People v. Johnson CA4/1 ( 2020 )

Filed 11/16/20 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075649
Plaintiff and Respondent,
v. (Super. Ct. No. SCD267741)
MARLON JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed in part; remanded with directions.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Marlon Johnson of two counts of second degree murder
(Pen. Code,1 § 187, subd. (a); counts 1 and 2); and unlawful discharge of a
firearm at an occupied motor vehicle (§ 246; count 3).2 The jury found true
that regarding counts 1 and 2, Johnson: (1) personally used a firearm
(handgun) within the meaning of sections 12022.5, subdivision (a) and
12022.53, subdivision (b); (2) personally used and intentionally discharged a
firearm (handgun) within the meaning of section 12022.53, subdivision (c);
and (3) personally used and intentionally discharged a firearm (handgun)
proximately causing great bodily injury and death within the meaning of
section 12022.53, subdivision (d). Regarding count 3, the jury also found
Johnson personally used and intentionally discharged a firearm (handgun)
proximately causing great bodily injury and death within the meaning of
section 12022.53, subdivision (d).3
The court sentenced Johnson to prison for an indeterminate term of
105 years to life plus a determinate term of 7 years.
Johnson appeals, contending the five and a half year delay in charging
Johnson violated his right to due process; the admission of prejudicial
1 Statutory references are to the Penal Code unless otherwise specified.
2 The jury returned a verdict on count 2 after it was unable to reach a
verdict on the charge of first degree murder. The prosecutor withdrew the
first degree murder allegation as to count 2 and asked the jury to engage in
further deliberations on count 2 for second degree murder. The court granted
the prosecutor’s request. After resuming deliberations, the jury reached a
verdict on count 2.
3 This was the third jury who heard the evidence presented against
Johnson. The first jury was unable to reach a verdict, and the trial court
declared a mistrial. A second jury acquitted Johnson of first degree murder
on count 1 and was unable to reach a verdict on second degree murder on
count 1 as well as the other two counts. The trial court therefore declared a
mistrial at Johnson’s second trial.
2
hearsay evidence and improper expert opinion rendered his trial
fundamentally unfair; his trial counsel was constitutionally ineffective; the
matter must be remanded to allow the trial court to exercise informed
discretion to strike Johnson’s firearm enhancements; and the abstract of
judgment must be amended to accurately reflect Johnson’s custody credits.
Except for agreeing that the abstract of judgment must be corrected, we
conclude Johnson’s claims lack merit. As such, we remand the matter to the
superior court with directions to calculate the accurate number of custody
credits and correct the abstract of judgment accordingly, but we otherwise
affirm the judgment.
FACTUAL BACKGROUND
On January 9, 2011, at some point after 8:00 p.m., Keith B. and
Daryl H. left Stacie S.’s house, so Keith could walk Daryl to the bus stop.
Several neighbors as well as others who were out in the neighborhood noticed
Keith and Daryl at the street corner. They also saw a third man near the
street corner and sensed a tense situation. One person saw the third man
leaning over a car and facing the victims. Another saw the victims and the
third man walking toward each other. A different witness saw the three men
arguing and noticed that the third man was in a parking space.
At about 8:39 p.m., Stacie and numerous neighbors and passersby
heard multiple gunshots. As the third man in the parking space fired a gun,
Daryl immediately fell to the ground, and Keith tried to run away. Stray
ammunition rounds shattered the window of a car that was driving by at that
time. The shooter ran away, with the gun in his hand, toward a white Monte
Carlo parked nearby. Several neighbors heard the car start and saw it
immediately drive away.
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Keith arrived back at Stacie’s door bleeding and told her to call the
police. She called the police at 8:41 p.m. Keith died of a gunshot wound.
Daryl also was shot. A nurse practitioner, who lived in the area,
provided medical aid to Daryl until paramedics arrived, but he suffered so
many gunshot wounds that the nurse could not control the bleeding. Daryl
died as a result of multiple gunshot wounds.
The round that struck a car as it drove by caused the driver, Nadia A.,
to have cuts on her forearms and chest and glass shards and a metal
fragment in her chin.
No weapons were recovered from the scene of the shooting or Stacie’s
apartment. The police recovered eight nine-millimeter cartridge casings, a
bullet fragment, and several cigarette butts from the area where witnesses
said the shooter had been located. They recovered a bullet and a bullet
fragment from Nadia’s car and a bullet from another car parked in the area.
The cartridge casings were all fired from the same gun, and the bullets and
metal fragments were fired from the same gun. However, without the gun
itself, it was not possible to determine if the cartridge casings, bullets, and
metal fragments were all fired from the same gun. An accident
reconstructionist opined that the bullet that shot Keith passed through
Keith’s body before striking Nadia’s car.
Daryl’s blood alcohol concentration was .19, and Keith’s was .18, and
they both tested positive for marijuana. In his pocket, Daryl had a bus
schedule and bus pass.
The owner of the white Monte Carlo, April P., lived in an apartment
near where the shooting occurred. She was in a relationship with Johnson at
the time of the shooting. Johnson regularly stayed at her apartment, and on
the evening of the shooting, he had dropped her off at a family event and was
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driving her car. The Monte Carlo was parked near April’s apartment right
before the shooting.
An analysis of Johnson’s cell phone records and location data showed
that in the minutes immediately before and after the shooting, he made
several phone calls to Abdul H. at 8:34, 8:45, and 8:48 p.m. During that time,
his phone was using cell towers near where the shooting occurred. By
8:42 p.m. (about the same time that the first 911 call was placed about the
shooting), Johnson’s cell phone was moving to the area where Abdul H. lived.
Johnson’s DNA was on the cigarette butts recovered from the crime
scene.
At 9:19 p.m., Johnson arrived at the bar where April was located. He
parked behind the bar and waited for April to come outside to him. When she
got in the car, she noticed he was agitated. He explained that he “got[] into it
with a couple of guys” and asked her to drop him off at a friend’s house. She
went back inside the bar to collect her purse and tell her friends where she
was going, and Johnson had her drop him off in a residential area. At
9:26 p.m., Johnson called Ale’ishia H., the mother of his child, who lived near
where April dropped him off.
