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Lee v. Frauenheim

United States District Court, E.D. California

May 9, 2017

DAVID LEE, JR., Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Petitioner, along with co-defendants Corey Johnson and Joseph Dixon, were convicted for multiple murders and attempted murders committed in 2007 while participating in a criminal street gang in Bakersfield, California. Petitioner brings this habeas petition raising numerous claimed violations of his constitutional rights. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Kern County Superior Court on March 20, 2009, of:

Count 1: March 21, 2007, attempted murder of Edwin McGowan, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).
Count 2: April 19, 2007, premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).
Count three: April 19, 2007, premeditated murder of Vanessa Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).
Count four: April 19, 2007, premeditated murder of Baby Boy Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).
Count five: April 19, 2007, attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).
Count Seven: August 11, 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).
Count eight: August 11, 2007, discharge of a firearm at an occupied vehicle, involving the personal discharge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 246, 12022.53(d), (e)(1)).
Count nine: March 2, 2007 - August 22, 2007, conspiracy to violate any or all of sections 186.22(a), 187, 211, and 245(a)(2), committed for the benefit of a criminal street gang (Cal. Penal Code §§ 182(a)(1), 186.22(b)(1)(C).
Count Eleven: March 2, 2007 - August 22, 2007, active participation in a criminal street gang (Cal. Penal Code § 186.22(a)).

See Pet. at 1; People v. Johnson, No. F057736, 2013 WL 5366390, at *1-2 (Cal.Ct.App. 2013). In addition, special circumstance and enhancement allegations were found to be true. Id. On May 1, 2009, Petitioner was sentenced to 3 consecutive life terms without possibility of parole, plus 196 years. Pet. at 1.

         Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. On April 26, 2012, the appellate court reversed the conviction for conspiracy and noted several sentencing errors, but otherwise affirmed the conviction. Pet. at 2. Both Petitioner and Respondent sought review by the California Supreme Court. Petitioner's petition for review was summarily denied, however, the California Supreme Court granted Respondent's petition for review. Id. On July 18, 2013, the California reversed the Court of Appeal's decision regarding elements of the criminal gang participation enhancements. People v. Johnson, 57 Cal.4th 250 (2013). On September 25, 2013, the Court of Appeal issued a revised and amended opinion in light of the reversal from the California Supreme Court. Johnson, 2013 WL 5366390.

         Petitioner also filed several petitions for writ of habeas corpus in the state courts. On August 5, 2014, he filed a habeas petition in the Kern County Superior Court. See Resp't's Answer, Ex. C. The Kern County Superior Court denied the petition in a reasoned decision. Id. He filed a second habeas petition in the Kern County Superior Court on December 12, 2014. See Resp't's Answer, Ex. D. The petition was rejected on March 16, 2015, for raising issues previously denied. Id. Petitioner then filed a habeas petition in the Fifth DC A on March 12, 2015, and the petition was summarily denied on July 10, 2015. See Resp't's Answer, Ex. E. Finally, he filed a habeas petition in the California Supreme Court which was summarily denied on November 10, 2015. See Resp't's Answer, Ex. F.

         On November 24, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on May 16, 2016. (Doc. No. 27.) Petitioner filed a traverse to Respondent's answer on July 28, 2016. (Doc. No. 45.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

         I. Prosecution Evidence

Events Surrounding March 21, 2007
Early on the morning of March 20, 2007, someone shot Venesta Grinnage's vehicle, which was parked in front of her home in the 4300 block of Deborah Street in Bakersfield. [FN4] Grinnage's son, Daniel Davis, frequented the house, although he did not live there. Multiple shell casings from three different semiautomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15 minutes later. The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots.
[FN4]: All dates are in the year 2007 unless otherwise stated.
Some of the law enforcement officers who testified had received promotions or retired by the time of trial. To the extent possible, we refer to them by the titles they had at the time of events.
A number of peripheral actors in the case were regularly referred to at trial by their nicknames or monikers. For the most part, we use the same appellations for the sake of clarity.
Last, exact addresses were given at trial.
Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both members of the police department's Special Enforcement Unit (also known as SEU or the gang unit) were dispatched to an address on Myrtle Street in response to a call in which the reporting party said he had been shot at and his vehicle had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been standing by his vehicle in front of a residence in the 800 block of Deanna Way, talking with some friends, when an older silver or green Jeep drove by and shots were fired at him and his friends. Lee said the incident occurred about half an hour before he called the police, and that he had left the area and gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had been present, and he seemed very hesitant when Shaff asked for specifics about the other vehicle and its occupants.
There were what appeared to be bullet holes in Lee's vehicle, a 2000 Chevrolet Tahoe that belonged to his father. Shell casings and bullet fragments from at least one gun were found in the 800 block of Deanna Way, where Lee said the shooting had occurred.
As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU officers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powder blue, were active rivals of the Bloods at the time. The Bloods had somewhat of an alliance with the Westside Crips, and were not actively quarrelling with the Eastside Crips. The corner was a known narcotics location, with sales being made out of the apartment complex there. The territory of a local Hispanic gang, which also sold narcotics, began nearby.
Around 6:45 that evening, Edwin McGowan was talking to friends outside the apartments when he heard some shots. He tried to run, but fell, having been struck. He saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two more times, then took off running. McGowan could see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ever having seen defendants.
Officer Meek interviewed McGowan in the emergency room. McGowan described the shooter as a tall, light-skinned African-American male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek confirmed that McGowan was certain the race was African-American and not Hispanic. When asked, McGowan said he would be able to identify the person if he saw him. [FN5]
[FN5] McGowan denied telling Meek that a light-skinned African-American male shot him. Rather, he told Meek the shooter could have been Hispanic or "a bright-skinned" male. McGowan told the grand jury that the shooter was a very light-skinned person, but he could not tell his race. McGowan did not consider any of the defendants to be light-skinned. They all appeared to be African-American to him.
On October 4, Bakersfield Police Detective Darbee showed McGowan a photographic lineup that included a picture of Johnson, whom Darbee considered to be light to medium-skinned. McGowan said he did not recognize anyone, and did not know who shot him because the person had a hoodie over his face. When confronted with the fact that he had told Meek he would be able to identify the shooter, McGowan was hesitant to answer and asked if Darbee knew what would happen to his family if he were to identify anyone or testify against anyone in court.
At the scene, adult-sized footprints, with a stride length suggesting the person had been running, led from the area in which McGowan had lain in front of one of the apartments, toward where a hole had been cut in the chain-link fence at the far corner of the parking lot. [FN6] Three spent .25-caliber shell casings were found near the door of the apartment where McGowan had lain, and another was recovered from the parking lot. All four had been fired from the same gun.
[FN6] A canal ran parallel to Monterey Street about a block away. A traversable alleyway ran along both sides of the canal.
All told, McGowan was struck three times in the back. He suffered major abdominal injuries that necessitated multiple surgeries. Taken together, his injuries were life-threatening.
Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael Wilcox was inside his home in the 4200 block of Deborah Street, when he heard six to 10 gunshots. Looking out, he saw a person, who appeared to be in the area of the Grinnage house, shooting at a van that was driving away. The van was white with blue trim, and Wilcox had seen it before in the neighborhood. The driver was an African-American male; Wilcox could not tell if anyone else was in the vehicle.
Around 10:45 p.m., Jorge Garcia, who lived in the vicinity, was cleaning his garage when he heard around three gunshots. Before that, there had been some males behind his house, drinking and playing loud music. When he heard the shots, he went to the back to see if they were having a fight, but nobody was around. Garcia returned to cleaning the garage with the door open, then Lee walked in, said he had been shot, and asked Garcia to give him a ride around the corner. Lee had been shot in the left arm and the right hand and fingers. Garcia took him to the location in the 800 block of Deanna Way at which Lee's vehicle had previously been shot. The people there called the police and an ambulance.
Bakersfield Police Officer Hernandez responded to the scene. At the same time, the Kern County Sheriff's Deputies Chandler and Moreno were responding to a report of "an illegal shooting" in the 4300 block of Kenny Street, one street east of Deborah Street. [FN7] Chandler attempted to talk to Lee, but Lee did not respond to any of Chandler's questions. Lee was not in possession of a handgun.
[FN7] The 4300 blocks of Deborah, Kenny, and Eve Streets are in a county pocket; hence, the different law enforcement jurisdictions.
