People v. Johnson CA4/1 ( 2022 )

Filed 3/10/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D078243
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282654)
CHANNEL JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sharon B. Majors-Lewis, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff
and Respondent.
Channel Johnson stabbed her friend after a verbal argument. Johnson
contended she was acting in self-defense, but a jury convicted her of
attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a
deadly weapon (id., § 245, subd. (a)(1); count 2), and cruelty to a child by
inflicting mental suffering (id., § 273a, subd. (b); count 3). The jury further
found that the attempted murder was willful, deliberate and premeditated
(id., § 189); that Johnson personally used a dangerous and deadly weapon, a
knife (id., §§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)); and that she
personally inflicted great bodily injury (id., §§ 1192.7, subd. (c)(8), 12022.7,
subd. (a)).
On appeal, Johnson contends the trial court erred when it allowed the
prosecution to introduce evidence of a prior stabbing incident under Evidence
Code section 1101, subdivision (b).1 She also contends the trial court erred
when it denied her motion for a new trial based on newly discovered evidence
that the victim committed an unrelated assault shortly before Johnson’s trial.
(Pen. Code, § 1181, subd. (8).) Johnson argues that, even if these errors are
not prejudicial by themselves, they cumulatively amount to reversible error.
We find no prejudicial error on this record and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution’s Case
1. Victim K.G.
K.G. has four young children and described her living situation as
“[h]omeless.” When she testified, she had a scab by her eye, which she said
was caused when she tripped and slid while playing with her children. She
admitted she had previously attempted to cash checks that were not hers.
K.G. testified that she and Johnson were good friends. They went to
school together when they were younger, and they later lived together at
1 Unspecified statutory citations are to the Evidence Code.
2
K.G.’s brother’s house. They spent time together every day, and Johnson had
a good relationship with K.G.’s children.
In the days leading to the stabbing, K.G. had been sleeping in a car
with her children. One night, she and her children stayed with Johnson in a
hotel room. Then K.G. went to stay with another friend and ignored calls and
messages to her phone. The day before the stabbing, Johnson texted K.G.
saying she was a “bad friend” and a “selfish friend.”
On June 14, 2018, K.G. and her children were spending time with
friends near a loading dock. K.G. sat at the top of some stairs with her
daughter N.C. while the youngest child slept in a stroller and the other
children played nearby. Around 3:45 p.m., Johnson approached by foot,
asking K.G. why she did not answer her phone, telling her she was “selfish,”
that her kids were “dirty,” and that she was going to “fuck [K.G.’s] baby
daddy.” K.G. told Johnson “[her] kids aren’t dirty,” and she and Johnson
continued to exchange words. At one point, K.G. saw Johnson pull a knife
from her purse; the knife was “closed” but Johnson “swung it open” and held
it near her hip. K.G., who had been sitting at the top of the stairs near the
loading dock, stood and went down the stairs, telling Johnson “ ‘don’t play’ ”
and “ ‘stop playing.’ ” Johnson and K.G. argued about money, and K.G. threw
money on the ground, but then picked it up and walked back toward the
stairs. Johnson came toward K.G. as K.G. backed up toward the stairs; K.G.
grabbed a glass liquor bottle from the ground nearby and threw it at
Johnson, thinking it would make Johnson drop the knife. Johnson then
“charged [toward K.G.] and said she was going to kill [her].” K.G. ran into
the street and Johnson chased her, swinging the knife so close that it cut the
back of K.G.’s shirt. K.G. ran back to the stairs, but turned and tripped going
up the stairs, and fell, landing on her back. Her daughter N.C. was standing
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nearby holding a bag of chips, and swung the bag at Johnson, who pushed
her away. Johnson stood over K.G. and said, “ ‘Bitch, I’m going to kill you,’ ”
and swung at K.G.’s chest with the knife, cutting her twice. Johnson dropped
the knife; when Johnson moved “like she was going to go for the knife again,”
K.G. slid the knife away. Johnson then ran off.
K.G. testified she was not drinking at the loading dock but she had “a
shot of alcohol” earlier in the day. She testified that, in addition to throwing
the liquor bottle, she may have also thrown a water jug, but she did not
remember clearly. K.G. testified she did not threaten Johnson or throw
anything at her before seeing the knife in Johnson’s hand.
2. Sylvia
Sylvia J., who knew Johnson by the name “Lovely,” testified that she
and her mother were in a car in the liquor store parking lot when Johnson
approached the car, saying she would pay them to give her a ride.2 Her
mother refused and locked the car door. Johnson approached the passenger
door and again asked if she could get a ride. When Sylvia refused, Johnson
“took off running.” Sylvia noticed blood on Johnson’s hand and on her
clothes. Sylvia went around the corner and saw K.G. sitting with her arms
crossed across her chest, “trying to hold the blood that was coming out of
her.” Sylvia took two of K.G.’s children across the street because she did not
“want them seeing their mom like that.”
3. Eyewitnesses
a. N.C.
K.G.’s seven-year-old daughter N.C. testified that Johnson and her
mother used to be friends and that she loved Johnson, who was “like an
2 Evidence established that Johnson had a tattoo on her leg with the
word “ ‘Lovely.’ ”
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auntie” to her. N.C. remembered a time when she had to push Johnson
“because [Johnson] had a knife in her hand and tried to cut [N.C.’s] mom.”
N.C. was playing with her siblings and cousins down the street from a liquor
store. Her mother was there talking to another friend when Johnson came.
N.C. saw her mother throw a glass bottle at Johnson. Then she saw Johnson
chasing her mother “[a]round cars” with a knife in her hand. Her mother did
not have a knife. N.C. was on top of the stairs when she pushed Johnson to
try and get her away from her mother. N.C. used two hands and pushed
Johnson, and then Johnson pushed N.C. to the side using one hand. Then
N.C. saw Johnson “hurt [her] mom” with the knife and saw blood coming out
from her mother’s chest. N.C. was upset and afraid when she saw Johnson
coming at her mother with a knife. She still thinks about the incident “a lot.”
b. Carnell M.
Carnell M. testified that K.G. was a friend of his, and Johnson was
someone he recognized. He was behind the liquor store when Johnson
stabbed K.G.3 K.G. was drinking that day. He testified he did not see the
“entire stabbing” and “didn’t really know how it happened” because “it was
behind [him].” He recalled speaking to police after the incident. A video of
his conversation was captured on the officer’s body worn camera and was
played for the jury. Carnell told the officer that K.G. and Johnson were
“usually best friends,” but that day they were arguing. It “started like they
[were] about to fight,” but then Johnson “pulled a knife out.” K.G. “started
running from her.” She ran behind a car and back around toward Carnell
while Johnson ran after her. Johnson was “swinging the knife the whole time
3 Carnell said that he usually drank alcohol every day, beginning in the
morning, but had not drunk the day he testified and felt sick as a result.
5
she was chasing her.” K.G. fell trying to move her child out of the way, and
Johnson stabbed her. Carnell called 911.
c. Carla J.