When April returned to the bar, she told her friend Jennifer P. that
Johnson had shot two people and that she wanted to go to a different bar.
Shortly thereafter, they learned from another friend that the shooting
occurred outside of April’s apartment complex.
Over the course of the next two weeks, Johnson stayed with April’s
family members and Ale’ishia’s family members. Johnson also stayed one
night in a hotel with April in a room reserved under her name.
When the police came to April’s apartment, she lied and said she lived
alone, that she had the Monte Carlo at the time of the shooting, and that she
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dropped Johnson off at some other location than where she did. The police
interviewed April a second time at her mother’s house, and she gave a
different version of events. April later retained an attorney and provided the
account she gave in court.
On January 13, 2011, a detective called Johnson’s phone number, but
when the detective identified himself, the person on the other end hung up.
On January 14, Johnson left another detective a voicemail but did not leave
his contact information. After Johnson moved out of Ale’ishia’s family’s
house, Ale’ishia gave the police permission to search it. Jennifer did not tell
the police what April had told her at the bar until several years later.
The police tried to locate Johnson by investigating contacts from his
cell phone and monitoring April and Ale’ishia. Their efforts, however, proved
unsuccessful.
When the police were unable to locate Johnson, they contacted the Law
Enforcement Communications Center (LECC) for assistance. They also put
information into the Officer Notification System so that any law enforcement
officer who might encounter Johnson would know that the San Diego Police
Department needed to speak with him. Based on information they received,
the San Diego Police Department asked the police in England, Arkansas to
look for Johnson at several addresses. There is no indication that the police
in Arkansas were able to locate Johnson at that time.
In 2016, the case came to the attention of the San Diego Police
Department’s cold case homicide team. A detective went to England,
Arkansas and obtained a phone number that he believed belonged to
Johnson’s wife. He called and spoke to her, did not mention that he was a
police officer, and asked her to have Johnson call him back. Johnson did so,
but he refused to meet with the detective in person. He denied any
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knowledge about the shootings, claimed not to know April or anything about
a Monte Carlo, and said he was not in San Diego at all in 2011.
The detective began working with the San Diego District Attorney’s
Office to obtain an arrest warrant. Johnson was arrested in Arkansas shortly
thereafter.
DISCUSSION
I
JOHNSON’S MOTION TO DISMISS FOR PREJUDICIAL DELAY
A. Johnson’s Contentions
The murders in this case occurred on January 9, 2011. Johnson,
however, was not charged until July 7, 2016—some five and a half years
later. He contends the trial court violated his state and federal rights to due
process and a fair trial by denying his motion to dismiss the charges against
him. The basis of Johnson’s motion was that his due process rights were
violated due to a prejudicial and unjustified prosecutorial delay in charging
him.
B. The Investigation
Detective Wendy Valentin and the other detectives on the case initially
came to the scene and worked for 23 hours to document the crime scene,
interview witnesses, and locate the white Monte Carlo. On January 11, two
days after the shooting, they seized the vehicle and spoke with April at her
apartment. Later that day, they searched April’s apartment. In the days
that followed, they continued interviewing witnesses and gathering evidence.
They repeatedly visited locations like April’s apartment, her mother’s home,
and Johnson’s friends’ homes in an effort to locate Johnson.
On February 1, April provided additional information about the bar she
had been at on the night of the shooting, the location where she had taken
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Johnson, and the hotel where she and Johnson had stayed after the shooting.
The detectives contacted those places to corroborate her account. They
interviewed additional witnesses, including Johnson’s own family members,
in an effort to locate him. However, they were not able to locate Johnson
through his family members and friends. And with each person a detective
contacted about Johnson, he or she would leave a business card and ask them
to call the number if there was any contact with Johnson. The detectives also
located Ale’ishia on February 15 and visited her several times over the
following months.
In the months that followed the shooting, the homicide team became
very busy with numerous other cases. For investigative assistance, the police
contacted the LECC. The LECC continued checking various databases to
locate Johnson and received information tying Johnson to several addresses
in Oklahoma and Arkansas. However, they did not locate Johnson at any of
those addresses. The police also put Johnson’s information into the Officer
Notification System. They pursued leads and worked with the police in
England, Arkansas, but they did not locate Johnson.
Detective Bruce Pendleton, from the cold case team, testified that a
case is considered “cold” when it goes unsolved for five years. The key
difference between homicide teams and cold case teams is that homicide
teams are constantly on call to investigate new cases, whereas cold case
teams have “no time constraints” to work a case.
The cold case team began investigating this case in 2016. Pendleton
determined that he needed to talk to Johnson because he was the primary
suspect. Pendleton recalled that a person who worked in the LECC had been
trying to locate Johnson. Pendleton had “some information” that Johnson
had been in Oklahoma City, Texas, and Arkansas “through the years.” One
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of the locations at which Pendleton believed Johnson could reside was
England, Arkansas. Thus, Pendleton contacted a police lieutenant in
England, Arkansas to see if the lieutenant was familiar with Johnson or
Johnson’s family. The lieutenant was familiar with Johnson; so, Pendleton
flew to Arkansas with another detective in May 2016.
Once in England, Arkansas, Johnson met with local police and “did a
bunch of computer runs . . . looking for local contacts, traffic cites, or field
interviews for Mr. Johnson.” But none were found. However, a source
provided Pendleton with a “lead” on Johnson’s wife’s cell phone number.
When the other detective flew back to San Diego, Pendleton remained
in Arkansas. He traveled to Little Rock and worked with Pulaski County
Sheriff’s Office, where he met with a detective who assisted him in running
additional computer checks on Johnson. Yet, Pendleton still failed to locate
Johnson.
Finally, Pendleton called the cell phone number of Johnson’s wife and
when she answered, he identified himself only as Bruce and asked to speak
with Johnson. Johnson’s wife did not put Johnson on the phone with
Pendleton, but about 15 minutes later, Johnson called Pendleton. During
that call, Pendleton identified himself as a detective sergeant with the San
Diego Police Department cold case homicide team. Pendleton then told
Johnson he was investigating a double homicide that occurred in San Diego
in 2011. Johnson did not want to meet with Pendleton in person but agreed
to having another call.