Investigation revealed broken automobile glass and what appeared to be part of an automobile window frame near the Grinnage house. On the east side of Deborah Street were a number of spent shell casings. Some were grouped in one place, while two were apart from the others. Eight had been fired from the same gun, while one was from a different firearm - the same firearm as some of the shell casings recovered from the March 20 shooting of Grinnage's vehicle.
Chandler and Moreno contacted Lee in the hospital emergency room. Told shell casings had been found in the 4300 block of Deborah Street, Lee said he had been walking southbound in the 4300 block of Deborah Street, when he saw subjects in a green 1995 or 1996 Jeep pull up alongside him. He saw a flash and heard five to six shots. He described the route he ran before reaching Garcia's garage. A blood trail was found in that area, but no weapon.
Events Surrounding April 19, 2007
As of April 19, James Wallace resided with his mother, Kathie Oats, not far from McNew Court in Bakersfield. Dixon's mother and Wallace's father, who lived on Watts Drive in a part of town called the Country, were cousins, although Oats believed Dixon and Wallace had only been introduced once. Wallace had never been arrested and was not in a gang.
On April 19, Wilma Shaw, the aunt of Wallace's best friend, held a barbecue in the front yard of her residence in the 1300 block of McNew Court. Her guests, who included Wallace and her nephews, Anthony and Othelon Lyons, were outside off and on most of the day, talking and playing music in the front yard. [FN8] When it began to get dark, Shaw went inside to attend to her grandchildren. Not long after, she heard multiple gunshots.
[FN8] For the sake of clarity, we refer to Anthony and Othelon Lyons, and Mikeshiea and Myeshia Herring, by their first names. No disrespect is intended.
Anthony had been at his aunt's house all day, as he usually was during this time period. Just before 8:00 p.m., he was in the front yard, hooking up music with his cousin, Curtis Miller, in Miller's Tahoe. The vehicle was parked in the driveway of Shaw's apartment complex. Helping him were his younger brother, Othelon, and Wallace. At some point, another cousin, Albert Darrett, arrived with his girlfriend in a black Tahoe and parked on the wrong side of the street.
Anthony went up to the driver's side of the vehicle to talk to Darrett, and leaned in as they conversed. Anthony was moving away from the vehicle when he saw a tall person, weighing about 200 pounds, in the middle of the street. The person, who was dressed all in black, started shooting toward the house. Anthony only saw one person, and could not tell if it was a man or a woman or the person's race, because the person had on a hoodie with the hood up. [FN9]
[FN9] Anthony had no vision in his right eye, having been shot in 2004. He was also grazed in the head in 2005. His older half-brother, Deshawn Peterson, was shot and killed on Feliz Drive about four years earlier. Anthony had met Johnson, who was Peterson's cousin, one time about six years earlier. Anthony was a child when he last saw Johnson, and would not recognize him if he saw him again. He did not see Johnson on the night of April 19, although he had heard that Johnson used to cut people's hair in the area.
At some point, Anthony was shown photographic lineups containing Johnson's and Lee's pictures. Anthony did not identify either defendant as one of the shooters. He said it was dark and he did not get a good look at the people who shot him.
Anthony ran toward the back door of Shaw's residence. He believed Wallace was by Miller's truck, and Miller was inside the truck. Wallace was running ahead of Anthony toward the house, then Anthony saw Wallace fall down. Anthony ran through the back entrance and out the front. Wallace was on the front porch, lying on his stomach on the step in a pool of blood.
Anthony believed he heard about five shots. He was struck above the right hip. The bullet remained in his body at the time of trial, as he refused to have it removed for fear of possible complications. [FN10]
[FN10] Sheriff's Sergeant Marshall interviewed Anthony at the hospital on the evening of the shooting. Anthony related that he saw a Black male, about five feet eight or nine inches tall, wearing a black hoodie, walking from west to east across the street near a white van. The shooter was by the white van, and when the shooting started, Anthony ran. He was in the parking lot of the apartment complex when he felt himself get hit with a bullet. When Marshall explained that he really needed the bullet as physical evidence, Anthony agreed to have an elective procedure so it could be retrieved. He did not express any hesitation about having the surgery.
As of April 19, Albert Darrett resided in Bakersfield with his girlfriend, Vanessa Alcala, and her mother and child. Alcala was pregnant with Darrett's son.
Darrett worked in oilfield construction. [FN11] On April 19, he needed to cash his paycheck, so he picked up Alcala and they drove in his black Chevrolet Tahoe to the store on the corner of Feliz Drive and Cottonwood Road. After he cashed his check, they went south on Cottonwood Road to the first street, McNew Court, and went to Shaw's house. Shaw was Darrett's aunt, and it was his habit to stop by her house for a few minutes every day after work. On April 19, family and friends were in her driveway. Curtis Miller was one of the cousins who was there. Like Darrett, Miller drove a black Chevrolet Tahoe, which was parked at Shaw's residence.
[FN11] Darrett admitted being booked into the Kern County jail four days before the shooting, and stating at that time that he associated with the Crips. He denied saying, however, that he wanted to be kept away from Country Boy Crips. He initially denied, but then admitted, once having a tattoo on his arm that read "805 ESC, " meaning the area code for Bakersfield and Eastside Crip. He was about 15 years old when he got the tattoo. He was older by the time of trial and not in a gang, although he knew people who were in the Eastside Crips.
Darrett pulled over on the wrong side of the street (facing west) next to the driveway, left his vehicle running, and started talking to his cousin, Anthony, who was at the driver's side door. Alcala remained in the passenger seat. Darrett and Anthony conversed for a couple of minutes. It was light out, but getting dark. Darrett saw two people walking up the opposite side of the street, headed in the direction of Cottonwood Road. They were about halfway down the block when he first saw them, and he did not pay much attention to them. He did not see either of them get out of an automobile or come out of a house, and he saw nothing in either one's hands.
Darrett continued to talk to Anthony, then glanced at the two and saw them crossing the street in a diagonal direction toward him. They crossed the street together, then came up to the car and spread out so they were a couple of feet apart. One was toward the passenger's side of the vehicle, while the other was right in front of it. Both were no more than five feet from the vehicle, and both then started shooting. One shot toward the apartment complex, while the other shot toward the vehicle. Darrett tried to duck. He did not hear anything from Alcala or see what she or anyone else did.
After the shooting stopped, Darrett saw the two men running back in the direction from which they had come. Although he did not see their faces, he believed they were African-American. They appeared to be around 5 feet 10 or 11 inches tall, and were thin. Although Darrett could not tell their approximate ages, he believed they were younger than him. [FN12] Both were dressed all in black. At least one, and possibly both, wore a black hooded sweatshirt with the hood pulled over his head. Darrett tried to run them over, but was unsuccessful because they ran back the other direction, toward Cottonwood Road. They separated, with one running north toward Feliz Drive, and one running south toward Cannon, via the dirt alleyway next to Shaw's apartment. Darrett did not see either of them taking off their clothes or trying to jump a fence to get away.
[FN12] Darrett was 31 years old as of December 19, 2008. Dixon was between five feet six and five feet seven inches tall.
Halfway up the block, Darrett turned to look at Alcala. She was bleeding and unresponsive, and he realized she had been shot. He drove her to Kern Medical Center. He did not see either of the shooters exit onto Feliz Drive or any cars leaving or trying to flee, but he was not really paying attention.
At 7:58 p.m., the Kern County Sheriff's Department received a 911 call from the McNew Court address, reporting a shooting. Senior Deputy Lostaunau arrived four minutes later, and the helicopter and other deputies shortly after that. Lostaunau, who was in the gang unit at the time, had driven down several of the streets in the area before the shooting was reported, looking for people to contact or anything that appeared to be out of the ordinary. He did not come across any parked car containing three African-American males or make contact with a group of three African-American males on foot. He did not see anybody jumping fences or running, or any vehicle fleeing at a high rate of speed.
Lostaunau parked a few feet west of the driveway into the apartments and found empty cartridge casings on the ground at his feet when he got out of his car. [FN13] He also smelled gunpowder and saw a person down on the ground in front of the apartment. He could hear screaming coming from the apartment.
