California Court of Appeals, First District, Second Division
Superior Court of Mendocino County Nos. SCUKCRCR111825902, SCUKCRCR1118259, SCUKCRCR1015191. Hon. Ann Moorman Trial Judge.
[Copyrighted Material Omitted]
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Marvin Douglas Johnson.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant Simon Thornton.
Kamala D. Harris, Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General, Rene A. Chacon and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.
On July 20, 2011, a car sped into a campsite at Lake Mendocino at about 60 miles an hour and skidded to a stop. Four men got out of the car: defendant Marvin Douglas Johnson, defendant Simon Thornton, AJ Schnebly and William (Buck) Crocker. Within minutes, Joe Litteral, who had been staying at the campsite, was shot to death and Brandon Haggett, another visitor, was shot and seriously wounded. It was stipulated at trial that a fingerprint lifted from the shotgun later collected in evidence belonged to Crocker, and it was undisputed at trial that defendants Johnson and Thornton, who were tried jointly, were not the shooters. Johnson and Thornton were tried on three counts: murder, attempted murder, and attempted kidnapping. The murder charge was based on two theories: first degree felony murder in connection with attempted robbery or attempted kidnapping, and second degree murder based on aiding and abetting another who acted with malice aforethought. Johnson and Thornton were convicted of first degree murder and attempted murder, and were acquitted of attempted kidnapping. On appeal, defendants contend that (1) the trial court erred in instructing the jury pursuant to CALCRIM No. 335 that they were accomplices as a matter of law; and (2) the court erred in instructing the jury pursuant to CALCRIM No. 548 that the jury did not have to unanimously agree on a theory of murder. Johnson separately contends that the court erred in giving an instruction regarding voluntary intoxication pursuant to CALCRIM No. 404. Thornton separately argues that he was denied effective assistance of counsel and cumulative error compels reversal.
We hold that the trial court erred in instructing the jury that defendants were accomplices as a matter of law, but that this error was harmless. We further hold that the trial court erred in instructing the jury that it did not have to unanimously agree on a theory of murder where, as here, one theory was first degree murder and the other theory was second degree murder, and that
this error was prejudicial. We therefore conditionally reverse the first degree murder convictions and remand the case to permit the district attorney to retry the cases or to accept a reduction of the murder convictions to second degree murder. We find the remaining grounds for appeal are without merit.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2011, Johnson and his wife, Deborah Cano, were homeless and living on the “outside” in a field in a tent in Mendocino County. They had a 12-year, troubled relationship that Cano described as “ups and downs, abusive, controlling.” Johnson hit, beat and threatened her on many occasions and was also verbally and emotionally abusive. She was afraid of Johnson and many times tried to leave him. When she left he would send people to find her or he would look for her himself. She could never get very far away from him, and “[s]o I never really had any out, no way out.” They sometimes lived in Nebraska where she had family, but would regularly return to California, where they were frequently homeless.
According to Cano, Johnson was doing drugs and drinking and would be gone for several days at a time. In July 2011, Cano decided to get away from him. Initially, she went to AJ Schnebly’s house. She did not stay with Schnebly, however, because he was Johnson’s friend and that made her feel unsafe. She “took off walking” until she ran into Joe Litteral, who was also homeless. She and Johnson had hung out with Litteral in the past; he was an “acquaintance that became a friend.” According to Cano, Litteral and Johnson had a good relationship.
Litteral offered to take Cano to the Pine Cone Motel where he had a room. A lot of people were in and out of the motel, and three or four people spent the night in Litteral’s room. Cano did not leave the room because she did not feel safe. After she arrived, Johnson sent Schnebly and two other people to check on her.
The next day Cano, still at the Pine Cone Motel, overheard Johnson and a friend of Litteral’s named Brandon Haggett on the phone. Johnson was yelling at Haggett and she overheard Johnson saying, “I am going to kill you. I am going to come there and I am going to kill you.” He said this two or three times.
Cano and the other people who were staying with her and Litteral at the Pine Cone Motel decided to go to the Bu-Shay campground at Lake
Mendocino. Cano estimated that there were at least nine people at the campground, including two children. Brandon Haggett and Joe Litteral were among this group.
The day after they arrived, Johnson came up over the ridge “yelling and screaming.” He sent two or three people into the campground ahead of him. Cano did not know them by name, but was familiar with them. Cano did not speak with Johnson directly. Instead, she went inside her tent. Johnson stayed at the campsite into the evening hours eating, talking, smoking marijuana and drinking with, among others, Litteral and Haggett.
