(Super. Ct. Nos. 08F08054, 08F10037, 09F01034, 09F08416)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Tony Johnson, Sr., of assault with a firearm and possession by a felon of a firearm. (Pen. Code, §§ 245, subd. (a)(2), 12021, subd. (a)(1).) He then pleaded no contest in three other felony cases involving drunk driving and related charges. The trial court sentenced him to prison for eight years. Defendant timely appealed.
Defendant contends no substantial evidence supports the conviction for assault with a firearm and the trial court did not adequately respond to a jury question about the assault instruction. We reject these contentions. Defendant also contends, and the Attorney General agrees, that the trial court erred in imposing concurrent sentences for two on-bail enhancements, and that the abstract of judgment is incorrect in certain particulars. We will remand with directions to the trial court to resentence defendant and to prepare a new abstract of judgment.
In the case tried to the jury, case No. 08F08054, defendant was tried with his son, Tony Londell Johnson, Jr., who is not a party to this appeal. Because of the nature of defendant's contentions, we summarize the evidence as it was presented to the jury. The People's case began with reluctant witnesses, followed by testimony about what those witnesses reported before trial. The People's general theory was that defendant pointed a gun at Bryan Jones while threatening to shoot Jones.
Gail Rhinehart, who testified while in custody due to her failure to appear in court, grew up with defendant's sister, Cynthia Woodruff, and has known defendant for about 25 years. She lived with her mother, Alvina Rhinehart. Bryan Jones, whom she has known her whole life, lived next door. Gail Rhinehart claimed not to remember what happened on September 27, 2008, nor to remember speaking to a peace officer that day, nor to remember speaking to an investigator. When shown photographs depicting her injuries, she claimed not to remember receiving them. She claimed not to remember her prior conviction involving moral turpitude, but remembered being convicted of animal abuse in 2008, and later admitted she had a long criminal history that included an armed robbery and spending time in jail and in prison. She admitted she had used drugs and alcohol throughout her life and "Maybe" that had impaired her ability to function in society. She first claimed not to know what a "snitch" was, then testified it was a bad thing to tell on somebody for what they did, then testified being a snitch meant lying about someone. She did not remember telling an investigator that she was scared when defendant and two men came to her house and made her sign a statement about what had happened, nor did she remember defendant calling her on the phone and telling her to write a letter saying she had not seen a gun. She claimed she was not mad at the prosecutor for jailing her in order to secure her testimony. She denied discussing with Cynthia Woodruff that defendant had pulled a gun on Bryan Jones, and she denied that defendant threatened her not to testify.
Pauline Jones, aged 17, testified that on September 27, 2008, she lived with her father, Bryan Jones, and she called 911 twice that day. The first time, her father told her to call because someone had a gun. She had seen defendant arguing with her father just before then. She remembered seeing defendant with a gun in his pocket but did not remember him taking it out. She did not remember what defendant said.
In the transcript of her first 911 call, the accuracy of which is not challenged on appeal, Pauline Jones stated "Tony Johnson" came to the house with a gun and threatened to shoot her father, then he left. He had his hand on the gun. He said he would beat her father up "and that he would come back later so he wouldn't have to do it in front of my neighbor, and he said that he would shoot him."
After that first call, Pauline Jones watched television and then heard shouting and heard defendant telling her father "I thought we were friends or something like that." Her father told her to call 911 again, which she did, and she told the dispatcher that defendant had a gun, although she testified she did not see a gun.
Bryan Jones testified he did not remember the day in question, did not remember arguing with defendant, did not remember seeing a gun, and did not remember making statements to a peace officer or to an investigator. He testified he was scared to testify because "some people came over [to] my house and shot it up[.]"
Bryan Jones made a rude gesture to the court clerk while taking his oath. Outside the presence of the jury, the trial court remanded him to jail for contempt of court. The next day, the trial court explained to the jury what had happened, and admonished them not to ascribe Bryan Jones's conduct to the parties.
When his testimony resumed, Bryan Jones denied he had testified he was scared to testify, and said he did not know why he had gestured in court, but was directing the gesture at defendant because "I wish I wasn't here." He also testified his house had been shot up for reasons unrelated to defendant. He denied remembering details about his criminal history.
