California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from the Superior Court of San Bernardino
County, No. FVA900999 Steven A. Mapes, Judge.
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David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Dion Windfield.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Harquan Johnson.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
A jury convicted Harquan Johnson (Johnson) and KeAndre Dion Windfield (Windfield) of first degree murder (Pen. Code, § 187, subd. (a)),  during which they personally used and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and a principal personally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The jury further convicted defendants of attempted premeditated and deliberate murder (§§ 664, 187, subd. (a)), during which they personally used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and a principal used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). As to both offenses, the jury found that defendants committed them for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C)). The jury also convicted defendants of assault with a semiautomatic firearm (§ 245, subd. (b)), during which they personally used a firearm (§ 12022.5, subd. (a)) and which they committed for the benefit of a criminal street gang. Both were sentenced to prison for 90 years to life. They appeal, claiming the preliminary hearing testimony of a prosecution witness should not have been admitted into evidence at trial, the evidence was insufficient to support their convictions of attempted murder, and the jury was misinstructed. Defendants also claim that the firearm allegation findings as to the attempted murder must be stricken. We agree in part and direct some to be stricken. Both defendants assert that the abstracts of judgment should be corrected and we agree and direct the trial court to correct Windfield’s, and, upon the resentencing of Johnson, to ensure that his abstract and the minutes of the hearing correctly reflect the year the crimes were committed and the award of pretrial custody credit. Each defendant claims that the sentence imposed upon him, without consideration of his individual characteristics, is a violation of the prohibition on cruel and unusual punishment. We disagree as to Windfield and agree as to Johnson. Therefore, we affirm Windfield’s judgment except as to corrections we will direct the trial court to make. As to Johnson, we affirm his convictions and remand to the sentencing court for consideration of the factors as set forth in People v. Gutierrez (2014) 58 Cal.4th 1354 [171
Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez).
Johnson and Windfield were members of the Ramona Blocc Hustla gang. Johnson and Windfield were close friends. Johnson was easily influenced by Windfield and Johnson’s gang moniker was Little Bam, while Windfield’s was Bam.
Months before June 11, 2009, the murder victim’s close friend, MM, had taken the murder victim to a Ramona Blocc party at a place in Rialto where people buy and use drugs and hang out, when members of that gang who were cousins of MM beat up and threatened the murder victim with guns and Windfield sucker punched him.
On June 11, 2009, the murder victim was with MM and the attempted murder victim in the same vicinity, which was near an apartment where three females were spending time together. The attempted murder victim had a “friends with benefits” relationship with Windfield’s sister at the time. The murder victim was under the influence and he expressed anger at MM for not intervening on his behalf during the prior dust up between him, MM’s cousins and Windfield at the party in Rialto. He was also still angry at MM’s cousins and Windfield, and he said he wanted to “go over... and shoot up Ramona” and “kill those dudes.” MM told the murder victim that the latter was drunk, that he was not going to do the things the murder victim said he wanted to do and MM did not want to fight the murder victim over this. The murder victim, still angry at MM, took off his sweater, pulled out a gun and held it down at his side. A van pulled up and parked across the street. Inside were Windfield’s sister, the owner of the van and her minor children, Johnson, Windfield and other members of Ramona Blocc. The owner of the van lived with Windfield and his sister. Windfield, then Johnson, got out of the van and approached the murder victim and MM. The murder victim began chasing Johnson and Windfield with his gun pointed, taunting Johnson and Windfield as they ran away from him and accusing them of having jumped him. Windfield’s sister got out of the van and was yelling concerning the murder victim intending to shoot people in the presence of the children that were in the van. The murder victim put his gun in Windfield’s sister’s face. MM and the attempted murder victim told the murder victim that he was tripping and the murder victim eventually put the gun down at his side. The van took off and the murder victim, attempted murder victim and MM stood outside the apartment talking.
In the van on the way to Windfield’s home, Windfield’s sister yelled to Johnson and Windfield that the murder victim had put a gun in her face and has to die for it. Windfield said “we” had to handle the murder victim that night. He angrily said that the murder victim had him running like a little bitch and that made him feel like he was a punk. When they arrived at Windfield’s home, Johnson and Windfield armed themselves, borrowed the keys to the van from its owner and left, after Windfield said that they were returning to the scene of the chase.