Carla testified that K.G. was a friend of hers but claimed she did not
know Johnson. She said she was behind the liquor store that day but when
she testified she claimed she did not see “what happened to K.G.” and only
“saw the aftereffects of what happened to her.”4 However, Carla spoke with
officers at the scene immediately after the incident, and videos of her
conversations captured on body-worn cameras were played for the jury.
Carla told an officer she “saw every goddamned thing.” Carla said Johnson
“chased [K.G.] up the way and stabbed her . . . [as] she was cornered.” Carla
told another officer she saw a “ho” named “Lovely” stab K.G. She described
“Lovely’s” hair style and attire. Carla said the women started fighting and
“cussed each other out.” Johnson walked away but came back “talking shit.”
K.G. “talk[ed] shit back to her,” and then Johnson pulled out a knife. K.G.
“jump[ed] up and trie[d] to run,” but Johnson “cornered her” and stabbed her
in front of “everybody.” Carla said Johnson made a stabbing motion “four or
five times,” and said, “she tried to kill the girl in front of the kids.”
Carla acknowledged that, on prior occasions, she had seen K.G. be
“aggressive or violent” and testified she had previously seen an “altercation”
between K.G. and the father of K.G.’s child.
4 An investigator with the district attorney’s office testified that, during
an interview, Carla had told him she did not want to testify in court and was
“afraid of being labeled a snitch,” or someone who cooperates with law
enforcement, and “afraid of putting herself . . . in danger.”
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4. Law Enforcement and Medical Professionals
A City of San Diego police officer testified that on the afternoon of
June 14, 2018, he responded to a call regarding an assault with a deadly
weapon and stabbing. He found K.G. sitting on a loading dock, “bleeding
severely” from her chest. There was a knife nearby, and K.G. told the officer
that Johnson had stabbed her with it. K.G. was transported by ambulance to
a hospital.5 After K.G. received medical treatment for her wound, she told
the officer that Johnson had texted her the previous day and confronted her
at the loading dock that afternoon, demanding money.
A detective obtained video surveillance footage of the incident from a
location approximately 30 feet away from the loading dock area. The footage
was played for the jury. The video is somewhat pixelated, and portions of the
incident—particularly the final moments prior to the stabbing—are partially
blocked from view and unclear. The video shows Johnson approaching the
loading dock where K.G. was sitting, waving her arms in an animated
manner, then chasing K.G. into the street while swinging at her with her
right arm, chasing her up the loading dock steps, and swinging her arm in a
stabbing motion.
Officers located and arrested Johnson one week later. She had a
laceration on her left thumb but no other visible injuries. Officers collected a
DNA sample from Johnson upon arrest.
The folding knife used in the stabbing was collected at the scene. No
fingerprints were found on the knife, but DNA samples of bloodstains on the
5 An emergency room physician testified that K.G. was actively bleeding
from a laceration on her chest that was nearly six inches in length. The
physician referred K.G. to the operating room for exploration and closure of
the wound. Thirty staples were used to close the wound.
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knife were analyzed––two from the handle and two from the blade. The
blood on the knife’s handle contained DNA from two people, one who
contributed 99 percent of the DNA, and a second person who contributed one
percent. K.G. was identified as the major contributor, but the identity of the
second contributor could not be established conclusively. The blood collected
from the left side of the blade consisted solely of K.G.’s DNA, while the blood
from the right side of the blade contained a two-person DNA mixture with
K.G. as the major contributor at 93 percent and Johnson as the minor
contributor at seven percent.
5. Evidence of the 2011 Stabbing of E.P.
E.P. testified that Johnson stabbed him in February 2011. Johnson
was dating E.P.’s stepbrother at the time, and they came to E.P.’s apartment.
E.P. was outside with his children while they played. Johnson became angry
when E.P. refused to share his marijuana, and they began arguing. At one
point, E.P. turned to watch his children, and when he turned back, Johnson
stabbed him with a knife in the stomach, neck, and arm. E.P. promptly lost
consciousness. He did not remember if Johnson said anything prior to
stabbing him. E.P. regained consciousness five days later and spent a month
in the hospital, where he underwent multiple surgeries. E.P. said he was
“[t]errified” to testify with Johnson in the courtroom. Photos of his injuries
were shown to the jury.
B. Defense Case
1. Johnson
Johnson testified on her own behalf. She stated that she became
friends with K.G. when they were in school together. They lost contact but
became reacquainted about a year before the incident, when Johnson “used to
prostitute for [K.G.’s] brother.” Johnson and K.G. spent time together every
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day, and Johnson thought of K.G. as her best friend. Johnson also spent time
with K.G.’s children.
Johnson made money as a prostitute and would help K.G. by giving her
money or buying food and clothes for her children. However, Johnson felt
that K.G. spent the money improperly on alcohol or her “baby dad[dy],”
rather than on her children. When Johnson refused to give K.G. money, K.G.
would get upset and “cuss[] . . . and yell[]” at Johnson.
K.G. and her friends frequently congregated near the loading dock, and
Johnson worked nearby as a prostitute. A few days before the incident,
Johnson learned that K.G. and her children were sleeping on the street.
Johnson had a motel room and offered to allow K.G. stay the night with her
children if she was willing to split the cost of the room. K.G. agreed. That
night, Johnson left the motel room to work as a prostitute, and when she
returned after midnight, K.G. was not there, but her children were asleep in
the room. After that, Johnson and K.G. only had contact via text or phone.
Johnson saw K.G. with her friends near the loading dock the afternoon
of June 14. Johnson asked the group if they had seen a friend, and K.G.
responded that she had not but she “heard [Johnson] was talking shit about
[her] and [her] kids.” Johnson walked away because she did not want to
argue with K.G. “unless [K.G. was] going to give [Johnson] [her] money.”
Johnson returned to the area about a half hour later. She testified that
K.G. had been “drinking a lot” and was “belligerent now,” and K.G. started
yelling at Johnson and calling her “the B-word.” Johnson said that, when she
returned, she approached K.G., laughing at her, “[l]ike [K.G. is] broke, and I
have money.” They argued back and forth, saying derogatory things to each
other. K.G. was sitting on the stairs, drinking brown liquor or brandy from a
large bottle, over 10 inches tall. Johnson testified that “when K.G. drinks,
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she sometimes get[s] aggressive.” Johnson told K.G. she was going to “fuck
[K.G.’s] baby daddy and get the money,” and K.G. stood up and came toward
Johnson with the liquor bottle in her hand. At the bottom stair, K.G.
“busted” the bottle on the ground and swung the broken bottle at Johnson.6
K.G. nearly struck Johnson as she swung, coming within an inch or two of
Johnson’s chest. Johnson dropped her purse and flicked open the blade of her
pocketknife, which she kept in her waistband for protection.
Johnson said the two then “squar[ed] off.” K.G. moved backward,
swinging the broken bottle, and Johnson moved forward, swinging her blade.
Johnson said she swung at K.G. because K.G. broke the bottle and swung it
first, and K.G. was “bigger than [her].” K.G. swung the bottle, and it “flew
out of her hand” and struck Johnson’s leg. K.G. then “darted towards the
street,” and Johnson “darted towards her.” Johnson said she felt scared and
felt she needed to protect herself because she believed that K.G. had a
combination padlock that “could be used to be a deadly weapon.” However,
Johnson acknowledged that K.G. had nothing in her hands as Johnson
chased her and “swung [her] arm . . . with the knife once or twice.”