Tianha Woodruff, aged 14, testified defendant was her uncle, and on September 27, 2008, she lived with her mother, Cynthia Woodruff, and her siblings. She claimed not to remember defendant coming over that morning, or talking to the police, but later remembered defendant did come over and that there were a lot of people in her front yard. She remembered the police asking her about a gun found in her bedroom, and she said she did not know about it.
Cynthia Woodruff testified defendant was her younger brother. On the morning of September 27, 2008, her daughter Tianha called and told her to come home, and might have said that defendant and his son were there. When she arrived home, there were about 30 people there, and defendant told her he had argued with Bryan Jones earlier that morning. She remembered calling the police at defendant's request, but not what she told the police. She testified on direct examination that she did not remember signing a notarized letter about what happened, but admitted on cross-examination that she recognized the letter and had signed it under oath. In the letter, she stated she had been threatened by the Rhineharts, but she testified it was actually Bryan Jones who had called her, though she could hear the Rhineharts in the background, and testified Jones simply asked her where defendant was. She had been brought to court in handcuffs after investigators used a ruse to get her to come out of her house. Gail Rhinehart, her best friend, told her defendant did not do or start anything. After walking back from the prosecutor's office with Bryan Jones, Cynthia Woodruff heard Bryan Jones say he wanted to change his statement because "This is going too far" and "we're family, and this is all crazy[.]"
After the above confusing testimony, peace officers testified to statements the witnesses had made before trial.
Patrick Mulligan, an experienced officer with the City of Sacramento Police Department, testified that shortly after 10:00 a.m. on September 27, 2008, he and his partner, Officer Michael Peirsol, went to Bryan Jones's house and took his statement. Jones said that he had been visiting his neighbor, "old Mrs. Rhinehart," when Gail Rhinehart arrived with defendant, who parked "on old Mrs. Rhinehart's lawn and he was acting all crazy." An argument ensued, and defendant "pulled out a large chrome revolver" from the car, left the property, returned with his son, and threatened to shoot Jones. Jones did not report that defendant pointed the gun at him. Jones ran into his house, and defendant's son broke part of the screen door to get at him, stating he was going to shoot Jones. Jones told the officer he saw defendant's son punch Gail Rhinehart in the face. Officer Mulligan saw that the screen door was damaged, consistent with Jones's report. Jones said he saw a gun in defendant's waistband as defendant and his son threatened "to shoot him and shoot his house." Jones told Officer Mulligan the argument started because "Nobody tells Tony Johnson, Senior, what to do." Jones also told Officer Mulligan that he would not testify against the Johnsons.
Officer Peirsol testified that he spoke with Gail Rhinehart that morning. She told him that after Bryan Jones and defendant began to argue, defendant retrieved a pistol from under the glove box and threatened to kill Jones, with the pistol "[p]ointed at Bryan." Defendant left, but returned with his son and a third man, Michael Bailey, and they chased Jones toward his house. When she told them to stop, defendant's son "socked her in the mouth."
Gail Rhinehart's statement to Officer Peirsol was the only direct evidence that defendant pointed a gun at Jones.
Former peace officer William Montague, who had worked as an investigator for the district attorney's office, testified that he interviewed Bryan Jones on June 22, 2009. Jones told him defendant had said he "oughta just shoot [my] punk ass. . . . [He] oughta just blow [me] away." Jones said he was afraid of defendant and did not sleep at home.
On the same day he spoke with Bryan Jones, Montague spoke with Gail Rhinehart, who told him that once defendant had been released from jail, she began receiving threats, and that defendant had offered her money either not to testify or not to say there was a gun involved. On another occasion, defendant came to her house with two "guys" and "wanted her to sign a letter stating what happened." Because she was scared, she signed the letter, and they took her to a notary's office where the letter was notarized. Defendant paid the notary's fee. In another telephone call, defendant asked her not to testify, and to write another letter stating she did not see a gun "and that, if she did, that it would be all over with and they could be friends again and he wouldn't have to spend time in jail." Because she was scared, she also wrote that second letter.
Officer Jason Nollette testified that he saw defendant come out of Cynthia Woodruff's house, and searched and handcuffed him. After defendant's son was detained, Officer Nollette's partner found a Ruger .357 Magnum in Woodruff's house. Officer Jason Start testified that Cynthia Woodruff gave him permission to ...