence are well settled.
Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all
relevant evidence is admissible unless excluded under the federal or state
Constitutions or by statute. (Evid. Code, § 351; see also Cal. Const., art. I,
§ 28, subd. (d).)’ [Citation.] ‘The test of relevance is whether the evidence
tends “logically, naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive.’ ” (People v. Harris (2005) 37 Cal.4th
310, 337.)
“Hearsay evidence is ‘evidence of a statement that was made other than
by a witness while testifying at the hearing and that is offered to prove the
truth of the matter stated.’ (Evid. Code, § 1200, subd. (a).) Unless an
exception applies, hearsay evidence is inadmissible. (Id., subd. (b).)” (People
v. Harris, supra, 37 Cal.4th at p. 336; see also People v. Grimes (2016) 1
Cal.5th 698, 710; People v. Vasquez (2017) 14 Cal.App.5th 1019, 1037.)
“Thus, a hearsay statement is one in which a person makes a factual
assertion out of court and the proponent seeks to rely on the statement to
prove that assertion is true.” (People v. Sanchez (2016) 63 Cal.4th 665, 674.)
One exception to the hearsay rule is for a defendant’s own statements.
(Evid. Code, § 1220 [“Evidence of a statement is not made inadmissible by the
hearsay rule when offered against the declarant in an action to which he is a
party . . . .”]; see People v. Charles (2015) 61 Cal.4th 308, 323 [“Thus
authenticated as having been written by defendant, any inculpatory
statements in the letter were admissible as party admissions”].) Accordingly,
statements admitted under this exception may be used to prove the truth of
the matter stated.
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But “[e]vidence of an out-of-court statement is also admissible if offered
for a nonhearsay purpose—that is, for something other than the truth of the
matter asserted—and the nonhearsay purpose is relevant to an issue in
dispute. [Citations.] For example, an out-of-court statement is admissible if
offered solely to give context to other admissible hearsay statements.”
(People v. Davis (2005) 36 Cal.4th 510, 535-536, citing in part People v.
Turner (1994) 8 Cal.4th 137, 189-190, abrogated on another ground in People
v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5, overruled on another ground by
People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)
Thus, in People v. Turner, supra, 8 Cal.4th 137, the court admitted into
evidence testimony of a jailhouse informant recounting a conversation
between the defendant and his codefendant, Scott, about a robbery and
murder that occurred at the Torrance Airport. (Turner, at pp. 187-188.)
According to the informant, among other things, Scott remarked that he was
“ ‘in jail for a double murder that I knew nothing about’ ” and “ ‘I thought
that we were out just to do a little robbery at the Torrance Airport.’ ” (Id. at
p. 188.) During the conversation, the defendant admitted shooting both
victims. (Ibid.) Scott mentioned tying the victims up and asked why the
defendant did it. The defendant responded, “ ‘Well, you know, man, dead
witnesses don’t talk.’ ” (Ibid.) Scott made other statements about defendant
leaving the gun in Scott’s car and why defendant used and did not dispose of
a victim’s credit card. The defendant responded he thought it would be
“ ‘cool to use the card’ ” and he thought he had enough time because they
changed the license plates on the car they stole from the victims. (Ibid.)
In response to the defendant’s argument that Scott’s statements were
prejudicial inadmissible hearsay, the Supreme Court held the court properly
admitted the statements to give meaning to the defendant’s statements
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admitted under Evidence Code section 1220, and allowing the statements for
that limited purpose was within the court’s discretion under Evidence Code
section 352. (People v. Turner, supra, 8 Cal.4th at p. 189.) It explained that
providing context to a defendant’s statements is a permissible purpose
validating the admission of testimony which would otherwise be inadmissible
hearsay: “An out-of-court statement is properly admitted if a nonhearsay
purpose for admitting the statement is identified, and the nonhearsay
purpose is relevant to an issue in dispute.” (Ibid.)
The Turner court held Scott’s statements about the location and
why/how the defendant shot the victims “gave context and meaning to
defendant’s admissions.” (People v. Turner, supra, 8 Cal.4th at p. 190.) The
court explained that the defendant’s statements in response did not
necessarily refer to the shooting at issue, giving import to Scott’s statements.
(Ibid.) It also pointed out “the jury was repeatedly instructed that they were
not to consider Scott’s statements for the truth of the matter asserted, but
merely to give context to defendant’s statements.” (Ibid.) The court
presumed the jury followed those instructions. (Ibid.)
This court reviews for abuse of discretion a trial court ruling on
evidence in the face of a hearsay objection. (People v. Chhoun (2021) 11
Cal.5th 1, 47; People v. Harris, supra, 37 Cal.4th at p. 337.) The court’s
decision “will not be disturbed on appeal ‘ “except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” ’ ” (Chhoun, at p. 47;
People v. Smith (2017) 10 Cal.App.5th 297, 303.) We will affirm the court’s
ruling if correct on any ground. (People v. Charles, supra, 61 Cal.4th at p.
324; People v. Battle (2021) 11 Cal.5th 749, 800.)