Toward the end of the evening, Johnson approached her. He said things like “I am going to get you. I am going to get you back. I know I am going to get you, and you better watch what you are doing. You better not have them do anything, and if I see you doing anything, I’m going to hurt somebody.” Cano testified that Johnson said “if he seen me with Joe Litteral” in a romantic way “he was going to hurt us.” After Johnson left, Litteral told her that she should stay in the tent with him because “we’re not going to let nobody scare us.”
Johnson went to the campsite next to theirs, where six or seven other people were staying. He stayed the night. The next morning he was back at Cano’s campsite “talking with all the guys.”
On July 20, as it was becoming evening, a car pulled up “really quick” to the tent where Cano was staying. The doors flew open. The first person Cano recognized was AJ Schnebly, who had a pistol grip shotgun in his hands. Cano did not see anything in Johnson’s hands. Schnebly racked the shotgun. Moments later, Cano saw Brandon Haggett “fighting with a guy with a handgun.” This man (later identified as Crocker) was wearing a bandana over his nose and mouth. Cano heard a gunshot and saw Haggett drop to his knees.
Litteral, who was about 55 feet away, ran toward Haggett. Cano saw the man with the gun “shoot him, point blank.” She heard a second shot, and testified “I seen Joe [Litteral] go down.... I screamed, and I started running over there....” At that point, Johnson ran toward her and grabbed at her. As he did so he yelled, “Get in the fucking car, bitch.” She ran the other way towards Haggett and Litteral.
Brandon Haggett, one of the shooting victims, testified about the days that led up to the incident and the shooting itself. In July 2011, Haggett was staying at the Pine Cone Motel with his friend Joe Litteral. Cano came to stay at the motel. Over the course of Cano’s first day at the motel, Haggett
answered five or six calls from a man who identified himself as Cano’s husband. This man, who Haggett later learned was Johnson, told Haggett, “I want her back, ” “[b]etter bring my wife back. I am going to kill you. I am going to find you.” Johnson was “very angry, very upset.” Haggett was under the impression that “he felt like we were keeping her against her will. So he was very upset with us.” All of the conversations he had with Johnson contained threats of some kind, including threats to kill.
At several points, Cano spoke with Johnson on the phone. Haggett heard her yelling at Johnson, and at one point she agreed to meet Johnson to see if they could work things out.
Haggett did not take Johnson’s threats seriously because “people threaten people all the time when they are hurt. They never act on it.” But because the calls were creating “a lot of strain” among the people at the motel, they decided to leave and go to a campground at Lake Mendocino.
A day after they arrived at the campground, Johnson showed up with three other people. He was yelling at his wife, and she was yelling back at him. Haggett told him “if you are looking for a fight, I am going to stop you right here because you are not bringing this into the campground.” Johnson and his friends accepted Haggett’s invitation to stay to eat, drink beer and smoke marijuana.
The next day, July 20, 2011, at around dinner time, a car came speeding into the campground about 60 miles an hour. The car skidded about five feet before it stopped. Four doors swung open, and four men came out. One had a shotgun and one had a.45. Johnson came out of the right hand passenger side rear door. Haggett did not see who came out of the driver’s side.
The man with the shotgun (Schnebly) stood by the car. The man with the.45 (later identified as Crocker) was moving toward the campground. He was running fast, and wore a wig and a red bandana that covered his face. There were about 15 or 20 people at the campground. Crocker pointed the gun in the air and then moved it around in a circle toward the people at the campground and yelled “[e]verybody down on the ground.” At the same time, Johnson was yelling at Cano, “ ‘See what we can do? Get in the car.’ ”
Haggett told one of the women at the campsite to “ ‘[g]et the kids out of here.’ ” Haggett then “made a split decision to protect the girls and [Litteral’s] life.” He ran up to Crocker, grabbed Crocker’s gun, put it to his own chest and told Crocker “to pull the trigger a couple of times.” When Crocker did not pull
the trigger, Haggett started fighting with him over the gun. In the struggle over the gun, Crocker dropped to the ground on his back. Haggett was on top of him, and it felt like Crocker was losing his grip on the handgun.
At that point, Haggett felt three “severe blows” to the back of his head. It sounded like metal hitting a rock. Haggett turned around to face the person who was hitting him. He identified that person at trial as Thornton. As Haggett pulled back his fist to hit Thornton, Haggett was shot point blank in the chest by Crocker.
Haggett tried to get up and saw Litteral start fighting with Thornton. Crocker ran toward the car and then “turn[ed] back around and start[ed] firing in Joe [Litteral]’s direction.” Haggett heard three shots.
Litteral dropped to his knees, and Haggett heard him yelling, “ ‘Oh shit. I am dead.’ ” All the men ran toward the car. Johnson was by the car and yelled to Cano to get into the car again. During the entire incident, Johnson stayed by the car. When the men got in the car, Cano was over where Litteral had fallen and Johnson “made no attempt to make sure he got Deborah to leave....”