As Johnson chased K.G. and swung the knife near the loading dock, the
knife “flew out of [Johnson’s] hand” onto the loading dock ramp. Johnson
said she and K.G. both raced to the stairs, each trying to grab the knife first.
Johnson believed K.G. would try to cut her with the knife if she got it first.
K.G. got to the stairs first and Johnson “walk[ed] backwards a little bit”
because K.G.’s friends were on the stairs. Johnson testified she was “like,
lingering, but [she did not] know if [she] should like walk away or not.” K.G.
6 When shown a photograph of the scene, Johnson acknowledged she
could not identify the broken bottle or pieces of glass K.G. allegedly broke off
and swung at her.
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picked up a gallon water jug, lifted it over her head, and threw it at Johnson,
striking her near her shoulder. Then K.G. “grab[bed] [N.C.] and push[ed]
[N.C.] towards [Johnson].” Johnson “moved [N.C.] out [of] the way with [her]
arm.” By now, K.G. was at the top of the stairs. K.G. fell or dove and
grabbed the knife and then “sliced [Johnson’s] thumb” as Johnson moved
N.C. out of the way. Johnson stated she wanted to “[g]et the knife away from
[K.G.]” because she “was scared [K.G.] was going to cut [her] again.” Johnson
kicked and punched K.G. with a closed fist, “like a windmill hit,” and grabbed
the knife from K.G.’s hand. She “slic[ed]” K.G., dropped the knife, grabbed
her purse, and walked away. Johnson heard K.G.’s friends yelling, and she
began to run. She tried to get a ride to seek medical attention for her cut
thumb. Eventually she called a friend for a ride and friends helped her
bandage her hand. She did not call the police because she knew an arrest
warrant for a parole violation had been issued. Johnson was arrested a week
later “for [her] parole warrant.” After she was jailed, she was sent for
medical treatment; the wound on her hand required surgery to repair a
severed tendon.
Johnson testified that she was “worried about K.G. . . . with the knife”
because she had seen her “get drunk, and then assault people.” One time,
K.G. got in a fight with someone she had been drinking with “and beat her up
real bad.” She had seen K.G. fight or strike other people on other occasions,
both women and men.
Johnson also testified about the 2011 stabbing of E.P. She had known
E.P. since she was 16 years old. In 2011, her female cousin—a minor—had
run away from home and was staying with E.P. Her cousin texted around
2:00 or 3:00 in the morning saying “she had to bust open a window because
[E.P.] locked her outside” when she was naked. Johnson told her cousin that
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she would come get her later after Johnson woke up. Johnson, who lived
about four or five blocks away, left for E.P.’s house around 1 p.m. When
Johnson arrived at E.P.’s, E.P. would not let her cousin get her things.
Johnson and E.P. got in each other’s faces and Johnson “pushed him out of
[her] face,” saying “ ‘Get out [of] my face.’ ” He “came back to [her] face,” she
pushed him again, and “he socked [her] in [her] eye,” giving her a black eye.7
Johnson “ended up swinging on him again,” and he grabbed her, scratching
her neck. She fell to the ground and pulled her knife from her purse. They
“kept on fighting.” Johnson said E.P. “was drunk and high” and “[h]e ran up
on [her]” and “every time he ran up” she “swung and cut him.” Someone told
them to stop fighting, and E.P. lifted his shirt; Johnson realized he was badly
cut and got scared, so she left. Johnson later told detectives she picked up a
piece of glass from the ground and cut E.P. with it; in her testimony, Johnson
admitted she lied to detectives because she actually stabbed E.P. with a
knife. She was arrested and convicted of felony assault with a deadly weapon
for E.P.’s stabbing. When asked at trial about the prior and current offenses,
Johnson explained that the prior offense “was like unreasonable self-defense”
because E.P. did not have a weapon when he “got physical” with her—but
Johnson “felt like it was complete self-defense” with K.G. because K.G. “had a
weapon.” Johnson also stated that she “was really afraid [for her] life”
because K.G. “had a weapon on [Johnson].”
2. John H.
John H. lives near the loading dock. On June 14, he heard “a lot of
commotion” and “arguing.” He looked out his apartment window—across the
street—and saw two women he recognized. He did not know them by name,
7 Photographs of Johnson with a black eye, taken February 14, 2011,
were shown to the jury.
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but he knew K.G. and her children because he had known K.G.’s mother and
he knew Johnson from the neighborhood. He “did not see an attempted
murder” and did not see “nobody trying to stab nobody.” He saw Johnson
“probably desperate to keep somebody from hurting them” and “trying to
defend themselves from a monster.” He said K.G. had “a stick or something
in her hand or she was throwing something.” “[S]he would back it up and she
tripped and fell,” and “the other woman was coming toward her.” “[T]he
woman with the ponytail [Johnson] just walked up,” “[a]nd it was like . . . she
was slicing,” “[a]nd then she turned and walked away . . . and then all of the
sudden, all these police came.” He did not leave his apartment when the
police arrived and the police did not come to his apartment to question him.
C. Rebuttal Testimony
The prosecutor recalled K.G. to testify, and she denied drinking from a
large 10-inch bottle of liquor at the time of the incident. She said the bottle
she threw at Johnson was “small,” about six inches long. K.G. denied
breaking the bottle before throwing it. She denied Johnson’s claim that the
knife flew from Johnson’s hand and said the only time she saw the knife out
of Johnson’s hand was “after [K.G.] was cut.” She denied having a lock on
her and denied pushing N.C. toward Johnson.
D. Closing Arguments
The prosecutor argued that Johnson’s statement to K.G. that she was
“ ‘going to kill [her],’ ” and her actions of chasing and stabbing K.G. in a
vulnerable part of her body, her chest, showed an intent to kill. The
prosecutor argued that a cold, calculated decision to kill can be reached
quickly, and that here, Johnson’s testimony that she considered walking
away, but then continued pursuing K.G. with the knife before stabbing her in
the chest demonstrated that the attempt to kill was deliberate and
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premeditated. The eyewitnesses’ statements to the police at the time of the
incident were credible, even if it was clear that Carnell and Carla did not
want to testify in court.
The defense argued that the evidence did not support the inference that
Johnson intended to kill K.G. Instead, the evidence showed that Johnson
was angry with K.G. and became fearful when they began to fight, and
Johnson defended herself against K.G., who Johnson believed was drunk and
violent and possibly armed with a padlock she could use as a weapon.
E. Conviction and Sentencing
The jury convicted Johnson on all counts: attempted murder
(Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a deadly weapon (id.,
§ 245, subd. (a)(1); count 2), and cruelty to a child by inflicting injury (id.,
§ 273a, subd. (b); count 3). The jury also found true the allegation that the
attempted murder was willful, deliberate, and premeditated (id., § 189). In a
bifurcated proceeding, the trial court found true prior strike (id., §§ 667,
subds. (b)-(i), 668, 1170.12) and prior serious felony conviction (id., §§ 667,
subd. (a)(1), 668, 1192.7, subd. (c)) allegations. The trial court sentenced
Johnson to a determinate term of nine years8 plus an indeterminate term of
14 years to life for the premeditated attempted murder. The trial court
additionally imposed and stayed a concurrent 12-year term for count 2 (id.,
§ 654) and imposed a term for count 3 but gave credit for time served.