Meanwhile, back at the scene of the chase, the police arrived in response to a call about a fight, and MM told the murder victim to put his gun away. The
murder victim went into the alley behind the apartment complex, while MM stood next to a woman named Nikki, who lived nearby, and the attempted murder victim went inside the apartment where the aforementioned three women were. MM told the police that there had been an argument, but everyone had left. The police then left. The murder victim, the attempted murder victim and MM came together again outside the apartment. MM eventually left after hugging the murder victim, leaving the murder victim and the attempted murder victim outside the apartment, talking. The attempted murder victim told the murder victim that they needed to leave because the police were there (he feared the police would double back and return) but the murder victim did not want to leave. The murder victim said he had to get weed “out of the back” and the attempted murder victim accompanied him towards the alley behind the apartment complex. Nikki was five to six feet away from them and she approached them and said something, but the attempted murder victim did not hear what she said. As the murder victim and the attempted murder victim walked through a corridor in the apartment complex, each was hit by bullets—the attempted murder victim with one and the murder victim with 10 to his front and back, including to his head while the gun was being held to it, several of which shots were fatal. As the attempted murder victim limped away, he saw Nikki crying and saying, “They killed him.” He went to a car Windfield’s sister had left nearby earlier for him, and drove it to Windfield’s home so the sister could drive him to the hospital. When he arrived there, he saw MM.
Between the time he left the murder victim and the attempted murder victim outside the apartment and the attempted murder victim arrived at Windfield’s home, MM had driven to a convenience store, purchased a cigar, then had driven to Windfield’s home, which Ramona Blocc members frequented, arriving there 15 to 20 minutes after leaving the apartment. MM intended to apologize to Johnson and Windfield for the murder victim’s actions in chasing them with a gun and to “resolve the matter.” When he arrived at Windfield’s, the latter said to him, “Sorry, Cuzo, he had to go” and “I mean he’s gone.” Windfield said he was sorry but he was not the shooter—Johnson was. When the attempted murder victim subsequently arrived at Windfield’s, MM saw that he had been wounded in the leg. Windfield told the attempted murder victim that “they" did not mean to shoot the attempted murder victim. On the way to the hospital, Windfield’s sister asked him if Windfield, then if Johnson, had shot him and he said he did not know. She then said something about the gun going off once and jamming. She said she could not believe that the murder victim had put a gun in her face and he has to die for doing it. When the attempted murder victim arrived at the hospital for treatment, he lied to the doctors and the police about how he had been injured.
More facts will be disclosed as they are pertinent to the issues discussed.
Issues and Discussion
1. Admission of Nikki’s Preliminary Hearing Testimony
The trial court permitted the prosecutor to introduce into evidence an audio/video tape of Nikki’s preliminary hearing testimony after concluding that she was unavailable as a witness, based on its finding that the prosecution had exercised due diligence in unsuccessfully attempting to locate her and produce her for trial. Defendants here contest the trial court’s finding of due diligence. We determine de novo whether due diligence was demonstrated. (People v. Bunyard (2009) 45 Cal.4th 836, 851 [89
Cal.Rptr.3d 264, 200 P.3d 879]; People v. Cromer (2001) 24 Cal.4th 889, 892, 893 1103
Cal.Rptr.2d 23, 15 P.3d 243] (Cromer).)