Litteral bled to death from a gunshot wound that perforated his right lung. His right arm was fractured by a blow with such significant force that there was a tremendous amount of hemorrhage around the broken bone. The forensic pathologist believed the bone was fractured by something round and wooden that could create this amount of force and type of injury, such as a baseball bat or a bowling pin. Haggett was shot in the left arm and is now unable to extend his fingers or move his wrist on that arm.
Schnebly’s nephew, Kenny Kumpula, testified that after the shooting, Thornton told him that he had gone to Lake Mendocino with Schnebly and Crocker “[o]ver some money and a woman[, ]” and “to beat some people up[.]” Thornton also told Kumpula that “people at the lake owed him money[.]”
Defendant Johnson’s Statements to Police
Defendant Johnson gave several interviews to the police, substantial portions of which were played for the jury. Johnson admitted he drove Schnebly, Crocker and another person to and from the campsite where the shootings took place. He told the police that he had told “AJ and those guys” that there
was “weed and cash” at the campground, and that while at “the creek” in Willits the morning of the shootings he knew that they were “going out there to rob these mother fuckers[.]” Put another way, Johnson told the police that he knew they were going out to the campsite to “handle some shit[.]” “I thought they were going out there to argue and fight maybe and try to get their money or whatever but not like that.” At another point he explained that everybody was “out there for the money and the weed that’s out there.” He also admitted that he saw Schnebly’s and Crocker’s guns before they arrived at the campsite. Johnson told the police that when he was driving the men to the campsite immediately before the shootings, he “knew they were driving out there to go rob some people.” Johnson related that the others told him “you’re just going for the lady. We’re getting all the money.”
After he was arrested, Johnson took the police to the place in Potter Valley where the guns had been dumped after the shootings. He told them a bat was there too, but no bat was recovered.
Defendant Thornton’s Phone Calls from Jail
Thornton made three recorded phone calls from jail. He was aware he was being recorded, and spoke cryptically. In one call, Thornton spoke to “Justin, ” and told him that “there’s some things out I need to get, make sure that are disposed of.” He told him where to find the items in “P.V.” and explained that they were in a “lot of bush.” Thornton said, “When you find the stuff-... [¶] -when you find what I need disappearing, you’ll know what to do.” (When Thornton testified at trial, he admitted he was talking about the guns used at the incident.) In another recorded phone call, Thornton told his fiancé Tanya Thurman to tell Schnebly that “we got rid of” the thing that Thornton “wanted to get from [Schnebly], ” and told her to “[t]ell [Schnebly] all of that, nothing to worry about unless somebody that was with us says something.” Apparently referring to Kenny Kumpula (Schnebly’s nephew and Thurman’s friend, and the person whose car was borrowed so the entourage could drive to the lake on the day of the shootings), Thurman told Thornton that Kumpula “wants to know why he got lied to by his uncle and you and that he doesn’t care and that anyone who lies to him is dead to him.” Thornton replied, “We did it to protect him because if he knew what was really going on, it could be bad for him. And it wasn’t planned to go the way it went.” Kumpula was apparently in the room when Thornton made this comment, because Thurman then replied, “He just walked out of the room because he was like shaking.” To which Thornton responded, “Shut your fucking trap and listen. It’s because we were protecting him and the other thing is nothing went according to plan.... [¶] You need to go find him and tell him he, he needs to fucking make sure to keep it under wraps.” When Thurman replied that she did not know if he would, because he was so angry, Thornton
replied, “It’s my future.” In the third phone call, again to his fiancé, Thornton asked her to tell Kumpula that a “good soldier” “follows orders.” Thornton told Thurman to tell Kumpula that he “was looking at the bigger picture. I was looking at making our life more comfortable. All of ours.” It’s apparent from the recording that as Thornton spoke Thurman was relaying his words to Kumpula.
Defendant Thornton’s Defense
Thornton testified in his own defense that on July 20, the day of the incident, he was at a “free meal place” in Willits when Schnebly, who was his friend’s uncle, showed up, followed by Johnson and Crocker. Thornton testified that “[w]hile we were eating, some things were discussed, just random shoot the breeze kind of thing. Introductions to each other, introduction to people that were with us. [¶] I know that [Schnebly, Crocker] and I’m not sure but possibly Johnson... stepped aside at one point and had a conversation on the side. I’m not 100 percent sure though if [Johnson] did. And they came back.”
At that point, “somebody” said he needed “to make a trip” and Thornton was asked to go along with them. Thornton wanted to join them: “[W]hy not. It’s just a joyride as far as I’m concerned.” He also wanted Schnebly to like him.