8 The nine years was comprised of one year for the personal use of a
dangerous and deadly weapon enhancement (Pen. Code, § 12022,
subd. (b)(1)), three years for the personal infliction of great bodily injury
enhancement (id., § 12022.7, subd. (a)), and five years for the prior serious
felony conviction (id., § 667, subd. (a)(1)).
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DISCUSSION
I.
Evidence of Uncharged Acts
Johnson contends the trial court erred when it allowed the prosecution
to introduce evidence of the 2011 stabbing incident under section 1101,
subdivision (b). She contends the evidence was more prejudicial than
probative under section 352 and that admitting the evidence deprived her of
her constitutional right to due process.
A. Additional Background
Prior to trial, the prosecution moved to admit evidence of the 2011
stabbing of E.P., for which Johnson was convicted of assault with a deadly
weapon and sentenced to five years in prison. The prosecutor represented
that, in the 2011 stabbing incident, Johnson told E.P. she was going to kill
him. The prosecution argued the prior offense was substantially similar to
the current offense, it was relevant and admissible to prove Johnson’s intent
in stabbing K.G., and the high probative value of the prior stabbing incident
was not substantially outweighed by its prejudicial effect. The defense
argued the evidence was prejudicial and the jury would use it improperly as
propensity evidence.
At the motion in limine hearing, the trial court agreed the evidence was
“very probative” but indicated it usually does not allow such evidence to be
admitted because the jury might “use it for propensity, especially when
15
the . . . assaultive behavior is identical.”9 The prosecutor argued the
evidence was admissible to prove intent—because Johnson told each victim
she intended to kill them before each stabbing—and to show that Johnson did
not stab K.G. in self-defense. Defense counsel requested that the court
conduct a section 402 hearing if it was considering allowing the evidence of
the prior offense to be admitted.
The trial court agreed to hold a section 402 hearing. The court
informed the parties that it would not allow any evidence for purposes of
propensity, but the evidence could be offered for “some other fact [at] issue,
such as intent, absence of mistake, and so forth.”
At the hearing, the prior stabbing victim (E.P.) testified that Johnson
was dating his stepbrother at the time of the offense. On February 13, 2011,
Johnson and the stepbrother visited E.P.’s apartment. When E.P. was
outside with his two young children, he and Johnson got into an argument,
but E.P. could not recall what it was about. At one point, E.P. turned to
check on his children who were five feet away. When he turned back,
Johnson stabbed him in the stomach, neck, and arm with a knife. E.P. did
not recall what, if anything, Johnson said to him before or after she stabbed
him. As a result of his injuries, E.P. spent a month in the hospital and
underwent multiple surgeries. E.P. stated he did not want to testify because
9 The trial court expressed a general reluctance to admit evidence under
section 1101, subdivision (b), stating: “I have sincere concerns always when
an 1101(b) is being offered that it’s more prejudicial than probative because it
is hard to say, ‘Tell them not to use it for propensity.’ And I have a fear that
they will use it for propensity, especially when the—the assaultive behavior
is identical, a knife, somewhere on someone else’s body. [¶] So I usually
don’t allow it.”
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he was afraid for his life and he was concerned that Johnson would hurt him
in retaliation.10
After E.P.’s testimony, the prosecution reiterated the argument that
the incidents were very similar and the prior incident was highly probative of
Johnson’s intent and the absence of mistake or accident in the current
incident. The defense argued the evidence was highly prejudicial and
irrelevant to show intent in the subsequent incident. The trial court ruled
that, based on the similarities between the two incidents, the court would
allow evidence of the prior stabbing to show Johnson’s intent and the absence
of mistake or accident in this case.
E.P.’s testimony at trial, which is detailed ante, largely tracked his
statements at the section 402 hearing, except that he recalled that he and
Johnson argued about E.P.’s failure to share marijuana. In addition, E.P.
testified regarding his condition after the stabbing and photographs of his
injuries were introduced as evidence.
The jury was instructed:
“You may consider [the evidence of the 2011 stabbing of
E.P.] only if the People have proved by a preponderance of
the evidence that the defendant, in fact, committed the
uncharged act. [¶] . . . [¶]
“If you decide that the defendant committed the uncharged
act, you may, but are not required to, consider that
evidence for the limited purpose of deciding whether the
defendant acted with the intent to kill [K.G.] in this case; or
the defendant’s alleged actions were not the result of a
mistake or accident.
10 The record indicates that Johnson laughed out loud when E.P. testified
he did not want to testify because he was afraid for his life.
17
“In evaluating this evidence, consider the similarity or lack
of similarity between the uncharged act and the charged
offenses.
“Do not consider this evidence for any other purpose except
for the limited purpose of determining the defendant’s
intent or absence of mistake or accident.
“Do not conclude from this [evidence] that the defendant
has a bad character or is disposed to commit crime.
“If you conclude that the defendant committed the
uncharged act, that conclusion is only one factor to consider
along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of the crimes
charge[d] in Counts 1-3 or that any allegations have been
proved. The People must still prove each charge and
allegation beyond a reasonable doubt.” (See CALCRIM
No. 375.)
The jury was also instructed that, to prove Johnson was guilty of
attempted murder, the prosecution must prove that she took at least one
direct but ineffective step toward killing another person and that she
intended to kill that person. (CALCRIM No. 600, see Pen. Code, §§ 187, 664.)
The jury was instructed that, to find Johnson guilty of willful, deliberate, and
premeditated attempted murder, it was required to find that she “intended to
kill when she acted,” “carefully weighed the considerations for and against
her choice and, knowing the consequences, decided to kill,” and “decided to kill
before completing the act of attempted murder.” (See CALCRIM No. 601,
Pen. Code, §§ 187, 189, 664.) The jury was additionally instructed on self-
defense as a defense to the charges of attempted murder and assault with a
deadly weapon.11
11 The trial court instructed the jury with CALCRIM No. 3470 (which
applies in non-homicide cases) rather than CALCRIM No. 505 which contains
18
During closing arguments, both parties discussed the limited purpose
of the evidence of the prior stabbing. The prosecutor stated, “we’re not saying
that this is—she did it before or she did it again. That’s not what this
evidence is for. This evidence is specifically to prove that when the defendant
acted on June the 14th of 2018, that she intended to kill [K.G.]. And you
consider what she did to [E.P.], seeing if she intended to kill [K.G.]. [¶] And
you also consider this prior stabbing incident as evidence to show
that . . . what the defendant did with [K.G.] on June 14, 2018, was not the
result of a mistake or an accident. That [Johnson] wasn’t having to act in
self-defense for a second time against a second individual that she stabbed.”
Defense counsel similarly admonished the jury, “Now, you cannot use that to
say, Well, if she did it once, she did it again.”