In the subsequent telephone conversation between Johnson and
Pendleton, Pendleton informed Johnson about the specifics of the double
homicide—it happened on January 9, 2011 at 30th and C street, the suspect
was seen getting into a white Monte Carlo that belonged to April, Johnson’s
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former girlfriend. Johnson claimed that he did not know April and had never
driven a white Monte Carlo. Johnson also told Pendleton that the last time
he was in San Diego was 2009 or 2010. Johnson also refused to give
Pendleton his home address in Arkansas.
Pendleton then interviewed Johnson’s mother, but he was unable to
discover Johnson’s home address. Fearing Johnson might flee Arkansas,
Pendleton returned to San Diego, presented the case to the District
Attorney’s Office, and obtained an arrest warrant for Johnson. Johnson was
arrested in late July 2016.
An investigator for the San Diego District Attorney’s Office, Sandi
Oplinger, became involved in the case in June 2016, the month before
Johnson was arrested. She explained that part of her role is to look at a case
“with fresh eyes,” talk to witnesses who have not been interviewed before,
and retest evidence if science has progressed since the evidence was
originally tested.
Oplinger read every report and listened to every audiotape relating to
the subject homicides. Based on the information in the file, she decided to
reinterview some witnesses who might have more information than what was
in their original statements. She also worked to clarify other ambiguities in
the investigation.
During her investigation, Oplinger discovered that a person identifying
himself as “Will” called the police from a nearby gas station right after the
shooting, but he did not provide his full name or contact information. Will
did not remain in the area after his call, and Oplinger stated she had no way
to contact him. Also, in reviewing the contents of Will’s call, Oplinger noted
that Will’s description of the shooting was inconsistent with the physical
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evidence. For example, Will said the shooter exited a gold SUV and that
there was gunfire from more than one direction.
When Oplinger reinterviewed Jennifer, Jennifer informed her that
when she was at the bar with April on the night of the shooting, April told
her Johnson had shot two people and explained she had not originally
reported the statement because she believed April was cooperating with law
enforcement and had given the police that information.
C. Johnson’s Motion to Dismiss
Before trial, Johnson filed a motion to dismiss the charges against him
based on unjustified prosecutorial delay. In that motion, he argued the five
and a half year delay between the date of the homicides and when he was
charged violated his due process rights. Johnson claimed he was prejudiced
by the delay because: (1) he suffered “prolonged anxiety and concern” and
(2) his defense was impaired because of “dimming memories and loss of
exculpatory evidence.” Specifically, he maintained that the prosecution failed
to preserve evidence of other individuals who were present in the apartment
on the night of the shooting. In addition, Johnson asserted that law
enforcement did not preserve or test certain men’s clothing found in April’s
apartment or identify April’s alleged former roommate. Also, he claimed that
law enforcement did not investigate April’s online activities.
Johnson further claimed he was prejudiced by faulty witness memories
and law enforcement’s failure to find “Will,” an alleged eyewitness to the
shootings who had called 911. Finally, Johnson asserted that law
enforcement did not timely interview another eyewitness, Antonio R. Instead
of interviewing Antonio shortly after the shootings, law enforcement did not
interview him until January 25, 2017.
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In opposition, the prosecution argued that Johnson’s motion was
premature and should await the results of trial. In the alternative, the
prosecution contended that Johnson could not show prejudice and there was
no precharging delay.
After considering the motion and opposition to the motion as well as
entertaining oral argument, the trial court denied Johnson’s motion. In
doing so, the court stated it believed Johnson “made huge efforts to avoid the
police until they finally located him years later.” The court further noted
that “it’s absolutely clear that the defendant fled, knowing the police wanted
to talk to him and- or arrest him.” The court also appeared to be skeptical
that Johnson articulated any actual prejudice attributable to the delay.
D. Applicable Law
The due process clauses of the Fifth and Fourteenth Amendments to
the United States Constitution and article I, section 15 of the California
Constitution protect a defendant from the prejudicial effects of lengthy,
unjustified delay between the commission of a crime and the defendant’s
arrest and charging. (People v. Cowan (2010) 50 Cal. 4th 401, 430 (Cowan);
People v. Nelson (2008) 43 Cal. 4th 1242, 1250 (Nelson).) When, as here, a
defendant does not complain of delay after his arrest and charging, but only
of delay between the crimes and his arrest, he is “not without recourse if the
delay is unjustified and prejudicial. ‘[T]he right of due process protects a
criminal defendant’s interest in fair adjudication by preventing unjustified
delays that weaken the defense through the dimming of memories, the death
or disappearance of witnesses, and the loss or destruction of material
physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs
before the accused is arrested or the complaint is filed may constitute a
denial of the right to a fair trial and to due process of law under the state and
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federal Constitutions. A defendant seeking to dismiss a charge on this
ground must demonstrate prejudice arising from the delay. The prosecution
may offer justification for the delay, and the court considering a motion to
dismiss balances the harm to the defendant against the justification for the
delay.’ [Citation.]” (Nelson, supra, at p. 1250; see People v. Mirenda (2009)
174 Cal. App. 4th 1313, 1327-1329 (Mirenda).)
In Nelson, supra, 43 Cal. 4th 1242, our high court explained that “[t]he
state and federal constitutional standards regarding what justifies delay
differ” and, although “the exact standard [for due process violations] under
[the federal] Constitution is not entirely settled[, i]t is clear . . . that the law
under the California Constitution is at least as favorable for the defendant in
this regard as the law under the United States Constitution.” (Id. at
p. 1251.) The court concluded that “under California law, negligent, as well
as purposeful, delay in bringing charges may, when accompanied by a
showing of prejudice, violate due process.” (Id. at p. 1255; Mirenda, supra,
174 Cal.App.4th at p. 1328.) However, a due process violation “ ‘claim based
upon the federal Constitution also requires a showing that the [prearrest]
delay was undertaken to gain a tactical advantage over the defendant.’ ”
(Nelson, at p. 1251.)