[FN13] Five spent .38-caliber Super Plus P shell casings were found. That kind of ammunition normally is used in semiautomatic firearms. No fingerprints were found on the casings. The core of a round of jacketed ammunition was found in the front passenger side door of Darrett's vehicle. The spent shell casings found on McNew Court were fired from the same firearm. A partial fingerprint, which could not be identified when compared to the prints of defendants, Darrett, and Alcala, was found on the rear passenger window exterior.
Detective Armendariz investigated a number of vehicles at or near the scene of the shooting. None were registered to or associated with any defendant. The white van parked across the street and to the west of Shaw's residence belonged to the Fuentes family.
Lostaunau approached the apartment and asked what happened and who did it. Someone inside yelled that it was a Black male, and Lostaunau broadcast that over his radio. He then started attending to Wallace. When he put his hand on Wallace's back, he felt it rise at least once with a breath. Within seconds, however, Lostaunau could feel no more breathing and was unable to find a pulse. Deputy Adams, a former paramedic, determined Wallace was deceased.
Around 8:00 p.m., Leon Reyes was asleep in the back room of his house on the south side of McNew Court, in the same block as Shaw's residence, when he heard a racket at the fence separating his front yard from his back yard on the west side of the house. He stepped out onto his back porch and saw someone jump the fence separating his back yard from his neighbor to the south. He could not see who it was, but the person could have been wearing dark clothing.
Reyes immediately went to the front yard to check on his car. As he did, he saw Deputy Ollague going down McNew Court. Reyes informed Ollague that a subject wearing white tennis shoes and dark clothing had just gone over his fence. Ollague and a K-9 deputy searched the front and back yards, but found nothing.
One of the units responding to the scene was the helicopter, Air One. It did not report anyone who appeared to be fleeing the scene, although it did report a subject walking on Feliz Drive near Cottonwood Road, a location one block north of the shooting and east of where the dirt alley from McNew Court came out onto Feliz Drive. The subject appeared to be wearing dark clothing and white shoes. Contact was made with this person, a teenager, who was searched, questioned, and released.
Just before 8:00 p.m. on April 19, Rebecca Martinez, who lived in the 1200 block of McNew Court, heard five to six gunshots, a scream that sounded female, and tires "peeling out." Martinez called 911. When Sheriff's Sergeant Rennie contacted her, she pointed him to the house directly across the street, where a large dog was barking near the east fence line. Martinez suggested Rennie check that yard, because the residents were not home and the dog rarely barked.
Rennie checked the house and saw that it appeared to be secure. When he looked under one of the vehicles parked in the driveway of the house immediately to the east, which was across the street and four houses down from the location of the shooting, however, he saw a small pile of dark clothing that consisted of a dark-colored baseball cap bearing the Boston Red Sox logo (a red B), a Nike brand U.S.A. Basketball Michael Jordan jersey, a dark blue or black Navy-style Volcom-brand pea coat, and a beige or tan American Dawn-brand smock-type shirt. A Samsung cellular telephone was found in one of the coat pockets. The clothes did not belong to anyone in that household, and had not been there earlier that evening. [FN14]
[FN14] From March 16 through April 12, Johnson attended Bakersfield Barber College. Students were required to wear a tan, short-sleeved smock. The school generally issued students a Brick McMann-brand smock with an American Dawn logo.
Following their arrests, DNA samples were obtained from defendants and compared to DNA extracted from various places on the items of clothing. All three defendants were among the five or more contributors to the DNA found on the coat. Because of the number of contributors, the astronomically rare frequencies (probability of finding that genetic profile in the general population) typically found with a single-source genetic profile were not obtained. Thus, for example, although Johnson was included as a contributor to the mixture found on the coat collar, approximately one in 25 people could also have had the same profile and been contributors. The frequencies were similarly common with respect to Lee and Dixon. Where such common frequencies were obtained, Gary Harmor, the senior forensic serologist at the Serological Research Institute who conducted the DNA analysis in this case, could not say with certainty that a particular defendant touched the particular item.
DNA extracted from various places on the smock was also a mixture of contributors, with all three defendants included. Frequencies again were common, except with respect to the three-contributor mixture found on the inside front collar. Johnson's genetic types showed up strongly enough that it could be determined only approximately one out of every 1.1 million people would have genetic types consistent with what was found in the evidence compared to Johnson.
DNA extracted from the jersey was also a mixture of contributors. Lee was excluded as a possible contributor. Dixon could not be excluded. Johnson was included as a possible contributor; with respect to the mixture found on the inside front collar, only one in 8.8 million people could have the same types. A frequency calculation of that magnitude was quite significant where a mixture was concerned.
DNA extracted from the sweatband of the cap was a mixture of at least four contributors. Johnson could not be excluded as a contributor, but the statistical analysis showed that approximately one in 1144 persons would have a type similar to that contributor. Lee and Dixon were excluded as contributors to the DNA on the baseball cap.
Senior Deputy Little contacted Othelon at the scene. After learning that Othelon had witnessed some of what happened, Little took Othelon to his patrol car, activated his tape recorder, and took his statement. Othelon was cooperative.
Othelon told Little that he was sitting in the backseat of his cousin's truck, eating and hooking up music, when his cousin Darrett and Alcala pulled up. They were facing west, and Anthony, Miller, and Wallace were standing by the driver's side, talking to Darrett. Othelon heard shots. He opened the door and looked back, and saw one of the assailants jump the fence into a field. This person was wearing a black hoodie with the hood up, and a white Pro Club shirt over the black hoodie. He was African-American, 18 to 20 years old, around six feet tall and 180 to 185 pounds, and with a dark complexion. Othelon did not see this one with a gun. The other one ran down the alley. He was dressed all in black. He had a handgun pointed toward Shaw's house and was running southbound. He was African-American, 18 to 19 years old, about 5 feet 10 inches tall, weighed 160 or 165 pounds, and was dark-complected. One of the two had a "punk" hairstyle, a "short bush [A]fro." [FN15] The gun was all black and sounded like a nine-millimeter. Nothing was said before the shooting started. After, everyone ran into the house. Wallace only made it to the porch.
[FN15] Little was in contact with Johnson sometime after the shooting. Johnson did not have an Afro, nor was a small Afro wig found. Little also saw Dixon two days after the McNew Court shootings. There was no indication Dixon shaved or cut his hair in the preceding couple of days, nor were any wigs found on him.
Othelon related that he did not see any cars come up and stop anywhere in the area before the shooting started, and that he did not notice the shooters until after they had stopped shooting. Othelon estimated he heard at least eight shots, and that it sounded like they all came from the same gun. He did not recognize either of the assailants, although he believed he would probably recognize them if he saw them again. [FN16]
[FN16] At trial, Othelon testified that just before the shooting, he was sitting in Miller's truck, installing stereo speakers. He further testified that the only time he ever saw Dixon was when they both were in prison sometime after the shooting, but the two were in different locations and never met. Beyond that, Othelon claimed that he was unable to remember anything, did not want to testify, and was not going to identify anyone. He did not remember talking to Little or what he told the grand jury.
Kern County Sheriff's Senior Deputy Pratt spoke to Othelon on February 1, 2008, while Othelon was in prison. Othelon admitted being a gang member. He said he was Eastside or Stroller Boys, and that at the time of the shooting, things had been "pretty tense" between Eastside and the Country. Pratt again talked to Othelon on December 10, 2008, after Othelon paroled, with respect to a rumor Pratt had heard about Othelon being threatened by Dixon while in prison. Othelon denied being threatened and said that if Dixon had threatened him, Othelon would have "taken him out." Othelon told Pratt that he used to live in the Country and knew Dixon from his childhood, when they would ride dirt bikes together. Othelon said Dixon told him, as kind of an apology, "I didn't know it was your auntie's house."
When brought into the hospital, Alcala was in a deep coma. She had a penetrating injury to the posterior portion of the occipital area of the brain, with the entry site on the right lower back portion of the skull and the bullet's direction of travel upward to the left, and back to front. There were bone and metallic fragments in her brain. She died during surgery performed in an attempt to control her continued rapid bleeding. The cause of death was gunshot wound of the head. Alcala was pregnant with a boy whose gestational age was approximately 12 to 14 weeks. The fetus was medically healthy and died as a result of the mother's gunshot wound to the head.
Wallace suffered an entrance gunshot wound to the right side of his chest, underneath the armpit, with an exit wound in the left shoulder area. The bullet traveled right to left and slightly upward. The absence of soot or stippling indicated the weapon was more than three to four feet from him when the shot was fired. The cause of death was gunshot wound of the chest. As the bullet injured internal organs and major vasculature of the heart, he lived a matter of a minute to minutes after he was shot.