At the June 2011 due diligence hearing, the prosecution offered the testimony of an investigator from the district attorney’s office and the case agent. The investigator testified that her office moved Nikki out of state the day Nikki finished her preliminary hearing testimony in October 2009. Nikki had disclosed to the investigator her new address, suggesting that Nikki had chosen it herself, and the investigator had arranged for Nikki to be transported to that address. Three days later, the investigator called and confirmed with Nikki that she had arrived there. However, no one called periodically thereafter to make sure that Nikki was still there. In October 2010, the investigator was asked to track Nikki down. At that time, the investigator ran Nikki through all the available automated systems in California and in the state where Nikki had been relocated, including the Department of Motor Vehicles, CLETS (California Law Enforcement Telecommunication System) and Accurint. The investigator contacted an investigator for the prosecutor’s office where Nikki had relocated and the latter checked all the addresses the former had found and rechecked a couple of them two to three weeks later, in October and November 2010. Nikki had not been living at her last known address for 30 days before contact was made with the manager at the apartment complex where she had lived. The investigator for the local prosecutor’s office checked with Nikki’s relatives in the area and they had not seen or heard from Nikki for several weeks prior to the contact. The investigator for the local prosecutor’s office went to the social service agency that provided money to Nikki while she was living in the place where she had relocated and was informed that she had failed to appear for her last couple of appointments with the agency and to pick up funds it had for her. In November 2010,  the investigator called Nikki’s friend, Jasmine, who said that she had heard from Nikki three weeks before, but had no way to contact Nikki. Jasmine said that if Nikki contacted her, she would tell Nikki to
contact the investigator. The investigator called Jasmine a second time a few weeks later, but Jasmine reported that she had not heard from Nikki and had no contact information for her. Jasmine, again, told the investigator that she would have Nikki call the investigator if Nikki contacted her. The investigator also called the case agent in November 2010,  and asked him to contact her if he heard anything on the street about Nikki’s whereabouts. In January, April and May 2011, the investigator reran Nikki through the available automated systems in California and the state to which Nikki had relocated.
The case agent testified that he did not try to stay in contact with Nikki after she relocated following the October 2009 preliminary hearing. The prosecutor had asked the case agent to locate Nikki in 2010, possibly in the fall. Starting in September 2010,  and for more than three months, he spoke to 50 or 60 people in Rialto and surrounding communities who may have known Nikki. Information from these people led the case agent to believe that
Nikki might be local, so he notified the agencies in the areas surrounding Rialto and he talked to family members, all of whom denied knowing her whereabouts. Some claimed to have seen Nikki locally within “the last six months or so” before the hearing. Within six or seven months before the hearing, the case agent searched all the places in San Bernardino and Riverside Counties where people said Nikki would reside or frequent on a regular basis. Six months before the hearing, the case agent contacted one of Nikki’s aunts, who lived in San Bernardino, but got no information. On and off since January 2011, the case agent had checked the Web site, Accurint, and Nikki’s name came up at several locations linked to family members. The case agent and another detective went to those locations and staked them out several times to see if they could determine Nikki’s whereabouts. From three months before the hearing, the case agent tried just about every day to contact Nikki by telephone and by contacting law enforcement agencies. Approximately two months before the hearing, he put Nikki’s information into the C.I.I. (California information and identification) database, with a flyer, so that if she were stopped by the police, the officer who stopped her would have the information that the Rialto Police Department should be contacted. The flyer was still active at the time of the hearing. Within the last two weeks before the hearing, the case agent visited another of Nikki’s aunts and he contacted several other family members who lived locally. The aunt dialed a phone number for Nikki’s mother and sister in another state and the case agent spoke to them in the presence of the aunt, but they reported that they had not been in contact with Nikki for some time. Other information led to an apartment complex in the city in Colorado where Nikki’s mother and sister lived. Two weeks before the hearing, the case agent contacted the police in that city and they went to the complex and discovered that Nikki had moved out of the complex within the last month. The case agent tracked Nikki to a second other state, because she had been a passenger in a car that had been stopped by law enforcement. Two weeks before the hearing, the
case agent had local law enforcement go to the address of the registered owner of the car, but the owner claimed not to know Nikki. The trial court ultimately found the case agent’s testimony to be credible.
The prosecutor represented to the trial court at the hearing that when the district attorney’s office relocated Nikki in 2009, the district attorney’s office believed they were on good terms with her and she had no criminal convictions then or at the time of trial. Because Nikki was in a place where she was surrounded by family members, the prosecutor believed her office would be able to contact Nikki. The prosecutor also said that it was her understanding that while the district attorney’s office gave Nikki money so she could relocate, ...