B. Applicable Law
Evidence of other crimes or bad acts is inadmissible when offered to
show that a defendant had the criminal disposition or propensity to commit
the crime charged. (§ 1101, subd. (a).) However, “ ‘ “ ‘[O]ther crimes’
evidence is admissible under . . . section 1101, subdivision (b) ‘when offered
as evidence of a defendant’s motive, common scheme or plan, preparation,
intent, knowledge, identity, or absence of mistake or accident in the charged
crimes.’ ” [Citation.] “In this inquiry, the degree of similarity of criminal acts
is often a key factor, and ‘there exists a continuum concerning the degree of
similarity required for cross-admissibility, depending upon the purpose for
which introduction of the evidence is sought: “The least degree of
similarity . . . is required in order to prove intent . . . .” . . . By contrast, a
higher degree of similarity is required to prove common design or plan, and
“a correct statement of the law” in the context of an attempted murder
charge. (People v. Waxlax (2021) 72 Cal.App.5th 579, 591 (Waxlax).)
19
the highest degree of similarity is required to prove identity.’ ” ’ ” (People v.
Scully (2021) 11 Cal.5th 542, 586 (Scully).)
If the court determines the evidence is relevant and admissible under
section 1101, subdivision (b), the court must next determine whether the
probative value of the evidence is substantially outweighed by the probability
that its admission would create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury. (People v. Ewoldt (1994)
7 Cal.4th 380, 404 (Ewoldt); § 352.)
“ ‘ “We review for abuse of discretion a trial court’s rulings on relevance
and admission or exclusion of evidence under Evidence Code sections 1101
and 352.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.) “We will not
disturb its ruling on appeal absent a showing that it exercised its discretion
in an arbitrary manner resulting in a manifest miscarriage of justice.”
(Scully, supra, 11 Cal.5th at p. 587.)
C. Analysis
Johnson contends evidence of the prior stabbing was erroneously
admitted because it was not relevant to show Johnson’s intent to kill, and the
evidence was more prejudicial than probative. It is unnecessary for us to
decide whether the trial court abused its discretion in admitting evidence of
the prior offense because any assumed error was harmless on this record.
“The principal factor affecting the probative value of an uncharged act
is its similarity to the charged offense.” (People v. Zepeda (2001)
87 Cal.App.4th 1183, 1211.) As our Supreme Court has explained: “The least
degree of similarity (between the uncharged act and the charged offense) is
required in order to prove intent. . . . In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the
inference that the defendant ‘ “probably harbor[ed] the same intent in each
20
instance.” ’ ” (Ewoldt, supra, 7 Cal.4th at p. 402.) “ ‘ “The inference to be
drawn is not that the actor is disposed to commit such acts; instead, the
inference to be drawn is that, in light of the first event, the actor, at the time
of the second event, must have had the intent attributed to him by the
prosecution.” ’ ” (People v. Chism (2014) 58 Cal.4th 1266, 1306 (Chism).)
Some aspects of the prior and current offenses here were similar: In
both incidents, Johnson knew the victim; was angry with the victim; went to
the victim’s location with a knife; had a verbal argument with the victim;
stabbed the victim in the center mass of the body while the victim was
unarmed and while the victim’s children were nearby; and immediately fled
the scene after the stabbing. And in both instances, Johnson asserted she
acted in self-defense. Based on these similarities, the jury could reasonably
reject Johnson’s claim in the charged offense that she stabbed K.G. in self-
defense (see, e.g., People v. Cortes (2011) 192 Cal.App.4th 873, 916; People v.
Vidaurri (1980) 103 Cal.App.3d 450, 457-459), and instead conclude that she
acted intentionally and deliberately executed a planned attack on her friend.
(See People v. Pearson (2013) 56 Cal.4th 393, 443 [“ ‘An intentional killing is
premeditated and deliberate if it occurred as the result of preexisting thought
and reflection rather than unconsidered or rash impulse.’ ”].) However,
because the prior offense was remote in time and there was no significant
nexus between the two victims or the two offenses, there was some risk that
the prior offense impermissibly painted the defendant as someone who was
predisposed to violence. (See People v. Dryden (2021) 60 Cal.App.5th 1007,
1020-1021 (Dryden) [evidence of defendant’s assault during an altercation
with his father did “not increase the probability that defendant fabricated a
self-defense claim [six] years later under entirely different circumstances”
against a group of strangers]; cf. Vidaurri, at pp. 457-459 [prior incident in
21
which defendant threatened security guards with a knife was admissible to
“rebut defendant’s contention [as to present crime] that he drew his knife
only in self-defense” approximately two months later].)12
It is unnecessary for us to resolve whether the trial court erred in
admitting evidence of Johnson’s prior stabbing under section 1101,
subdivision (b). Even assuming that an error occurred, there is no reasonable
probability the jury would have reached a more favorable verdict had the
evidence of the prior stabbing been excluded. (People v. Watson (1956)
46 Cal.2d 818, 836 [error is reversible if there is a reasonable probability that
a result more favorable to defendant would have been reached in absence of
error]; People v. Felix (2019) 41 Cal.App.5th 177, 187 [applying Watson
harmless error test to consideration of evidence pursuant to sections 1101
and 352].)
The central disputed issue here was whether Johnson stabbed K.G. in
self-defense. As previously noted (see fn. 11, ante), the jury was instructed
with CALCRIM No. 3470 (applicable to non-homicide offenses) rather than
CALCRIM No. 505 (applicable to attempted murder). “The difference
between CALCRIM No. 3470 and CALCRIM No. 505—that is, the difference
between self-defense in the homicide context and self-defense that will justify
an assault—lies in the type of the threat the defendant believed they faced.
To justify a homicide or attempted homicide, the defendant must believe that
‘danger’ or ‘great bodily harm’ is imminent, whereas an assault committed in
self-defense may be justified if the defendant feared that any ‘bodily injury,’
or even an ‘unlawful touching,’ was imminent.” (Waxlax, supra,
12 “No specific time limits have been established for determining when an
uncharged offense is so remote as to be inadmissible,” and “significant
similarities between the prior and the charged offenses may ‘balance[ ] out
the remoteness.’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 284-285.)
22
72 Cal.App.5th at pp. 591-592.)13 “For both homicide and assault, the
amount of force the defendant uses must be no more than reasonably
necessary to fend off the perceived threat.” (Id. at p. 592.) And the defendant
must actually believe in the need to defend herself against the imminent
peril. (See People v. Horn (2021) 63 Cal.App.5th 672, 682; People
v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)
Even without evidence of the prior offense involving E.P. in 2011, the
evidence negating Johnson’s claim of self-defense in the instant case was
overwhelming. The remaining evidence convincingly undermined Johnson’s
testimony that she was in fear of any imminent danger. The surveillance
video showed Johnson approaching the loading dock where K.G. was sitting,
waving her arms in an animated manner, then chasing K.G. into the street
while swinging at her with her right arm, chasing her up the loading dock
steps, and swinging her arm in a stabbing motion. All three eyewitnesses
testified that Johnson was armed with a knife and chased and stabbed K.G.