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II. The Direct Messages Were Properly Admitted for a Nonhearsay Purpose
The foregoing principles compel us to conclude the trial court did not
abuse its discretion in admitting for a nonhearsay purpose Ladonna’s
statements from the social media direct messages. Her statement, “U like to
rob people . . .” and “U robbed [J.K.],” gives context to Johnson’s responses,
“Na [¶] . . . [¶] My cussin [sic] did . . . .” Johnson’s admission that his cousin
committed the robbery is relevant and inculpatory in a scenario where the
evidence permitted the jury to reasonably conclude J.K. was set up for the
robbery by Johnson, who had initially made arrangements to meet with J.K.
at the park but sent his cousins, and who J.K. believed was at the scene. The
jury could reasonably conclude the perpetrator’s statement: “Fuck Baker. We
not [sic] giving him shit” meant that the perpetrator had decided not to share
the spoils of the robbery with Johnson after all.
As in People v. Turner, supra, 8 Cal.4th 137, Johnson’s own statements
were properly admitted under Evidence Code section 1220, which does not
require them to be incriminating admissions.5 (See People v. Castille (2005)
129 Cal.App.4th 863, 876 [“Evidence Code section 1220 covers all statements
of a party, whether or not they might otherwise be characterized as
admissions”].)
Johnson also seeks to distinguish People v. Turner, supra, 8 Cal.4th 137on grounds that here, while the trial court stated it would give a limiting
instruction to the jury concerning the direct message evidence, it ultimately
did not. At the time the detective testified about Ladonna’s and Johnson’s
5 Evidence Code section 1220 provides: “Evidence of a statement is not
made inadmissible by the hearsay rule when offered against the declarant in
an action to which he is a party in either his individual or representative
capacity, regardless of whether the statement was made in his individual or
representative capacity.”
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social media direct messages, the trial court did not instruct the jury to
consider the evidence for a limited purpose. Concededly, the instruction the
court did eventually give to jurors—telling them that certain evidence was
admitted for a limited purpose and they “may consider that evidence only for
that purpose and for no other” or “[s]ome evidence was admitted to explain
the context of certain . . . direct messages”—was vague and unspecific as to
how the jury should limit its consideration. The court did not specifically
instruct the jury that it was not to consider Ladonna’s direct message
statements for the truth of what she said.
But that omission does not require reversal. It was for defense counsel
to request an appropriate or more specific limiting instruction, as absent a
request, the trial court has no duty to give an instruction limiting the purpose
for which evidence may be considered. (People v. Rodriguez (2014) 58 Cal.4th
587, 647-648; accord, People v. Smith (2007) 40 Cal.4th 483, 516 [“ ‘absent a
request by [the] defendant, the trial court has no sua sponte duty to give a
limiting instruction’ ”]; see also Evid. Code, § 355 [“When evidence is
admissible . . . for one purpose and is inadmissible . . . for another purpose,
the court upon request shall restrict the evidence to its proper scope and
instruct the jury accordingly” (italics added)].) If Johnson wanted
amplification of the instruction given by the trial court, it was incumbent
upon him to propose and craft such a modification.
In sum, the court did not err in admitting the direct message
statements for the nonhearsay purpose of giving context to Johnson’s
responses.
III. The Court Did Not Abuse Its Discretion Under Evidence Code Section 352
Nor do we agree with Johnson’s argument that even assuming the
direct message statements were properly admitted for a nonhearsay purpose,
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they were more prejudicial than probative under Evidence Code section 352
such that the court abused its discretion in admitting them. He maintains
that absent the court’s errors in admitting the statements, it is reasonably
probable the result would be more favorable to him.
The direct message statements—Ladonna’s accusation and Johnson’s
denial of his direct involvement but admission his cousin was one of the
robbery’s perpetrators—are plainly relevant to Johnson’s guilt or innocence.
We reject Johnson’s contention that the probative value is slight because
“there was no evidence of who Ladonna was, what, if any, her relationship
was to the defendant or the victim, where or how she acquired her
‘information’ or what her motives might have been in accusing [him]” of the
robbery. Johnson does not dispute that he wrote the responses, and his
responses give probative value to the challenged evidence.
Further, the premise of Johnson’s prejudice argument is that J.K. was
unsure of his identification of Johnson at trial and there was no forensic
evidence tying him to the robbery; he characterizes the evidence against him
as “very weak.” But as we have pointed out above (footnotes 2 and 3, ante),
the assertions about J.K.’s initial problems identifying Johnson raise issues
of credibility that we do not reweigh. The jury plainly believed J.K.’s later
testimony that he had “[n]o question at all” the defendant was his friend from
high school with whom he arranged the park meeting. And the People’s
theory—corroborated in part by J.K.’s social media messages to Johnson days
after the robbery—was that Johnson set up the robbery and was not in the
vehicle with J.K. that evening. Thus, the fact no fingerprints or DNA tied
Johnson to J.K.’s car does not weaken the case against him for purposes of
assessing prejudice. In our view, the probative value of the challenged
evidence “was not substantially outweighed by the probability that its
13
admission would create a substantial danger of undue prejudice.” (People v.
Scheid (1997) 16 Cal.4th 1, 13.) Johnson has not demonstrated prejudice.
DISPOSITION
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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