The day after the shooting, Marshall and Little began investigating the Samsung cell phone found in the coat pocket. Marshall ultimately was able to determine the phone's number. At about 2:00 p.m., the phone rang, and the caller asked for "Dodo." Little checked some law enforcement databases and discovered that Dixon used the moniker Dodo. Little obtained photographs of Dixon maintained by law enforcement. They revealed that Dixon bore tattoos related to the Country Boy Crips and its Watts and Lotus clique. There were photographs of Dixon stored in the phone's memory. The screensaver for the phone read, "Watts wit it."
Further investigation into Dixon led Little to an apartment in the 2600 block of Chandler Court, Bakersfield, which was the residence of Myeshia Herring. Myeshia related that Dixon had called her and said he needed a place to stay because of some parole issues. She texted him the address. He moved in Wednesday, April 18; she did not see him at all on Thursday, April 19; they left together on Friday, April 20; when she got back early Saturday morning, he was not there, but he was there when she got up later that day; later on Saturday, he left with Myeshia's friend, Gina Stewart, in a white 1990's Chevrolet Caprice. Little examined Myeshia's cell phone, which contained the number of the Samsung cell phone found in the coat pocket in the address book under the name "friend."
Little told Myeshia to tell Dixon to call Little when she saw Dixon. About three hours later, Dixon contacted Little and then voluntarily came to the sheriff's office. Little took identifying photographs and more detailed photographs of Dixon's tattoos. Dixon, who was wearing dark blue pants and light blue boxers, was allowed to leave after he was photographed.
On April 25, Little interviewed Myeshia again. [FN17] Myeshia reiterated that Dixon needed a place to stay, and she simply replied by text message to whatever number he used to contact her. Dixon moved into the apartment Wednesday and spent the night. Thursday, the night of the McNew Court shootings, he was at the apartment in the daytime, but not at night. When Myeshia woke Friday morning, Dixon was not there, but he did spend the night Friday. Myeshia related that she had Dixon's number stored in her phone as "friend, " and that he had grown suspicious of her after Little interviewed her the first time.
[FN17] At trial, Myeshia either denied, or testified she did not recall, telling Little anything about Dixon during the interview. A video recording of the Interview was shown to the jury.
Myeshia related that her nickname was "Messy 1, " and that she had known Dixon since they were in junior high school. She said she saw Dixon on the day he got out of prison. With respect to the Samsung cell phone found in the coat pocket, Myeshia related that her sister Mikeshiea gave the cell phone to Dixon shortly after his release from prison. Myeshia said that every time she called that phone, Dixon answered.
Myeshia related that about a week before this interview, Dixon called Myeshia from a number she did not recognize. When she asked him about why he was calling from that number, he said he did not have his other phone because he had lost it. When she asked how he lost it, he told her not to worry about it.
Myeshia said she had known Johnson for several years. He had a girlfriend who was Hispanic and several years older than him. Myeshia said she had never known Johnson and Dixon to be close. Dixon was always by himself or with "the girls." Meanwhile, Marshall obtained a search warrant for the subscriber information and tolls for the Samsung cell phone found in the coat pocket. Records listed the phone's subscriber as Dominique S. Clayton, with an address in the 4400 block of Balboa Drive, Bakersfield. The phone was activated on March 10. On the evening of April 27, Rennie and Little went to an apartment in the 4400 block of Balboa Drive - the same street address as the subscriber of the phone found in the coat - to interview Mikeshiea. Mikeshiea's middle name was Dominique, and she had a child by Gary Clayton.
Mikeshiea gave Little and Rennie permission to enter to look for Dixon. They did not find him. Mikeshiea denied knowing anyone named Dominique Clayton or ever giving Dixon a cell phone, although she admitted knowing someone named Dodo and identified Dixon's photograph.
Little examined Mikeshiea's cell phone. The screen read "Messina #2." When he inquired of Mikeshiea, she said that she and her sister Myeshia used the names "Messy 1" and "Messy 2." Mikeshiea said she was Messy 2, while Myeshia was Messy 1. Little found no reference in Mikeshiea's phone's contents to the number of the Samsung cell phone found in the coat pocket or to the name Dodo. There was, however, a number for "Pook, " whom Mikeshiea identified as Columbus Holford and with whom Little was familiar. [FN18]
[FN18] Mikeshiea testified at trial that she and Myeshia never went by the nicknames Messy 1 and Messy 2. On Mikeshiea's MySpace page, however, she referred to herself as Messy, while people who posted messages to her referred to her as Messy or Messy 2. At trial, Mikeshiea testified that she had never heard of or called the number of the cell phone found on McNew Court and did not know Dixon personally, although she knew him to be a friend of her sister. She denied ever giving him a cell phone.
Myeshia also denied telling Little the things to which he testified. She testified that she had only known Dixon, whom she knew as Dodo, for a couple of years. Although she was aware he went to prison, she did not meet with him the first day he got out. She did not know if Dixon had a cell phone. She and Mikeshiea did not help him get that phone. Myeshia had seen Johnson and knew who he was, but had not spoken to him. Myeshia knew Lee, as he had lived on the same street as her grandmother, and he and Myeshia went to the same church. However, she denied ever talking to him. Myeshia admitted allowing Dixon to use her address as a mailing address, but denied that he ever moved in with her. She denied ever texting Dixon her address.
The phone found at the scene listed Messy 1 and Messy 2 as the first two contacts in its address book. A text message stored in the phone from Messy 2, dated April 21, read, "Friend, are you okay? Call me. It's important. Please call me." Another text message in the phone, dated April 16 and from Messy 1, gave an address in the 2600 block of Chandler Court. The address, which was the same as that determined to belong to Dixon, was Myeshia's apartment. One of the text messages from Messy 1 was directed to Dodo. One of the texts, dated March 27, read, "F-u-c-c U." Kern County Sheriff's Senior Deputy Pratt had seen that spelling in the course of gang investigations. According to some people, "CK" is not used because it stands for "Crip Killer." According to others, "CC" stands for "Country Boy Crips."
Cell phone records showed calls between Dixon's phone that was found in the coat pocket at the McNew Court crime scene and Mikeshiea's and Holford's phones. Records further showed a series of eight calls, beginning at 7:19 p.m., made from Dixon's phone to a number determined to belong to Lee's cell phone. A search warrant was obtained, and records seized, for Lee's phone number.
Cell phone and cell tower records for Dixon's phone showed a grouping of calls occurring in the vicinity of the cell phone antenna with coverage of the McNew Court area, from 7:14 p.m. through 7:45 p.m. The first six were made on the antenna consistent with the shooting scene in the 1300 block of McNew Court. The seventh call, which was made beginning at 7:45 p.m., was almost four minutes long. It began on the antenna consistent with the 1300 block of McNew Court, but ended on the antenna consistent with the 1200 block of McNew Court. The eighth call did not register on an antenna, which was consistent with the phone being powered off, either intentionally or because the battery died. This last call was an incoming call from Lee's phone that occurred at 7:54 p.m. Records further showed activity that was consistent with Dixon's phone being in the area of Inyo and Monterey at 6:45 p.m. on March 21.
Records for Lee's phone showed that when the 7:19 p.m. call was received from Dixon's phone, Lee's phone was north of Highway 58, which in turn was north of McNew Court. By the time the 7:25 p.m. call was received, Lee's phone had moved south of Highway 58, in an area covered by the antenna that had coverage of the McNew Court vicinity. The third call from Dixon's phone to Lee's phone occurred at 7:40 p.m. Dixon's phone was on the antenna that encompassed the 1300 block of McNew Court. The next incoming call was the nearly four-minute one; Lee's phone was still on the same antenna. The outgoing call at 7:54 p.m. was moving away from that antenna. The next call, made at 8:02 p.m., which was after the shootings were reported, was from the antenna that covered Cottonwood Road and Highway 58. The phone was probably north of the highway at the time; the call was outgoing to a number associated with Joseph Gage, whose moniker was "Gage." Dixon's phone had contact with that number before the shootings.