Seven-year-old N.C. testified that Johnson chased and cut her mother with a
knife. N.C. acknowledged her mother threw a bottle at Johnson but testified
13 Neither party has addressed whether the jury should have been
instructed with CALCRIM No. 505 under the circumstances of this case—
where the defendant was charged with both attempted murder and non-
homicide offenses, and the defendant claimed she feared for her life because
the victim had a combination padlock that “could be used to be a deadly
weapon.” (See Waxlax, supra, 72 Cal.App.5th at p. 592 [trial court did not err
in instructing jury solely with CALCRIM No. 505 where “the evidence did not
implicate the difference between the two types of self-defense” because the
defendant “provided the same justification for the attempted murder charge
as he did for the assaults”—namely, that “he feared great bodily harm”
rather than “an unlawful touching or a simple injury”].) We take no position
on whether the court correctly instructed the jury here by only using
CALCRIM No. 3470.
23
her mother did not have a knife. N.C. said she tried to push Johnson away
because Johnson was trying to cut her mother, but Johnson pushed N.C. out
of the way and stabbed her mother. Both Carnell and Carla testified that the
women were arguing verbally; Johnson pulled a knife, K.G. tried to run
away, and Johnson chased and stabbed her. Even Johnson’s defense witness
testified that K.G. “tripped and fell,” while Johnson “was coming toward her,”
and that Johnson “just walked up,” “slic[ed]” K.G., and “turned and walked
away.” Johnson claimed that she feared for her life during the argument
with K.G., but her own testimony of her purported fear is not dispositive. (In
re Christian S. (1994) 7 Cal.4th 768, 783 [“[W]hether the defendant actually
held the required belief is to be determined by the trier of fact based on all
the relevant facts. It is not required to accept the defendant’s bare assertion
of such a fear.”].)
Even assuming Johnson actually believed she was in imminent danger,
the jury could conclude she used more force than reasonably necessary under
the circumstances. (See People v. Hardin (2000) 85 Cal.App.4th 625, 630
[self-defense is not available where defendant exceeds the amount of force
necessary in view of the nature of the attack].) Although Johnson claimed
that she only pulled her knife after K.G. swung a broken bottle at her, when
shown photographs of the scene, Johnson acknowledged there was no
evidence of the broken bottle K.G. allegedly used—and the jury could
reasonably reject Johnson’s testimony that K.G.’s friends must have removed
the evidence before the police arrived. Notably, Johnson also repeatedly
acknowledged that she chased K.G., swinging the knife at her, while K.G.
was unarmed. Johnson further admitted that she considered walking away
from the altercation before she chased K.G. up the stairs with a brandished
knife and “sliced” her. And Johnson fled from the scene after stabbing K.G.,
24
which demonstrated a consciousness of guilt and further negated her claim of
self-defense. (See People v. Anderson (2018) 5 Cal.5th 372, 391; People v.
Turner (1990) 50 Cal.3d 668, 694, fn. 10 [“The prosecution theorized that
defendant intended to murder and rob the victim. Defendant claimed an
unintentional killing in self-defense and also denied an intent to steal. Under
these circumstances, the prosecution was entitled to use evidence of guilty
flight to help prove defendant’s criminal state of mind.”].)14
Finally, we reject Johnson’s claim that admission of the evidence
violated her due process rights. “The introduction of improper evidence
against a defendant does not amount to a violation of due process unless the
evidence ‘is so extremely unfair that its admission violates “fundamental
conceptions of justice.” ’ [Citation] For the erroneous admission of evidence
to amount to a denial of due process, the evidence must have been
‘ “sufficiently material to provide the basis for conviction or to remove a
reasonable doubt that would have existed on the record without it.” ’ ”
(Dryden, supra, 60 Cal.App.5th at pp. 1025-1026.) For reasons already
discussed, ante, we conclude this “standard has not been met here.” (Id. at
p. 1026.) In sum, the central issue in dispute was whether Johnson stabbed
K.G. in self-defense; there was overwhelming evidence of defendant’s guilt
even absent the other-crimes evidence—including testimony from multiple
witnesses (and the defendant herself) that she chased after K.G. with a
drawn knife while K.G. was unarmed; and there was no reasonable
probability that Johnson would have obtained a more favorable result absent
14 The jury was instructed in relevant part, “If the defendant fled
immediately after the crime was committed or after she was accused of
committing the crime, that conduct may show that she was aware of her
guilt.” (See CALCRIM No. 372.)
25
the assumed error. We therefore reject Johnson’s due process claim. (See
People v. Westerfield (2019) 6 Cal.5th 632, 700 [even assuming trial court
erred in allowing evidence prohibited by § 1101, subd. (a), defendant did not
establish such assumed error “resulted in a fundamentally unfair trial that
offends due process”].)
II.
Newly Discovered Evidence
After trial but before sentencing, Johnson filed a motion for a new trial
based on newly discovered evidence that, one week before trial, K.G.
“violently attacked and robbed a woman on a city bus.” (Pen. Code, § 1181,
subd. (8).) The trial court denied the motion. Johnson contends that the
prosecution’s failure to disclose an assault incident in which K.G. was the
aggressor violated her rights, prevented her from presenting a complete
defense, and deprived her of her ability to effectively confront and cross-
examine K.G. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) Johnson
further contends the trial court erred when it denied her motion for a new
trial based on the new evidence.
A. Additional Background
Police reports reflect that, on October 2, 2019––six days before
Johnson’s trial began––K.G. verbally and physically assaulted a woman on
an MTS bus. The incident was captured on MTS bus surveillance footage.
Two of K.G.’s children were present during the incident. During the assault,
K.G. pushed the woman, struck her with open hands and closed fists, kicked
her in the head, and struck her in the head with a backpack. K.G. also broke
the woman’s cell phone and took her baseball cap, which was worth about
$40. As she struck the victim, K.G. yelled, “ ‘over my brotha,’ ” and called the
26
victim a “ ‘punk ass’ ” and “ ‘Dyke ass bitch.’ ”15 K.G.’s child told her,
“[M]omma, stop, stop.” After the attack, K.G. and her children exited the
bus. The bus driver reported the incident to the police. The victim provided
a description of K.G. but did not disclose her name.
On October 8, 2019––the day Johnson’s trial began––the detective
assigned to K.G.’s assault case reviewed the MTS bus surveillance footage.
He recognized K.G. from a previous contact but could not remember her
name. Sometime between October 8 and 15, the detective determined K.G.’s
identity and on October 15, compiled a six-pack photographic lineup that
included her image. On October 21––the day before the jury rendered its
verdict in Johnson’s case––the victim identified K.G. as the person who had
assaulted her on the bus. According to the investigating detective, K.G. made
false and misleading statements about the incident when she was
interviewed. K.G. was arrested on October 23 and was charged with robbery,
assault with force likely to produce great bodily injury, and misdemeanor
vandalism. She pled guilty to the felony assault charge and received
probation. The prosecutor did not inform defense counsel about the incident
until after K.G. was arrested—which was one day after the jury had rendered
its verdict in Johnson’s case.