Schnebly called Kenny Kumpula to use his car, and soon the four men got into the car and left town. Johnson drove. On the way, Crocker “wanted to stop by the place where he was staying to grab a backpack. So we did that.... [H]e came out with a green... Jansport backpack, it might have been a duffel bag.” Crocker put the backpack into the trunk of the car. Thornton was under the impression from what the other people in the car were saying that they were going to Ukiah.
However, “at some point a detour was made. I don’t know who decided it. It was decided that we would detour and go out to Lake Mendocino. So as we’re going out there at one point we pull over, the backpack was taken out of the trunk and put on the floorboard in front of [Schnebly] and we continued on our way.” They stopped at the check-in booth at the campground and told the ranger that “we were just going to drop off something real quick.”
They drove into the campground and “[a]t that point all I remember... was [Schnebly] leaned forward to his feet area where the backpack was. And he starts unzipping. I see [Crocker] put on like a mask over his face. I see [Schnebly] start assembling what looked like a shotgun. I didn’t know for
sure if it was a shotgun or a rifle at first because I wasn’t paying attention, I was kind of-I honestly was freaking out. I was scared because all of a sudden there’s a gun coming out of nowhere. Then I also saw that [Crocker] had at one point he had like a black bag... and I saw him at some point unzip that and there was a gun in there, there was some clips and ammunition.”
Thornton had just met Crocker that day, and had met Johnson once or twice before, casually at the homeless shelter. He had only known Schnebly for about a week and a half.
A lot of thoughts ran through Thornton’s head, including the possibility that the men were going to hurt him or Johnson. He did know “at one point when we were heading toward Ukiah that we were detouring for that purpose [picking up Johnson’s wife] but I didn’t know what the point of the guns were.... Why do you need guns to go pick somebody up?’ He did not “know if she wanted to go willingly or I was not informed of that. I assumed that it was willingly.”
They “proceeded to go up into the campground. At one point they stopped. [Schnebly] opens the door to [the] passenger front seat and gets out with the shotgun across his body.... As he’s doing that, [Crocker] got out behind him....” Defendant Johnson “[j]ust sat in the driver seat driving, scared pretty much as much as I was from the look of him.” Thornton testified that at some point, Johnson may have “stood up outside the car, ” but he went no further than that.
“And so then all of a sudden I hear arguing, and I’m still in the car, and I look over from the car and I see [Crocker] arguing with... Brandon Haggett. And I hear arguing and ‘shoot me, shoot me, ’ being yelled at him by Haggett towards [Crocker] and then somebody else came up, who I didn’t know it was at the time, with what it almost looked like a baseball bat but I guess was a tree branch.... [A]nd he proceeded to try to whack [Crocker] with it.” He thought Crocker was hit two or three times with the tree branch. He then heard gunshots and saw Haggett fall to the ground and then Litteral fall.
Thornton testified that all this time he was in the car, “freaking out.” He “didn’t expect guns to be showing up, you know, I didn’t know what the hell we were doing. I was just going along for a ride. If I would have known then I would have never got in that car because people dying is not a cool thing.”
Crocker and Schnebly got into the car, and they all left. There was an argument in the car about where to go next. Johnson wanted to get out of the car and leave, as did Thornton. Thornton did not say anything. They went to
Potter Valley to drop off the guns, and then on to Ukiah. According to Thornton, Johnson said, “I had nothing to do with this. I didn’t have no reason to be involved in this. I didn’t touch no gun, my hands are clean....” Johnson got out of the car. Schnebly and Crocker had an argument about who would drive the car, and Thornton volunteered to take it back to Willits. On the way, Schnebly and Crocker threatened Thornton that if he said anything they would hurt him and his fiancé, who was pregnant at the time.
Thornton admitted that he made a telephone call to “Justin”-his mother’s boyfriend-from jail, and that his cryptic instruction to Justin was to retrieve the guns from Potter Valley (referred to in the phone call as P.V.). Thornton tried to minimize the phrase “make them disappear” as meaning only that he was afraid that Crocker and Schnebly would go back for the weapons, and what he actually wanted was for Justin to take the guns to the police. He admitted he told his fiancé in a phone call that he did it “to make our lives more comfortable, ” but testified that he was not referring to money.
Thornton admitted that when he voluntarily spoke to the police in September while being held in jail pending trial, he told them that possibly Johnson had a bat, since Schnebly and Crocker had the only other weapons identified at the scene. At trial, he denied saying that he believed Johnson swung the bat, and tried to explain the inconsistency by stating that when he was told by police that there was a bat, he deduced it must have been Johnson’s. He never saw Johnson use a bat at the scene. If he had told the police that Johnson had swung the bat and that he was afraid to talk about it because he was afraid of ...