Events Surrounding August 11, 2007
Sometime after 9:00 p.m. on March 25, Adrian Bonner was getting a tattoo at a tattoo parlor in the vicinity of H and 20th Streets, in downtown Bakersfield, when Lee and a light-skinned, green-eyed Black male came in. Bonner knew of Lee, although he did not know him personally, because each had once dated Saleta Roseburr. Bonner last saw Lee about a month before Lee walked into the tattoo parlor.
When Lee walked in, he and Bonner made eye contact, and Lee acknowledged the people he knew there. He asked Bonner's female friend if this was her "dude." When she said yes, Lee talked a little more and then walked back outside.
Lee was outside a minute or two. Bonner did not know what he was doing. Lee then walked back inside, went up to Bonner, and asked if Bonner was a Blood. He also said something like, "[T]his Little Gunner Loc from South Side Crip. I just want you to know where you're at." Bonner was aware the Bloods were a criminal street gang and that their color was red. He did not believe he was wearing any red that night.
The tattoo artist said it was a place of business and that they did not have to worry about any of that there. The situation caused Bonner to start feeling nervous, and so he asked for a cell phone so he could call a family member and let that person know his whereabouts. His girlfriend handed him her phone, and he dialed all the relatives he thought would be home, but got no answer.
During this time, Lee produced a cell phone and started showing everyone the pictures on it and telling them to look at what was done to his hand, which was bandaged, and his truck. Curious, Bonner asked to see. He saw a picture of injuries to Lee's finger, and of a truck with bullet holes in the windshield.
The artist was still doing Bonner's tattoo, and Lee went outside and came back in a couple more times. At some point, one of the other males said, "your homeboy Rifle's here." Lee walked outside, then returned a few seconds later with Johnson, whom Bonner had never seen before. Lee sat down, but Johnson kept walking in and out of the parlor and looking at Bonner in an awkward kind of way. By this point, Bonner was feeling very intimidated.
When the tattoo was finished, Bonner got up, shook the artist's hand, and paid him. Lee was sitting on the couch a few feet from Bonner, talking about how his pain medicine had him tired. Bonner also shook another male's hand. He then extended his hand to the third male, but that person just looked at him and said, "nah, Watts." [FN19] Bonner knew what this meant and that Watts was located in the Country.
[FN19] Neither of these males was Dixon, who was not in the tattoo parlor.
Bonner turned to leave. As he was on his way out, however, Johnson, who was standing in the doorway, struck him in the face with his fist. The person to whom Bonner had extended his hand also started hitting him. Both Johnson and the other man struck Bonner multiple times. Dazed and almost unconscious, Bonner tried to cover up as he lay on the floor of the tattoo parlor, being hit and kicked. He did not know where Lee was.
At some point, the blows stopped. Bonner got up and ran. He could hear voices coming from the alley, threatening to get him and kill him. He ran until he felt he was a safe distance away, ending up a couple of blocks away at a men's shelter. He went inside and stayed there for 45 minutes to an hour, then one of the residents was able to contact Bonner's girlfriend. She took him to his cousin's house, and Bonner contacted his father. Although Bonner did not give a statement to police that night, his father did.
Bonner was not a Blood, but he had friends and family members who were. He associated with Bloods "all the time." The Eastside, Westside, and Country were the Bloods' rivals. As of March, Bonner was acquainted with Daniel Davis (Grinnage's son), who lived on Deborah Street. Bonner would regularly visit Davis at that house, as would Bloods. In Bonner's estimation, that house was a Blood hangout. A couple blocks away, on Deanna Street, was a house where Country Boys tended to congregate. Bonner had seen Lee there on a couple of occasions. Lee was driving a Tahoe at the time, the same one in the pictures in Lee's cell phone. At the time, the Bloods did not really have a territory, just certain places they would be at. One of these places was on the east side, near Monterey Street.
Between March 25 and August 11, Bonner saw Lee a couple of times in traffic. Both times, Lee was in a black Volkswagen Jetta or Passat.
On August 11, Bonner was living with his sister in the southwest part of Bakersfield. About 10:30 that morning, he borrowed a car and drove to the Denny's on White Lane. He was alone. While he waited for his order, which he had already called in, he talked to Saleta Roseburr, who worked there. Bonner felt someone staring at him, and turned to see a person he knew as "Cutty Pete." Bonner knew him from a prior incident in which he and Bonner's cousin had had an altercation. At that time, Cutty Pete said he was from the Country, meaning he was a Country Boy Crip.
Bonner and Cutty Pete exchanged words. Cutty Pete threatened to hurt Bonner, who laughed at him. Bonner got his order and got back in his vehicle, at which time Cutty Pete came to the door of the restaurant and started "[t]hrowing up signs" through the window and saying things Bonner could not hear. This occurred shortly after 11:00 a.m. Bonner did not see Cutty Pete any other time that day.
Later that morning, Bonner picked up his friends, Paul and Dwayne, who lived directly south of the Foods Co. at White Lane and South H Street, and headed toward a barbershop in the vicinity of Real and Wilson Roads. They were at the barbershop for approximately three hours. Another friend was there, and he asked for a ride. Bonner took him home, then took Paul and Dwayne back to their house.
Bonner next went to the Taco Bell by Foods Co. to eat. It was around 4:00 or 5:00 p.m. Although he was wearing all red that day, he was not trying to dress like a Blood; it simply happened to be what he had on. As he was leaving the parking lot, he saw Lee two, to two and a half, car lengths away from him in a 2001 or later small, four-door, reddish-burgundy car that Bonner believed was a Suzuki Forenza. Lee, who appeared to be alone, did a double- or triple-take, and Bonner made eye contact with him. Bonner then pursued him in the vehicle, and ended up directly behind him, headed east on White Lane. Bonner wanted to fight Lee because of what had happened at the tattoo parlor.
The light at South H Street and White Lane turned red, and both cars stopped. It looked like Lee was going to go straight, but then he ran the red light and turned left, heading north on South H Street. Bonner did not follow, but instead made a U-turn and headed back to Paul's house. He wanted to let Paul know that Lee was in the area. Bonner was concerned that if Lee had seen Bonner in the car earlier in front of Paul's house, something could happen at the house.
Bonner remained at Paul's house for five or 10 minutes, then headed out to return the car. His route took him north on South H Street, then west on Planz. As he came to where Real Road dead-ends into Planz, the light turned red for traffic on Planz. Bonner stopped. His was the fourth car back from the intersection. He was listening to music when he heard a loud popping sound and felt his body jolt. Out of the corner of his eye, he saw a burgundy vehicle passing by the passenger side of his car. He did not know if it was the same car Lee had been driving earlier, although it was the same color, or even if the shots came from that car. He did not see who or how many were in the vehicle.
Bonner knew immediately it was a gunshot, but did not know if it was more than one, as it all sounded like one drawn-out noise. He felt something hit him, and checked himself over. His vision blurred, and when he began to move, he started to feel a burning sensation in his abdomen. He tried to get out of the car, but could not move his legs. He felt only tingling in his lower body. He was able to get the car to roll, and so made a right turn onto Real Road, and the first left turn possible, which was into the driveway of someone's house. Someone there called 911 and an ambulance. About 20 minutes had elapsed from when he saw Lee on South H Street to when he was shot.
When talking to the officer at the scene, Bonner never mentioned Lee or the other defendants. He said he did not know who shot him and could not describe the suspects, although he thought the shooter was the person with whom he had had the altercation at Denny's. In light of Cutty Pete's belligerence and aggressiveness, Bonner had considered the incident with him more significant than the incident with Lee in the parking lot.
Christopher Calloway lived at the house on the corner of Real Road and Planz. Around 7:22 p.m., he was outside when he heard at least two gunshots. He saw a car waiting at the red light. A second car pulled up on the right side and someone in the second car shot toward the other car. Calloway believed there were three individuals in the car from which the shots were fired. The shooter was a darker-skinned African-American male wearing a black hat or do-rag, sitting toward the left side of the vehicle in the back seat. The driver and front passenger also were African-American and, Calloway believed, male. The shooter's arms, shoulders, and head were outside the window until after the second shot. The gun was a black handgun. The car was a burgundy color, possibly a newer-model (late-1990's or early 2000's) Ford Taurus or something of that nature. Calloway believed it was a four-door model. The car rounded the corner and then sped north on South Real Road. Calloway could not say whether any defendant was in the car from which the shots were fired.