The court in Nelson also observed that “whether the delay was
negligent or purposeful is relevant to the balancing process. Purposeful delay
to gain an advantage is totally unjustified, and a relatively weak showing of
prejudice would suffice to tip the scales towards finding a due process
violation. If the delay was merely negligent, a greater showing of prejudice
would be required to establish a due process violation.” (Nelson, supra, 43
Cal.4th at p. 1256; see Ibarra v. Mun. Court (1984) 162 Cal. App. 3d 853, 858
13
[“[T]he more reasonable the delay, the more prejudice the defense would have
to show to require dismissal.”].)
Although a minimal showing of actual prejudice may require dismissal
if the proffered justification for the prearrest delay is insubstantial, by the
same token, the more reasonable the delay, the greater the prejudice the
defense must show to require dismissal. (Mirenda, supra, 174 Cal.App.4th at
p. 1327; see People v. Conrad (2006) 145 Cal. App. 4th 1175, 1185.) However,
the court need not engage in the balancing process if the defendant has failed
to meet his or her initial burden of showing actual prejudice since there is
nothing against which to weigh such justification. (Mirenda, at pp. 1327-
1328.)
Prejudice may be shown by “ ‘loss of material witnesses due to lapse of
time [citation] or loss of evidence because of fading memory attributable to
the delay.’ ” (People v. Catlin (2001) 26 Cal. 4th 81, 107, quoting People v.
Morris (1988) 46 Cal. 3d 1, 37.) “We review for abuse of discretion on a trial
court’s ruling on a motion to dismiss for prejudicial prearrest delay [citation],
and defer to any underlying factual findings if substantial evidence supports
them [citation].” (Cowan, supra, 50 Cal.4th at p. 431.)
E. Analysis
We conclude the trial court did not abuse its discretion in denying
Johnson’s motion to dismiss. Here, in discussing prejudice, Johnson focuses
on the circumstantial nature of the prosecution’s case against him. He
emphasizes that no eyewitness identified him as the shooter. He notes there
was no forensic evidence linking him to the crimes. Johnson correctly decrees
that the murder weapon was never found. However, simply pointing out the
weakness in the prosecution’s case does not establish that Johnson was
prejudiced by the delay.
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That said, Johnson argues it is important that we appreciate that the
prosecution’s case against him was based only on circumstantial evidence to
properly understand how he was prejudiced by the delay. Specifically, he
claims his prejudice “is reflected by a series of losses, i.e., what the defense
could not do and what the defense lost as a result of the delay as well as not
obtaining receipt of the state’s discovery until some five and a half years after
the shooting, post filing.” Yet, to prevail, Johnson must do more than merely
point at the passage of time and conclude evidence was lost. (Cf. Crockett v.
Superior Court (1975) 14 Cal. 3d 433, 442.) He must identify specific evidence
that he believes was lost, not speculate that he was prejudiced because
potential witnesses’ memories have faded or certain witnesses and evidence
were made unavailable. (See Shleffar v. Superior Court (1986) 178
Cal. App. 3d 937, 946.) It is this burden that Johnson cannot satisfy.
Johnson does not argue any material witness who was available in
2011 was not available for trial. Instead, he claims that if the police had
searched for Will sooner, they might have found him, and his testimony
would have been exculpatory.
Nevertheless, Johnson’s inability to produce a witness that he claims is
necessary to his defense does not automatically entitle him to dismissal of the
charges. (People v. Kirkpatrick (1972) 7 Cal. 3d 480, 486.) And Johnson has
not shown that the police would have located Will if they had searched for
him sooner. (See Cowan, supra, 50 Cal.4th at p. 434 [because the subject
evidence was missing shortly after the crime, “a more prompt prosecution
would not have benefited defendant” unless it was initiated before that
point]; People v. Abel (2012) 53 Cal. 4th 891, 910 [“Defendant has not shown
[his investigator] would have found additional records had the investigation
proceeded more quickly”].) Indeed, although he called the police, Will did not
15
leave his full name or any contact information. As such, the police had very
little information to aid them in tracking down Will.
In addition, the content of Will’s call was discussed at trial. As
Oplinger, explained, Will’s account was inconsistent with the evidence at the
scene, which indicated there was only one shooter not multiple shooters as
Will described. Further, Will was the only eye witness who claimed to see a
gold SUV at the scene of the crime. Johnson does not argue that Will could
have provided other evidence about the shooting at the trial beyond the
content of his call to the police.
Additionally, Johnson has not shown that any witnesses were unable to
remember material facts. To the contrary, Johnson claims here that he was
prejudiced because some witnesses’ memories “miraculously got better” over
the five and a half year delay. Yet, Johnson admits that, in the five years
since the shooting, law enforcement located and interviewed two witnesses
who provided details that were, in some respects, helpful to his defense. For
example, Antonio had provided the police with his contact information at the
scene of the shooting, but he was not interviewed until 2017. When he
testified at trial, Antonio had little memory of the event, but he did recall
previously stating that there was a truck involved in the shooting. However,
he also believed the shooting occurred during the day and described the
shooter being in a location that was inconsistent with the physical evidence
and the testimony of other witnesses.
Similarly, another trial witness, Drew G., had called 911 in 2011, but
was not interviewed until 2016. At the time of his interview, Drew could only
identify the general location of the shooter, not the specific place where the
physical evidence indicated the shooter stood. In his 911 call, he had
described the shooter as Hispanic or African American, but at the time of his
16
trial testimony, he believed the shooter was Hispanic. At least as to these
two witnesses, Johnson did not show any likelihood that they would have
recalled details any better for the defense had he been arrested sooner. (See
Shleffar v. Superior Court, supra, 178 Cal.App.3d at p. 946 [speculation about
prejudice is insufficient to discharge the defendant’s burden].) On this
record, we are satisfied that substantial evidence supported the trial court’s
finding that Johnson did not show he was prejudiced by the delay.