In support of her motion for a new trial, Johnson argued that evidence
of K.G.’s violent attack of the woman on a bus supported Johnson’s self-
defense claim and cast doubt on K.G.’s credibility. Johnson further argued
the evidence would have caused at least one juror to reach a different
conclusion at trial, specifically with respect to the Penal Code section 189
15 According to the police report attached to Johnson’s new trial motion,
K.G. claimed the victim of the assault had previously threatened to kill K.G.’s
brother (who later committed suicide), and started “ ‘talking shit’ ” to K.G.
27
allegation that the attempted murder was willful, deliberate, and
premeditated.
Prior to sentencing Johnson, the trial court heard argument on her new
trial motion. Johnson argued the newly discovered evidence of K.G.’s assault
was material because “it goes to [K.G.’s] veracity and to her character.” The
evidence showed that K.G. had lied to police and denied any involvement in
the bus assault. K.G.’s veracity was crucial “because she was the only person
to testify during the trial to the statement by Ms. Johnson of ‘bitch, I’m going
to kill you.’ And that was integral in the People’s argument for the [Penal
Code section 189] allegation.” Johnson further argued that evidence of K.G.’s
assault of a woman on the bus was admissible to show her character for
violence, which was crucial in this case where “[K.G.] was held out to be a
non-violent person.”
The prosecutor explained that she had not learned of the assault until
after trial, when she called K.G. to inform her of the verdicts. The prosecutor
argued that although K.G. had committed an assault, she did not use a
weapon other than a backpack (such as a knife or a padlock). The prosecutor
further argued that, aside from K.G.’s testimony, there was ample evidence of
Johnson’s intent to kill from the surveillance video footage and the testimony
of three eyewitnesses, and that evidence of K.G.’s assault would not change
the outcome of a new trial.
Initially, the trial court described the evidence as “a specific instance of
conduct” and rhetorically asked whether the evidence would have been
admissible at trial. After defense counsel referred to section 1103, the trial
court added that it likely would have excluded the evidence under section 352
because introducing evidence of the assault would require “a trial within a
28
trial.”16 Ultimately, the trial court found that if evidence of K.G.’s assault
was presented to a jury, it would not cause “one juror to think differently
about this case.” The court explained that evidence that K.G. had assaulted
someone under different circumstances is “not going to be able to necessarily
overcome what’s clearly visible in this particular case on the video and with
percipient witnesses. Whether [K.G.] was violent or not before this particular
situation in this case is less valuable because on that particular day there are
multiple witnesses who saw that Ms. Johnson was the aggressor on that day.
Ms. Johnson was the one that came fired up with a knife. Ms. Johnson was
the one who chased [K.G.] in the street. There was an allegation that [K.G.]
threw . . . a small bottle of wine at her at some point but not necessarily as an
instigator.” The court found that “there is no way the jury can actually
ignore all of that.” The court observed that “there was no evidence on that
day that [K.G.] was the aggressor,” and “[t]he evidence all pointed to
[Johnson] being the aggressor.” Based on the foregoing, the trial court found
the outcome at trial “wouldn’t have changed” with the evidence of K.G.’s
assault and denied the motion for new trial.
B. Applicable Law
A criminal defendant has a due process right to pretrial discovery of
information favorable to his defense. (Brady, supra, 373 U.S. at p. 87.) The
government has a constitutional duty to disclose both exculpatory evidence
that casts doubt on the defendant’s guilt and impeaching evidence that calls
16 Evidence of a crime victim’s character is admissible if “[o]ffered by the
defendant to prove conduct of the victim in conformity with the character or
trait of character.” (§ 1103, subd. (a)(1); see People v. Wright (1985) 39 Cal.3d
576, 587 [“ ‘It has long been recognized that where self-defense is raised in a
homicide case, evidence of the aggressive and violent character of the victim
is admissible.’ ”].)
29
into question the credibility of government witnesses. (Strickler v. Greene
(1999) 527 U.S. 263, 280-282 (Strickler).) The Brady rule “extends to
evidence known to others acting on the prosecution’s behalf, including the
police.” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709; see
People v. Robinson (1995) 31 Cal.App.4th 494, 499 (Robinson) [“The scope of a
prosecutor’s disclosure duty includes not just exculpatory evidence in his
possession but that possessed by investigative agencies to which he has
reasonable access.”].) Moreover, “[t]he duty to provide discovery is not
limited to the time before trial; discovery is an ongoing responsibility, which
extends throughout the duration of the trial and even after conviction.”
(People v. Kasim (1997) 56 Cal.App.4th 1360, 1383-1384.)
“ ‘ “There are three components of a true Brady violation: The evidence
at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.”
[Citation.] Prejudice, in this context, focuses on “the materiality of the
evidence to the issue of guilt and innocence.” [Citations.] Materiality, in
turn, requires more than a showing that the suppressed evidence would have
been admissible [citation], that the absence of the suppressed evidence made
conviction “more likely” [citation], or that using the suppressed evidence to
discredit a witness’s testimony “might have changed the outcome of the trial”
[citation]. A defendant instead “must show a ‘reasonable probability of a
different result.’ ” ’ ” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176
(Letner and Tobin).)
On appeal, the defendant bears the burden to establish the components
of a Brady violation. (Strickler, supra, 527 U.S. at pp. 289, 291.) We
independently review whether such a violation occurred but give “great
30
weight to any trial court findings of fact that are supported by substantial
evidence.” (Letner and Tobin, supra, 50 Cal.4th at p. 176.)
“In ruling on a motion for new trial based on newly discovered
evidence, the trial court considers the following factors: ‘ “1. That the
evidence, and not merely its materiality, be newly discovered; 2. That the
evidence be not cumulative merely; 3. That it be such as to render a different
result probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case admits.” ’ ”
(People v. Delgado (1993) 5 Cal.4th 312, 328, italics added.) “[W]hen a
defendant makes a motion for a new trial based on newly discovered
evidence, [s]he has met [her] burden of establishing that a different result is
probable on retrial of the case if [s]he has established that it is probable that
at least one juror would have voted to find [her] not guilty had the new
evidence been presented.” (People v. Soojian (2010) 190 Cal.App.4th 491,
521.)
C. Analysis
There is no real dispute that the suppression component of Brady is
met here. The prosecutor had a duty to disclose the assault involving K.G.
during trial even if the prosecutor was actually unaware of the information
until after the verdicts were rendered. (People v. Jimenez (2019)
32 Cal.App.5th 409, 419 [“suppression occurs when the government
withholds evidence either willfully or inadvertently”], see Strickler, supra,527 U.S. at pp. 281-282.) Officers identified K.G. as the suspect in the
assault sometime between October 8 and 15, during the pendency of trial,
and the victim identified K.G. as her attacker on October 21, the day before
the jury rendered its verdict. Because law enforcement was aware of the
31
assault, the evidence was in the prosecution’s possession during the trial.
(Robinson, supra, 31 Cal.App.4th at p. 499.)
In addition, the parties do not dispute that the evidence was favorable
to the defense. Under section 1103, subdivision (a)(1), a defendant may
introduce evidence that the victim had a propensity for violent aggression to
support the inference that the victim was the aggressor in their altercation—
forcing the defendant to resort to deadly self-defense. (People v. DelRio
(2020) 54 Cal.App.5th 47, 54.)