Ruben Gonzaga and some friends were outside a house on the south side of Planz, talking, when Gonzaga heard a loud pop. He saw gun smoke outside one of the windows of a cherry red, four-door car - possibly a Chevrolet sedan or Ford Taurus - that sped off. He believed he heard two shots. He could see at least two people in the car, but believed there may have been three or four. Gonzaga was unable to tell who in the car was shooting or the race of anyone in the vehicle.
Talia Zarate and Bryan Kunzmann were traveling westbound on Planz and had to stop for a red light at Real Road. There was one car stopped in front of them. They had been at a full stop for a couple of seconds when a small, four-door, maroon or cranberry-colored car pulled up beside the vehicle stopped in front of Zarate. A young, dark-complected African-American rolled down the driver's side rear window. He was wearing a black beanie cap and had a goatee. Half of his body came out of the vehicle, and he started shooting a black gun at the vehicle in front of Zarate. He was using a two-handed grip. Zarate did not know if anyone other than the shooter and the driver was in the car. She did not know if any defendants were in the car.
Kunzmann described the car as being either dark red or burgundy. It was a late, four-door model, and either a Ford Taurus or something with that type of rounded body style. [FN20] The shooter, whose arms were outside of the car window, was an African-American male in his early 20's, wearing a black sweatshirt or long-sleeved T-shirt, and a black hat or beanie. He had a neatly trimmed goatee. There were three people in the car, all African-American males: the driver, the front passenger, and the driver's side rear passenger.
[FN20] In his 911 call, Kunzmann said the car was red and looked like a Toyota Corolla.
Bonner was shot in the right side of the chest, close to the armpit. [FN21] The bullet caused major, life-threatening abdominal injuries, including the loss of a kidney and damage to the spinal cord. He underwent almost immediate surgery to control internal exsanguinating hemorrhage. As a result of the gunshot wound, Bonner was left a permanent paraplegic. The bullet was not recovered, because it was lodged in the spine, and the neurosurgeons felt it would be too dangerous to attempt to remove it.
[FN21] He suffered a second injury in the same area, but it could not be identified with certainty as a bullet wound. When Kunzmann spoke to him immediately after the shooting, however, Bonner said he had been hit twice. In addition, Officer Vasquez saw two bullet holes in the car, one on the right rear passenger quarter panel, and the other on the passenger-side front by the door handle. Two expended nine-millimeter shell casings were found on the east side of the intersection. They had been fired from the same gun.
Later that month, Kunzmann was shown three photographic lineups, one containing each defendant. He did not identify, select, or eliminate anyone. However, records for Lee's cell phone showed that calls made or received between 10:17 a.m. and 3:52 p.m. were routed through the cell antenna site near Lee's residence on Myrtle Street. Calls between 4:22 p.m. and 4:34 p.m. were routed on the antenna at South Real and Wilson Roads. Calls between 4:58 p.m. and 6:48 p.m. were routed on the antenna that covered an apartment complex at Eye Street, although the calls moved from the side of the antenna facing due north to the side facing southeast during that time. Between 6:48 p.m. and 7:01 p.m., there were several calls between Johnson's residence on Thoreson Court and Lee's phone. At 7:18 p.m., a call was made from Lee's phone that, given the cell phone tower on which it originated, was consistent with the phone being to the east, or at the corner, of South Real Road and Planz. At 7:28 p.m., the antenna registered a call that was consistent with the phone being in the Thoreson Court area. The phone then moved north.
On August 16, Kern County Sheriff's Senior Deputy Little, and Bakersfield Police Detectives Heredia and Darbee, flew to Las Vegas, Nevada, to interview Sara Agustin, a woman who had been in a prior relationship with Johnson. The detectives returned her to Bakersfield, where she pointed out various locations to them. Agustin also provided telephone numbers of people she knew during the time she lived with Johnson, together with photographs and credit card statements.
Shortly after 8:00 p.m. on August 23, Bakersfield Police Officer Finney and his partner, Officer Ursery - both assigned to SEU - were on patrol on Dobrusky Drive in Bakersfield, an area within the traditional boundaries of the Westside Crips. They observed a gray Nissan, motor running, parked in front of a house from which Finney previously had seized firearms. Columbus Holford, who lived there and whom they knew to be a Country Boy Crip with the moniker "Pookie, " was speaking to three subjects inside the car.
As the officers approached, Finney recognized Dixon as the Nissan's driver. Aware Dixon was on parole, Finney yelled at him a couple of times to turn off the car and step out so he could perform a parole search. At first there was no reaction, but then Dixon accelerated away. A vehicle pursuit ensued.
In front of an apartment complex in the 100 block of L Street, Dixon stopped, and the occupant in the front passenger seat jumped out of the vehicle. Ursery pursued him on foot. The individual was a dark-skinned African-American male, six feet or six feet one inch tall, about 175 pounds, with short hair. Ursery was unable to catch him.
Meanwhile, Dixon again sped off. At one point, he drove through the 200 block of Eye Street, then subsequently returned to the apartment complex on L Street. There, the car again stopped. The driver's door opened, then, after about 15 seconds, closed again and the pursuit resumed. On northbound Chester, the vehicle pulled into the center turn lane in the 200 block and slowed significantly. Dixon jumped out and ran, eventually climbing the back wall of the parking lot for an apartment complex in the 200 block of Eye Street. The vehicle continued on until it hit a curb and came to a stop. Finney followed it and found Lee sitting in the rear passenger-side seat. In a partially unzipped lunch pouch on the left rear seat, directly behind the driver, were a loaded Tec-9 pistol and additional rounds of ammunition.
The Nissan had been reported stolen from an apartment in the complex in the 200 block of Eye Street, although investigation revealed it had not actually been stolen. Officers determined that Dixon had jumped a wall to the east of the complex. On the west side of the wall, in the apartment complex's rear parking lot, were three live rounds of ammunition. One of the cars parked in the lot at the back of the complex at that time was red.
Dixon was arrested shortly after midnight on August 24. He was taken into custody at his residence in the 2900 block of Half Moon.
On October 1, Kern County Sheriff's Senior Deputy Lopez and other officers executed a search warrant at the residence on Myrtle Street in which Lee lived with his father. Lee was in custody at the time. Lopez found letters referencing gang activity that were addressed to Lee and appeared to be from his brother in prison, photographs depicting persons throwing gang signs, and rap lyrics containing references to gang activity. Also found were a gas mask, some articles of powder blue clothing, multiple rounds of various calibers of ammunition, and a baggie containing a usable amount of marijuana.
That same day, Lopez and his team executed a search warrant at the apartment in the 2900 block of North Half Moon at which Dixon had been residing. Dixon was in custody at the time of the search. In addition to some bills addressed to Dixon at that address, officers found a California identification card for Johnson.
Sara Agustin's Testimony
Sara Agustin, who testified under a grant of immunity, first met Johnson in late September 2006, when he was 20 years old and she was 36. She was driving to a market on Cottonwood Road and Casino to purchase marijuana, when she saw Johnson and his friend, "Fat-Fat, " walking to the market. Agustin pulled over and asked Johnson if he knew where she could purchase marijuana. Johnson eventually directed her to the house of a drug dealer, about three blocks away. The dealer's nickname was "Reese, " and he lived on Reese Street. With money provided by Agustin, Johnson purchased marijuana, then he, Agustin, and Fat-Fat went to the latter's apartment and smoked some. Agustin and Johnson exchanged telephone numbers.
During the next month to month and a half, Agustin and Johnson shared the common bond of smoking marijuana, and they had fun together. At the same time, Agustin's relationship with her husband deteriorated, and they separated just before Thanksgiving 2006. Johnson and Agustin then moved into an apartment in the 2500 block of Encina Street in Bakersfield. Agustin was employed at the time, but Johnson was not. He told Agustin he was selling crack cocaine, and showed her white rocks. He said he "post[ed]" himself at the market where they first met, meaning he sold the drugs there. Johnson said he got his cocaine from his uncle and "Two C's."
When Agustin first met Johnson, she did not know whether he was in a criminal street gang. She became suspicious, however, when he would take her to the Country and she would see his behavior. [FN22] They would be at an intersection, and he would see one of what he called his homies, and he would make what sounded like bird noises and make signs with his hand. Early in 2007, Johnson told Agustin that he was a member of the Country Boy Crips, and that they "pushed the hood, " meaning they protected the neighborhood from rival gangs. Although Johnson did not grow up in the Country, he said he became a Country Boy Crip around the age of 14 or 15. Johnson explained that he was jumped by rival gang members then. They broke his jaw, and he began to "have hate towards certain types of individuals." That was what got him interested in being part of a gang. Johnson said the rivals of the Country Boy Crips were the Bloods and the Eastside, whom he derogatorily called "slobs" and "eggs." Johnson told Agustin that the Country Boy Crips did drive-by shootings and sold drugs.