Moreover, Johnson discounts that his trial counsel was able to cross-
examine all trial witnesses and probe their fading memories and impeach
them with their inconsistencies. And defense counsel questioned the police
officers, detectives, and investigators about the investigation of Will’s call.
Thus, on the record before us, if there was prejudice, defense counsel was
able to minimize it. (See Cowan, supra, 50 Cal.4th at p. 434 [“defense
counsel was able to exploit the destruction of this evidence by pointing
out, . . . that it had never been examined” and “any prejudice from the loss of
evidence was minimal”].)
Even assuming Johnson established actual prejudice from the
precharging delay that occurred, the law is clear that “the executive branch
has broad discretion when it comes to deciding how to allocate scarce
investigative resources and when to file criminal charges in a particular case.
[Citations.]” (People v. Booth (2016) 3 Cal. App. 5th 1284, 1309 (Booth).)
Indeed, absent evidence the police or prosecutors were negligent or
intentionally dilatory in terms of handling an investigation, courts are loath
to second-guess when charges should have been brought in a particular case.
(Ibid.)
Here, Johnson contends police exercised little effort to track him down
although they knew, within two days of the homicides, that April owned the
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Monte Carlo, and after talking to her, they knew about Johnson. In this
sense, Johnson implies that he could have been easily found had the police
exerted minimal effort. The record does not support that argument.
To the contrary, the police diligently attempted to track down Johnson.
They talked to April and Ale’ishia as well as Johnson’s family members and
other friends. During this time, the record indicates that Johnson was
avoiding the police. Johnson avoided any location where the police were
looking for him, including April’s apartment and eventually April’s mother’s
house. He even stayed in a hotel one night. When a detective called
Johnson’s number and identified himself, the person on the other end of the
phone hung up. Johnson did return another detective’s call, but he did not
leave his contact information. Then, for five years, Johnson avoided creating
any significant transactions or records that might enable the LECC to locate
him. When a detective finally spoke to him on the phone, Johnson refused to
meet in person. Against this backdrop, it is difficult to cast blame on the
police or assume they were negligent in failing to arrest Johnson when
Johnson clearly was avoiding the police. (See People v. Perez (1991) 229
Cal. App. 3d 302, 313 [“[T]he fugitive, having done all he or she can do to avoid
being brought to justice, cannot then claim the denial of the right to speedy
trial resulted from the ensuing delay”].) Further, Johnson left the
jurisdiction to avoid prosecution. Under that circumstance, the prosecution,
generally, is not accountable for the delay. (Id. at p. 314.)
Moreover, the police department’s limited resources also contributed to
the delay. The necessity of allocating prosecutorial resources may cause valid
delays. (Nelson, supra, 43 Cal.4th at pp. 1256-1257.) “It is not enough for a
defendant to argue that if the prosecutorial agencies had made his or her case
a higher priority or had done things a bit differently they would have solved
18
the case sooner.” (Id. at p. 1257.) Here, the homicide team became very busy
with other homicide cases in the months after this shooting took place. The
police utilized other resources, including the LECC and Officer Notification
System. However, it was not until the cold case team took over in 2016 that
the police had the time to focus exclusively on this case without competing
obligations in other cases. With the additional time, the police located and
arrested Johnson within a matter of months.
On the record before us, we agree with the trial court that there was a
strong justification for the precharging delay that occurred. (Booth, supra,
3 Cal.App.5th at p. 1309.) Balancing that justification against the weak-to-
nonexistent showing of prejudice Johnson put forth, the trial court properly
denied his motion to dismiss. No abuse of discretion or cause for reversal has
been shown.
II
Oplinger’s Testimony
A. Johnson’s Contentions
Johnson challenges several portions of Oplinger’s trial testimony. He
argues that Oplinger testified about “vast amounts of hearsay,” vouched for
the credibility of witnesses, removed material issues from the jury, and
offered improper expert opinion. As the People point out, Johnson’s trial
counsel did not object to much of the testimony of which Johnson now
complains. Thus, the trial court was not presented with timely and specific
objections, and the prosecution was not given the opportunity to respond to
any objections that the court sustained. Accordingly, as we explain post, we
conclude Johnson forfeited his claims on these issues here.
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B. Background
Not surprisingly, a major issue at Johnson’s trial was the time that
transpired between when the crimes were committed and when he was
arrested. The prosecution therefore called witnesses to explain the
investigation of the two homicides and address the delay in arresting
Johnson. One such witness was Oplinger, an investigator with the District
Attorney’s Office.
Oplinger testified about her investigation of the case beginning in 2016.
Because her investigation began several years after the crimes were
committed, she brought “fresh eyes” to the case. Her job was to corroborate
details, talk to witnesses who had never been interviewed, and determine
whether evidence needed to be tested again. As part of her investigative role,
she was tasked with identifying inconsistencies in the evidence and trying to
reconcile them. In doing so, she reviewed 3,000 pages of material, including
every police report and audio recording. Yet, she did not reinvestigate the
entire case or reinterview every witness. Instead, she assessed whether
witness statements appeared to be “accurate” or whether witnesses appeared
to have “essential information.” When she decided to reinterview witnesses,
her purpose was to “see if they remember what they had said,” obtain more
details, or to clarify ambiguous descriptions.
For example, Oplinger explained that one of the witnesses,
Celestina O., originally reported that the victims were approaching Johnson
“in a threatening manner,” and she reinterviewed her to gain a better
understanding of what caused Celestina to describe the victims’ approaches
as threatening. Celestina told Oplinger that the victims were walking
swiftly, that Johnson was walking toward the victims at a slower pace, and
20
that she did not observe any weapons. Johnson’s trial counsel did not object
to this testimony.
During her investigation, Oplinger discovered that Drew had called 911
as an eyewitness but had never been interviewed. While testifying at trial,
Oplinger briefly summarized her interview of Drew. Oplinger testified that
Drew marked, on a diagram, the approximate location where he recalled the
shooter standing, and Oplinger observed that the exact location he marked
was not consistent with the physical evidence, but the general vicinity was
consistent with the evidence. She based her opinion on the location where
the shell casings were found and the trajectory of the bullet that struck the
van. Defense counsel did not object to this portion of the testimony.