The parties dispute whether the requirements of materiality and
prejudice are met here. Johnson argues that, had evidence of K.G.’s tendency
for violence been admitted at trial, Johnson could have persuaded at least
one juror that she was not guilty at least with respect to the allegation that
the attempted murder was willful, deliberate, and premeditated. She argues,
“The prosecution was permitted to present [K.G.] as a non-violent person who
was only caring for her children at the time of the incident, and who was
attacked by [Johnson] without provocation in front of her children. In fact,
the evidence the jury did not hear showed that [K.G.] was willing to lash out
and violently attack and even rob other people in front of her children. The
jury should have been presented with the evidence of [K.G.]’s actions on the
MTS bus that occurred one week before [Johnson’s] trial. Had the jury been
provided with that evidence, it is reasonably probable that at least one of the
jurors would have found [Johnson] not guilty of attempted first-degree
murder.” The Attorney General argues that, “given the strength of the
evidence refuting [Johnson’s] self-defense claim and establishing her guilt, a
different result was not reasonably probable” even if evidence of K.G.’s
assault was presented to the jury on retrial. We agree with the Attorney
General.
32
Although “the term ‘Brady violation’ is sometimes used to refer to any
breach of the broad obligation to disclose exculpatory evidence—that is, to
any suppression of so-called ‘Brady material’ . . . strictly speaking, there is
never a real ‘Brady violation’ unless the nondisclosure was so serious that
there is a reasonable probability that the suppressed evidence would have
produced a different verdict.” (Strickler, supra, 527 U.S. at p. 281; accord
Letner and Tobin, supra, 50 Cal.4th at p. 176.) “The requisite ‘reasonable
probability’ is a probability sufficient to ‘undermine[] confidence in the
outcome’ on the part of the reviewing court. [Citations.] It is a probability
assessed by considering the evidence in question under the totality of the
relevant circumstances and not in isolation or in the abstract. [Citation.]
Further, it is a probability that is, as it were, ‘objective,’ based on an
‘assumption that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision,’ and not
dependent on the ‘idiosyncrasies of the particular decisionmaker,’ including
the ‘possibility of arbitrariness, whimsy, caprice, “nullification,” and the
like.’ ” (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Johnson contends the evidence was material because it would have
countered the “characterization of [K.G.] as a peaceful person,” and it would
have impeached K.G.’s credibility. But K.G. was already portrayed in part as
non-peaceful. The jury was presented with evidence that K.G. had been
drinking in the presence of her children the day of the incident, and Johnson
testified that K.G. “sometimes gets aggressive” when she drinks. Another
witness testified she had seen K.G. be “aggressive or violent” on prior
occasions, corroborating Johnson’s testimony that K.G. sometimes acted
aggressively. Moreover, “ ‘impeachment evidence has been found to be
material where the witness at issue “supplied the only evidence linking the
33
defendant(s) to the crime,” [citations], or where the likely impact on the
witness’s credibility would have undermined a critical element of the
prosecution’s case [citation]. In contrast, a new trial is generally not required
when the testimony of the witness is “corroborated by other testimony.” ’ ”
(People v. Salazar (2005) 35 Cal.4th 1031, 1050.) Here, even without K.G.’s
testimony, there was overwhelming evidence that Johnson was the aggressor.
As previously discussed, all three eyewitnesses testified that Johnson was
armed with a knife and chased and stabbed K.G. Johnson’s own witness
testified that K.G. “tripped and fell” while Johnson “was coming toward her,”
and that Johnson “just walked up,” “slic[ed]” K.G., and “turned and walked
away.” Johnson repeatedly acknowledged that she chased K.G., swinging the
knife at her, while K.G. was unarmed, and she considered walking away from
the altercation before chasing K.G. again, stabbing her, and then fleeing the
scene.
This same evidence—including Johnson’s decision to arm herself with a
knife before approaching K.G., arguing with her, and ultimately chasing and
stabbing her while she was unarmed—supports the allegation that the
attempted murder was willful, deliberate, and premeditated. Even without
K.G.’s testimony that Johnson threatened to kill her, the evidence
demonstrates Johnson was acting based on “ ‘ “preexisting thought and
reflection rather than unconsidered or rash impulse.” ’ ” (People v. Burney
(2009) 47 Cal.4th 203, 235.) Armed, Johnson pursued as K.G. retreated,
chasing her between cars, back up the stairs, and onto the landing. K.G.
tripped and fell, but Johnson continued, knife in hand, and was undeterred
when young N.C. attempted to push her away. (See People v. Nazeri (2010)
187 Cal.App.4th 1101, 1116 [that defendant had multiple “opportunities to
turn back” before pursuing his wife with a knife in hand supported a
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reasonable inference that he was “already resolute on the use of deadly
force”]; People v. Memro (1995) 11 Cal.4th 786, 863 [jury could infer
defendant “considered his options” as he ran toward a victim standing
178 feet away].) One eyewitness saw Johnson “swinging the knife the whole
time she was chasing [K.G.]”; another watched as Johnson “cornered” and
stabbed K.G. Having sliced the back of K.G.’s shirt early in the chase,
Johnson twice slashed K.G.’s chest while standing over her, suggesting “ ‘a
reasoned decision to kill.’ ” (See People v. Lewis (2009) 46 Cal.4th 1255,
1293.) In light of this evidence of premeditation and deliberation, and ample
evidence already presented as to K.G.’s violent tendencies, we conclude
Johnson has not shown a “ ‘ “ ‘reasonable probability of a different result’ ” ’ ”
if the jury heard about an unrelated assault against a woman on a bus who
K.G. claimed had previously threatened her brother. (Letner and Tobin,
supra, 50 Cal.4th at p. 176.) The undisclosed evidence would not have “put
the whole case in such a different light as to undermine confidence in the
verdict.” (In re Miranda (2008) 43 Cal.4th 541, 575.)
Similarly, we reject Johnson’s claim that the trial court’s refusal to
grant her motion for a new trial based on the newly discovered evidence of
K.G.’s assault incident constitutes an abuse of discretion. Johnson argues
that she met her burden to establish a different result is probable on retrial
because it is reasonably likely that at least one juror would have found K.G.
unreliable. For the reasons discussed in our Brady analysis, we conclude it is
not reasonably probable Johnson would obtain a more favorable result if the
case were retried and she could use the evidence of K.G.’s violent conduct.
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III.
Cumulative Error
Johnson contends that, even if the asserted errors individually do not
warrant reversal, the cumulative effect of them does. “A predicate to a claim
of cumulative error is a finding of error. There can be no cumulative error if
the challenged rulings were not erroneous.” (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1068.) “To the extent there are instances in which we
have found error or assumed its existence, we have concluded no prejudice
resulted. We do not find reversible error by considering the claims
cumulatively.” (Chism, supra, 58 Cal.4th at p. 1309; see Scully, supra,
11 Cal.5th at p. 613 [“the cumulative effect of the three assumed errors and
one harmless error does not warrant reversal”].) We therefore reject
Johnson’s claim that her trial was fundamentally unfair. (People v. Rivera
(2019) 7 Cal.5th 306, 348; People v. Stewart (2004) 33 Cal.4th 425, 522.)
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
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