[FN22] The Country is considered the southeast part of Bakersfield. The main street is Cottonwood Road.
Johnson had several monikers, but was most commonly called "Rife" and "Rifle." [FN23] Johnson explained to Agustin that his "big hom[ie], " "Big Rifle, " had given him that name because Johnson was someone "who was bold enough to really push the hood." Johnson said he admired Big Rifle, who was now deceased.
[FN23] Agustin's daughter heard one person call him "Rifleman."
When Agustin first met Johnson, Johnson had several tattoos. On the first three fingers of one hand were an "E, " an "S, " and a "K, " which Johnson said meant Eastside Killers. A tattoo on his chest read, "fuc[c] them other niggas." Johnson explained it was derogatory to his rival gangs. While they were living on Encina Street, he got a tattoo on his lower back that said "2007" and "NC." Johnson explained that 2007 was "the year of the Country, " and that NC stood for Neighborhood Crips. He also pointed out Watts and Lotus to her and said he claimed or "pushed" Watts.
Agustin encouraged Johnson to quit selling drugs and learn a trade. He began going to barber school in early 2007. She also discouraged him from participating in the gang. Over the course of their relationship, however, Johnson began to tell Agustin about his gang activities. With respect to the gang, Johnson said he was the boss, so he pretty much did what he wanted to do. In order to have that position of leadership, he said he did anything necessary. During the middle of the relationship, while they were living on Encina Street, Johnson told Agustin that he was a hit man. He said that if other people in the gang needed something done, they called him, because he was the one who could get the job done. He was not afraid of anybody.
Agustin met Lee in around October 2006, when she had known Johnson a couple of weeks to a month. She met him through Johnson. Johnson referred to his friends as homies, loc, and cuz. He explained that Crips called each other Cuz. He also explained that powder blue was the color of the Country Boy Crips. Johnson sometimes wore that color, but he would wear any color. Sometimes his friends wore powder blue, but not on a regular basis.
After Agustin met Lee, she saw him often, as he was Johnson's best friend. Johnson said they had known each other since childhood. Lee lived on Myrtle Street with his father. Myrtle Street was in Central Bakersfield, not in the Country. However, Lee's mother lived in the Country. At some point, he told Agustin that he worked in Los Angeles as a respiratory therapist. She saw him in various automobiles during the time she lived on Encina Street, most often a powder blue Magnum that he liked to rent. He also had his own car, a small black vehicle. In the first part of 2007, Agustin and Johnson were at Lee's house on Myrtle Street. Somehow, the topic came up, and Lee said he hid guns in the backyard. He did not give a specific location.
Sometime after February, while living on Encina Street, Agustin heard Johnson and Lee talk about being Country Boy Crips. They carried on conversations about their neighborhood and activities. They discussed drive-by shootings. On August 13, Agustin heard Johnson call Lee "Gunman." This was the only time she heard Lee called anything but "Dave." Agustin never saw Lee flash hand signs. Johnson was more blatant about being in a gang than Lee. Lee did not dress like a gang member.
Agustin knew Dixon only as Dodo. Although she did not meet him until the spring of 2007, he and Johnson were together almost daily during the time Agustin and Johnson lived on Encina Street. They were together even more frequently in July and August, after Agustin moved away and then returned to Bakersfield with Johnson. Agustin also often saw Lee with them while she lived on Encina Street, and more often during July and August. Occasionally, Dixon talked to Johnson, in Agustin's presence, about being a Country Boy Crip. In addition, Johnson told Agustin that Dixon was a Country Boy Crip, as was Lee. Johnson also identified "Big Gage, " "Little Gage, " "Nip, " a woman named "Cece, " her husband Jim Herron (also known as "Big Boy" or "Big Jim"), Bradley Walker (also known as "Bus Loc" or "Buzz Loc"), "Goo, " "D-Keys, " "Two C's, " and someone Johnson referred to as "the light hom[ie]" as Country Boy Crips. Johnson obtained marijuana from Herron whenever he wanted. Agustin never saw him pay Herron. Herron also provided Johnson with Ecstasy. Agustin saw Dixon at Herron's house one time, and Lee there more than once but not often.
In January, around Martin Luther King, Jr.'s birthday, Johnson and Agustin attended a barbecue in Casa Loma Park, which was located in the Country. Johnson said it was the year of the Country, and they were going to celebrate it. [FN24] Johnson wore a black shirt that he designed. Lee had an identical shirt. According to Johnson, he and Lee drove to Los Angeles and had the shirts made specifically for them. Johnson's shirt read, from top to bottom, "2007, " "S, " "Wingstone, " "Watts Blocc, " "monstas." Johnson explained that S stood for Southerner, the side of town on which their gang neighborhood was located. Watts was the name of a street in Johnson's neighborhood in the Country, and the block he represented was Watts block. Monstas meant monsters, and Johnson said he was a monsta. The back of the shirt read, again from top to bottom, "Naybors, " "Southsiders, " "Shell Killa, " "Country." Shell was one of the monikers used for rival gangs. It meant eggs. The phrase meant Johnson was a shell killer, i.e., someone who would kill an egg. Country was Johnson's neighborhood. Each sleeve bore the letters "SSC, " for Southsider Country.
[FN24] Dixon was in prison at the time. Agustin did not believe Lee was present, as she did not see him that day.
Two or three times in early 2007, Agustin went with Johnson to purchase marijuana at a house a couple of blocks off Pacheco Road. Agustin never met anyone who lived at the house, and never saw Dixon or Lee there. However, in the first part of 2007, Agustin was present when Lee and Johnson discussed Lee's car being hit by gunfire in the area of Pacheco Road. [FN25] Lee said he and Johnson had gone to the location on Pacheco Road to purchase some marijuana, and in the process, they were shot at by some individuals. Both told Agustin they themselves were not armed. Lee said his vehicle was shot numerous times. He and Johnson both were angry, and Johnson said they needed to go back and retaliate. Lee wanted to submit the damage to his insurance company, but he said he regretted submitting the claim because the insurance company required a police report, and that was how the police department found out the shooting had taken place. Lee and Johnson did not talk about the specifics of what they were going to do or when.
[FN25] The neighborhood containing Deborah Street and Deanna Way is north of Pacheco Road and just east of Monitor Street.
Within a day or two, Lee came to the house on Encina Street with his arm bandaged. Agustin and Johnson were present. Lee unwrapped his arm and talked about how he had gotten shot in the arm when they went back to retaliate for the initial shooting on Pacheco Road. [FN26] Lee said they parked away from where the initial shooting occurred so that their vehicle would not be spotted by those who lived in that location. Johnson said that after they parked, they began walking toward the location where the initial shooting had taken place. Lee said they were walking toward where the individuals lived, or were thought to live, when they spotted a vehicle driving toward them. The individuals in the vehicle were the same ones who had shot at Lee's vehicle, and they now began to shoot toward Lee and Johnson. Johnson told Agustin that he pulled out his gun, but as he went to fire, the gun jammed. He and Lee then began to run from the individuals in the vehicle, who continued shooting at them. Johnson related that he and Lee ran in different directions. Lee said he jumped over a fence, but it broke and he injured himself. Lee was very angry and said he wanted to get them back. Johnson said those who had shot Lee were their rival gang on the east side.
[FN26] Agustin was already aware Lee had been shot, because Johnson had told her.
During this time, Johnson was attending barber college on the east side of Bakersfield, on Niles Street. One day within a couple of days after Lee was shot, Agustin picked Johnson up from school. Johnson then drove on a dirt road beside a canal in a neighborhood in the area of Monterey and Niles. He said he was scouting rival gang members who were hanging out in that location, and he pointed out a residential area. He drove through and pointed out some African-American males who were standing outside, right off of Monterey Street. One was wearing red, which Johnson also pointed out. Johnson said they were coming into the barbershop, and he was scared for his safety. He said he could not take his gun into the barbershop because the owner, who was his teacher, had security cameras, and he was feeling really helpless without his gun. He said that now he would have to start taking his gun to the barbershop, but that he would leave it in the vehicle.