In addition, Oplinger noticed that Rebecca Z., the girlfriend of
eyewitness Richard R., told the police that Richard had seen a man with a
gun getting into a car, but when Richard was interviewed, he left out that
detail. So, she interviewed both Rebecca and Richard again and obtained
additional information. Oplinger also testified that she believed Richard’s
statement was consistent with statements from two other eyewitnesses’
respective statements as well as the physical evidence. Although defense
counsel objected to portions of Oplinger’s testimony about her interview of
Richard on the grounds of that evidence was misstated and a question was
leading, he did not object on hearsay grounds to this portion of Oplinger’s
testimony.
However, Johnson’s trial counsel objected to a subsequent portion of
the Oplinger’s testimony when she discussed some of the physical evidence at
the scene. The subject testimony was as follows:
“Q. [Drew’s] statement, as you’ve testified to, was that
he saw one man with a gun. Is that consistent with
[Richard’s] statement that there was one man with a gun?
21
“A. Yes.
“Q. Is that consistent with the physical evidence that
there was one gun at this crime scene?
“A. Yes. We have eight nine-millimeter shell casings
that all match together. We have the missiles that were
recovered from the scene that all came from one gun. The
firearms expert can’t compare the missiles --
“[Defense Counsel]: I’m going to object to the witness
testifying as to what the expert can testify to. She
answered the question.
“[THE COURT]: I think she answered the question.
The witness is testifying as an expert, and you’ll get an
instruction on experts. You can accept an opinion. You can
reject it. You can give it some weight, great weight,
whatever you want.”
Oplinger also explained why she did not attempt to find “Will.” She
testified that Will did not leave enough identifying information to allow her
to find him. She also noted no police officer contacted Will previously. When
the prosecutor followed up on Oplinger’s statement that police had not talked
to Will by beginning to ask, “[E]ven though there was no way to contact
him—” defense counsel objected on the grounds the prosecutor was leading
the witness and misstating the evidence. The court overruled the objection.
Oplinger continued to testify that Will’s account was inconsistent with all of
the evidence she had reviewed.
Oplinger additionally explained that she located Antonio, who had not
been interviewed near the time the homicides were committed. Over defense
counsel’s hearsay objection, the court determined that Antonio’s statements
were admissible for the limited purpose of showing whether the case was
diligently investigated and “whether or not the information [Oplinger] relied
22
on [wa]s reliable information, why she has an opinion as to what happened.”
Oplinger thus summarized Antonio’s statement and opined that it was
inconsistent with the other evidence “based on where . . . the shooter came
from and the direction of the shots being fired.”
As an example of additional testing, Oplinger explained that she had a
blood trail from the scene tested for DNA to confirm that it was Keith’s blood.
Oplinger also testified that April was not cooperative during the
investigation, adding, “I know after reading the reports that the prior
detectives had done that she lied twice to law enforcement and she wasn’t, I
don’t think, a hundred percent forthcoming in her third interview on
February 1st.” She then detailed her failed efforts to interview April again.
Johnson’s trial counsel did not object to this portion of Oplinger’s testimony.
C. Analysis
Here, Johnson challenges Oplinger’s testimony with a broad brush. He
claims Oplinger’s “testimony was a blatant misuse of expert testimony,
usurped the duties of the factfinder, and essentially vouched for Oplinger’s
credibility and that of key prosecution witnesses in this case while
undermining witnesses that may have benefited the defense like ‘Will’ and
[Antonio]” As such, Johnson argues that Oplinger offered improper expert
opinions and commented on the veracity of witnesses. Yet, he does not point
to anywhere in the record where he made such objections at trial.
We observe that Johnson’s trial counsel did object to Oplinger’s
testimony when she tried to explain that the firearm expert could not
compare various bullets and casings. However, that objection was aimed at
Oplinger’s attempt to discuss what another expert could testify to: “I’m going
to object to the witness testifying as to what the expert can testify to. She
answered the question.” And the court agreed with defense counsel, and
23
Oplinger never finished explaining what the firearms expert could not testify
about. That said, defense counsel was not objecting to Oplinger opining
about whether another witness’s statement was consistent with other
witnesses’ statements or the physical evidence. Further, Johnson points to
no other objections in the record as to the scope of Oplinger’s testimony or
any other opinions that she offered.
In addition, although Johnson’s trial counsel did object to Oplinger’s
testimony about Antonio’s statements on hearsay grounds and the trial court
overruled that objection, on appeal, he does not explain why this was error.
Instead, Johnson lumps Antonio’s statements with statements of other
witnesses to which no objections were made. He then argues that none of the
statements should have been admitted at trial. In this sense, he fails to
adequately explain why the court erred in overruling the one hearsay
objection made at trial that is relevant to his appeal.
In short, Johnson tries to challenge much of Oplinger’s testimony here,
primarily because he claims it improper expert opinion and/or hearsay, but
he did not make such objections below. As such, he has forfeited these
contentions in the instant matter. (People v. Demetrulias (2006) 39 Cal. 4th 1,
19-20.) Forfeiture is especially appropriate on the record before us because
Oplinger was testifying, in part, to explain the delay in arresting Johnson
and what she did when she began to investigate this case in 2016. By failing
to object at trial, Johnson denied the prosecution the opportunity to correct
any of the errors he now claims occurred. (See People v. French (2008) 43
Cal. 4th 36, 46 [“ ‘[T]he forfeiture rule ensures that the opposing party is
given an opportunity to address the objection, and it prevents a party from
engaging in gamesmanship by choosing not to object, awaiting the outcome,
and then claiming error.’ ”]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23
24
Cal. 3d 180, 184-185, fn. 1 [“ ‘[I]t is unfair to the trial judge and to the adverse
party to take advantage of an error on appeal when it could easily have been
corrected at trial’ ”].)
Trying to circumvent forfeiture, Johnson argues any forfeiture must be
the result of ineffective assistance of counsel. We reject this contention.
To show that trial counsel’s performance was constitutionally defective,
an appellant must prove: (1) counsel’s performance fell below the standard of
reasonableness, and (2) the “deficient performance prejudiced the defense.”
(Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).)
Competency is presumed unless the record affirmatively excludes a rational
basis for trial counsel’s choice. (People v. Ray (1996) 13 Cal. 4th 313, 349;
People v. Musselwhite (1998) 17 Cal. 4th 1216, 1260.)
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (People v. Mai (2013) 57 Cal. 4th 986, 1009.)
We review trial counsel’s performance with deferential scrutiny,
indulging a strong presumption it falls within the wide range of reasonable
professional assistance, recognizing the many choices attorneys make in
handling cases and the danger of second-guessing a trial attorney’s decisions.
(People v. Maury (2003) 30 Cal. 4th 342, 389; Strickland, supra, 466 U.S. at
pp. 687-688, 694.)
Johnson’s claim of ineffective counsel arises from his trial counsel’s
failure to make certain objections to Oplinger’s testimony during trial.
However, in assessing whether counsel’s performance was deficient, we must
25
remain mindful that “[a]n attorney may choose not to object for many
reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal. 4th 495, 540.) Moreover, we generally
defer to the tactical decisions of trial counsel. (See People v. Scott (1997) 15
Cal. 4th 1188, 1212; People v. Holt (1997) 15 Cal. 4th 619, 703.)
In the instant matter, there are satisfactory explanations for defense
counsel’s conduct at trial. As the People suggest, defense counsel might not
have objected because he did not want to highlight certain testimony for the
jury. (See People v. Harris (2008) 43 Cal. 4th 1269, 1290 [no ineffective
assistance where counsel might “have decided that objecting would focus the
jury’s attention . . . in ways that would not be helpful to the defense”].) “Or
the jury may have looked bored, and the stimulus of an objection may have
awakened the jurors’ interest in a counterproductive way.” (People v.
Ramirez (2019) 40 Cal. App. 5th 305, 311.)
Yet, this may be the rare case where defense counsel’s strategy is clear
even on a cold record. Over several hearsay objections by the prosecution,
defense counsel cross-examined Oplinger regarding several witness
statements. For example, during his cross-examination of Oplinger, defense
counsel called into question whether Drew’s recollection of where the shooter
was on the night in question was consistent with the physical evidence.
Moreover, counsel’s questions caused Oplinger to reiterate that Drew
identified the shooter as a “light-skinned Hispanic male” while she agreed
that the location of the shootings was well lit and Drew had good vision.
Johnson’s trial counsel also caused Oplinger to reinforce that Richard
did not mention that he saw a black man with a gun getting out of a white
Monte Carlo when he was interviewed by the police on the night in question.
26
Instead, Richard added this new information only after Oplinger interviewed
him over five years later.
In addition, Johnson’s trial counsel asked Oplinger about the
statements of eyewitness Celestina. Through his cross-examination, counsel
caused Oplinger to admit that she wrote in her report, based on Celestina’s
statement, that two males approached a third male in an aggressive manner
and that third male stood his ground.
Defense counsel also made Oplinger testify, again over hearsay
objections, that an officer and a sergeant in the police department were
discussing the alleged identification of .22 caliber shells at the crime scene.
Yet, there were no .22 caliber shells at the crime scene, and the police had
made a mistake.
Johnson’s trial counsel also questioned Oplinger about discrepancies
between what the Computer Aided Dispatch System (CAD) indicated Antonio
had witnessed on the night of the homicides and what Antonio told Oplinger
when she interviewed him over five years later.4
Counsel additionally emphasized, through the cross-examination of
Oplinger, that no homicide detective interviewed Antonio despite him leaving
his contact information with the police. He was only interviewed by Oplinger
over five years later and, at that time, Oplinger had to remind Antonio of
where the shootings occurred. Defense counsel also got Oplinger to admit
that Antonio stated that he believed the shootings occurred between
11:00 a.m. and 4:00 p.m. and that he could not recall many of the details of
the shootings.
4 The CAD indicated that Antonio had driven by the crime scene and
might have seen something. However, Antonio told Oplinger that he had not
driven by.
27
Johnson’s trial counsel also cross-examined Oplinger on the content of
Will’s 911 call. Over a hearsay objection, Oplinger testified that Will
described the shooter as “18 to 22 years old,” said he saw the shooter leave
the scene in a gold SUV, and “seemed excited” on the call. Defense counsel
further questioned Oplinger on law enforcement’s efforts to track down Will,
getting her to admit that a clerk at a service station might have known Will
but law enforcement never contacted the clerk to locate Will.
In summary, it appears that Johnson’s trial counsel’s defense strategy
included extensively questioning Oplinger on various witness statements and
showing how the statements were inconsistent with each other and the
physical evidence. Through this cross-examination of Oplinger, counsel also
challenged the prosecution’s narrative that it diligently investigated the
homicides. On this record, Johnson cannot show that his trial counsel’s
performance fell below the standard of reasonableness. Because Johnson
cannot satisfy the first prong of the Strickland test, we need not evaluate his
claim of prejudice.5
III
THE FIREARM ENHANCEMENT
For defendants who personally used firearms in the commission of
certain qualifying offenses, section 12022.53 authorizes trial courts to impose
various sentence enhancements based on how the defendant used the
weapon: 10 years for merely using it; 20 years for intentionally discharging
it, and 25 years to life for intentionally discharging it and proximately
5 The fact that Johnson’s trial counsel extensively cross-examined
Oplinger on the content of witness statements, including pointing out
inconsistencies between them, underscores the need to find forfeiture here. It
would be unfair to the prosecution to allow Johnson to claim error only after
his defense counsel’s strategy failed to achieve the results he desired. (See
People v. French, supra, 43 Cal.4th at p. 46.)
28
causing great bodily injury or death. (§ 12022.53, subds. (b)-(d).) Although
the enhancements used to be mandatory, by the time Johnson was sentenced,
the Legislature had amended section 12022.53 to grant trial courts the
discretion, “in the interest of justice pursuant to Section 1385 . . . , [to] strike
or dismiss an enhancement otherwise required to be imposed . . . .”
(§ 12022.53, subd. (h); see Stats. 2017, ch. 682, § 2; § 1385.)
At sentencing, the trial court indicated that it had the authority to
strike the gun allegation, but it had “five reasons why [it] thought it should
not be stricken.” The court explained, “I never saw any lawful reason for the
defendant to be armed before this shooting. There w[ere] a number of shots,
the gap in time between the first series and the second series. The testimony
of the witness, particularly Keith G[.], was that the defendant shifted his
focus from Victim 1 to Victim 2, and he shot Victim 2 in the back.”
Subsequently, the trial court reiterated that it understood its discretion
to strike Johnson’s firearm enhancements but was electing not to do so. The
court clarified, “[T]o make the record real clear, I do have the legal authority
to strike any or all of the gun allegations under the current law. And I’ve
made a consc[ious] choice not to do that.” In response, Johnson’s trail counsel
argued that there was evidence that the victims were approaching Johnson
aggressively and that Johnson was standing his ground. The court clarified
that it did consider those facts but “those factors . . . for not striking it
completely overwhelm those few factors for striking” the enhancements. In
addition, although the court considered running the sentence on count 3
concurrently, it imposed the consecutive upper term for that count, after
explaining at length the factors supporting that decision.
Here, Johnson argues the trial court misunderstood that the scope of
its discretion was limited to either imposing or striking the 25-to-life
29
enhancement, specifically as to count 3. He maintains the court also had the
discretion to substitute one of the less severe enhancements if doing so was in
the interests of justice. In support, he cites People v. Morrison (2019) 34
Cal. App. 5th 217 (Morrison).
In Morrison, Division Five of the First District Court of Appeal
concluded trial courts have “discretion to impose an enhancement under
section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime
enhancement under section 12022.53, subdivision (d), if such an outcome [is]
found to be in the interests of justice under section 1385.” (Morrison, supra,
34 Cal.App.5th at p. 223.) The court relied on cases that authorize trial
courts to “impose a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is
either legally inapplicable or unsupported by sufficient evidence.” (Id. at
p. 222.) The court reasoned that a trial court’s striking of the greater
enhancement in the interest of justice under section 1385 is akin to finding
the enhancement unsupported or inapplicable. (Morrison, at pp. 222-223.)
Thus, the court “s[aw] no reason a court could not also impose one of [the
lesser] enhancements after striking an enhancement under section 12022.53,
subdivision (d) . . . .” (Ibid.)
More recently, the Fifth District Court of Appeal reached a different
conclusion in People v. Tirado (2019) 38 Cal. App. 5th 637 (Tirado), review
granted November 13, 2019, S257658. In that case, the appellate court
grounded its analysis in statutory construction and legislative intent:
“Nothing in the plain language of sections 1385 and 12022.53, subdivision (h)
authorizes a trial court to substitute one enhancement for another.
Section 12022.53, subdivision (h) uses the verbs ‘strike’ and ‘dismiss,’ and
section 1385, subdivision (a) states the court may ‘order an action to be
30
dismissed.’ This language indicates the court’s power pursuant to these
sections is binary: The court can choose to dismiss a charge or enhancement
in the interest of justice, or it can choose to take no action. There is nothing
in either statute that conveys the power to change, modify, or substitute a
charge or enhancement.” (Id. at p. 643.) “Had the Legislature intended to
grant the trial court the power to modify or reduce a firearm enhancement, it
would have done so with express language,” as it has done in other contexts.
(Ibid.; see, e.g., § 1181, subd. (6) [in ruling on a motion for new trial, “if the
evidence shows the defendant to be not guilty of the degree of the crime of
which he was convicted, but guilty of a lesser degree thereof, or of a lesser
crime included therein, the court may modify the verdict, finding or judgment
accordingly without granting or ordering a new trial”]; § 1260 [granting
appellate courts the power to “modify a judgment or order appealed from, or
reduce the degree of the offense or attempted offense”].)
The court in Tirado also noted its approach was consistent with
traditional principles reflecting prosecutorial authority to determine what
charges to bring. (Tirado, supra, 38 Cal.App.5th at p. 644, review granted.)
Thus, for example, if the prosecution had pled and proved all three firearm
enhancements under section 12022.53, subdivisions (b) through (d), the trial
court would have had the discretion to strike the greater enhancement and
impose one of the lesser ones. (Tirado, at p. 644.) “However, because the
People exercised their charging discretion to allege only one enhancement,
the trial court was limited to either imposing or striking that enhancement.”
(Ibid.)
Pending further guidance from our high court in Tirado, we subscribe
to the view expressed by the Court of Appeal in that case, and decline to
follow the holding of Morrison. Accordingly, we conclude the trial court
31
properly understood the scope of its discretion in imposing the 25-to-life
enhancement under section 12022.53, subdivision (d).6
IV
CUSTODY CREDITS
Johnson contends the abstract of judgment must be corrected to reflect
the accurate number of custody credits. He claims the trial court erred in
giving him 867 days total custody credits. Johnson maintains that he was
arrested on July 25, 2016 and sentenced on March 18, 2019. As such, he
asserts the court should have given him 967 days of custody credits.
The People agree there is a discrepancy in the record as to when
Johnson was arrested in this case, and thus, this matter should be remanded
to allow the trial court to calculate the correct number of custody credits. We
therefore will remand this matter back to the superior court for the purpose
of that court calculating the correct amount of presentencing custody credit
Johnson should receive. (See People v. Taylor (2004) 119 Cal. App. 4th 628,
647; People v. Montalvo (1982) 128 Cal. App. 3d 57, 62.)
6 We note that a recently published opinion rejected Morrison and
followed Tirado. (See People v. Garcia (2020) 46 Cal. App. 5th 786, 788, 790-
794, review granted June 10, 2020, S261772.)
32
DISPOSITION
This matter is remanded to the superior court with directions to
correctly calculate the presentence custody credits Johnson should receive.
In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
33