One morning after this time, Johnson gave Agustin a pair of white Nike tennis shoes with red on the emblem and a red hoodie sweatshirt Agustin had bought him, and told her to destroy the items because they had been involved in a drive-by shooting he had committed in the canal area. He said that a couple of days earlier, he and Lee went to the area. Lee was driving his black vehicle. Lee parked in an alley and Johnson got out. He put on a mask and walked to the front of a residence, where a couple of individuals were sitting. [FN27] Johnson walked up to one and started shooting. Johnson said he shot this person several times and thought he had killed him. Johnson told Agustin that Lee wanted to go and retaliate for the shooting that took place on Pacheco Road, but Lee could not shoot the gun himself because his arm had been injured and so Johnson had to shoot on Lee's behalf.
[FN27] When Agustin and Johnson lived on Encina Street, Johnson possessed a black mask that looked almost like a gas mask. Agustin's credit card receipt showed she bought the mask for him on March 30. Johnson said he wanted it for smoking marijuana. Johnson did not tell Agustin what he was wearing or the kind of mask he used during the shooting. During the time the couple lived on Encina, Agustin's daughter observed a black ski mask in a duffel bag Johnson kept in Agustin's closet. On one occasion, Agustin's daughter saw Johnson leaving the house with the duffel bag. He appeared to be in a hurry.
Agustin burned the sweatshirt in the fireplace of the Encina Street residence, and discarded the shoes in her trash can, because Johnson told her to get rid of the items. She did not feel she had a choice. By that time in the relationship, he often hit her. Although she knew she was helping Johnson cover up a crime, she felt helpless, because he had told her he would kill her if she ever left him or told on anything he did. Johnson subsequently told her that the person he shot had survived.
On March 25, Johnson and Agustin went to Disneyland and Santa Monica. They came straight home, because Johnson was in a hurry to get home and be with his friends. Agustin believed they reached Bakersfield around nightfall, and she was almost certain he then went out with his friends. Johnson said nothing to her around this date about beating up a Blood gang member or someone at a tattoo parlor.
For Christmas of 2006, Agustin bought Johnson a black Volcom-brand pea coat. For Johnson's birthday on April 12, Agustin bought him a blue hat with "B" or "S" on it and a white jersey. While attending barber college, Johnson had to wear a tan, zippered smock. [FN28]
[FN28] At trial, Agustin identified the pea coat, hat, and shirt found on McNew Court as the ones she had purchased for Johnson. The smock found on McNew Court was the same kind worn by Johnson at the barber college.
Johnson normally came home around 11:00 p.m. or midnight. Agustin did not know what he was doing at those times, although he went out a lot with Lee. About a week after his birthday, however, he came home several hours earlier than usual. He was very startled. He told Agustin that he had done something and that they needed to go back to the location, but that they had to wait until 3:00 a.m., when it would be safe and there would be no police around.
A few hours later, Johnson told Agustin that he, Lee, and Dixon had driven to a certain location on McNew Court. Lee was driving. He parked the car, and they watched a particular vehicle. Lee and Dixon then stayed in the car while Johnson got out, approached the other vehicle, and started shooting. Johnson said he could not see inside the vehicle, but he thought there was someone inside. Johnson told Agustin that after he shot, he ran to another location, then took off the clothes he was wearing and hid them underneath a vehicle. He did not specify what he was wearing. Johnson wanted Agustin and her daughter, who was living with Agustin at the time, to say that he was at home with them, watching movies, if anything ever came up about that night. He said he needed to go pick up a gun, but he wanted to wait until 3:00 a.m. because he thought all the police would be gone from the area.
At exactly 3:00 a.m., Johnson told Agustin that it was time to go. Agustin drove, with Johnson directing her, through the McNew Court area. Because she did not have her glasses and could not see well, her driving was somewhat erratic. Upset, Johnson told her that she needed to be more careful, because they could get pulled over by the police and that would jeopardize him.
They drove past McNew Court. As far as Agustin could see, there were no law enforcement officers in the area. Johnson directed Agustin to turn one block past McNew Court, and then to make a U-turn. He then had her park as close to the curb as possible by the mailbox of a house with a brick wall and wrought-iron fencing, and that had a van or similar large vehicle parked in front. Johnson then reached out of Agustin's vehicle, took a dark-colored gun out of the mailbox, and placed it on his lap. [FN29] Johnson had guns at the house on Encina Street, and this appeared to be one of them. [FN30]
[FN29] When Agustin subsequently pointed out locations to law enforcement officers, she identified a house in the 1000 block of Feliz Drive, near Jastro, as the place where Johnson retrieved the gun. Senior Deputy Little determined that the mailbox in front of that house was too far from the curb for a person sitting in the passenger seat of a car to reach inside. Two houses to the west, however, was a similar-looking house with a mailbox much closer to the curb.
[FN30] Agustin observed Johnson to have a small revolver that he referred to as a .22, another revolver that jammed frequently and which he called a .38, and a large gun, about three feet long, that Agustin believed was a Tec-9 because she had heard Johnson use the term. He also had a grayish-black gun that was about the same length as the .38, but it was not a revolver and had a slide on it. He also had a black one like police officers carry. It was an older model. The .22, .38, and large gun began appearing at the residence in the early part of 2007. At some point, she did not see the large gun or the .38 anymore, but she still saw the .22. Agustin was unable to tell which gun Johnson retrieved from the mailbox because it was too dark. She knew from its size that it was not the .22. It appeared to be the same size as the .38, but did not appear to be a revolver.
Agustin and Johnson went straight home. Johnson told her how scared he was, then went to the back yard and hid the gun. He told Agustin that he needed to get rid of it right away. Johnson subsequently told Agustin he had sold the gun, but did not say to whom.
A day or two after Agustin took Johnson to the McNew Court area, Johnson received a telephone call from Dixon. Dixon was extremely upset at Johnson because Johnson had left the clothing he was wearing at the shooting, and inside the coat pocket was Dixon's cell phone. The police had found the phone and were harassing Dixon. Dixon was upset that Johnson had gotten very careless. Johnson wanted to know what the police were asking and what kind of information Dixon was giving them. Johnson did not tell Agustin why he had Dixon's cell phone, but just that Dixon was angry at him because he had taken off his clothes and put the cell phone in the pocket. Johnson said he put the clothes underneath a vehicle not far from the crime scene. Johnson expressed concern that since the police had found the clothes, he and the others were going to get caught.
On Saturday, April 21, Agustin and Johnson went to Pismo Beach alone for a night. The trip was unplanned. Johnson said he wanted them to get out of town to have some quality time together.
After the McNew Court shooting, Johnson's demeanor changed and he began drinking heavily. About a week after the shooting, Agustin asked him why. He said he had found out that he had killed a pregnant woman. Johnson seemed remorseful.
After the shooting, Dixon stopped coming to Agustin and Johnson's house for a few weeks. After that time, however, he started coming over to the house again. He said the police had stopped coming to his house as often as they had in the beginning. Dixon told Johnson that Johnson had gotten careless. Dixon was concerned he would end up being blamed, since the police had no evidence that Johnson was involved. Johnson and Dixon discussed the car used in the shooting on McNew Court; both said it was Lee's black car.
At some point in early May, Johnson told Agustin that things were "getting pretty hot" and he was afraid he was going to get caught, so he left the Encina Street house and moved to San Jose to live with his sister, Lynell Johnson. Johnson asked Agustin to move with him, because he wanted to start over. He said he was going to change his life. She did not believe him, but, hoping he really was going to change, moved in with Johnson and his sister in late May. After Johnson moved, but before Agustin joined him, Johnson telephoned and asked if she could park Lee's vehicle, a Volkswagen, in her garage. She said no, because she wanted no involvement in what they had done. He then asked if she could at least drive the vehicle to the light homie's house and park it there. Agustin agreed and took the car to 19th Street, just off of Cedar. She locked the keys inside it and left it there. A day or so later, Johnson telephoned and said that Lee had tried to retrieve the vehicle, but the police had towed it. [FN31]
[FN31] On the morning of May 2, police received a complaint of an illegally parked vehicle in the 2500 block of 19th Street, between Pine and Cedar Streets. There, a 1999 four-door Volkswagen Passat, without current registration tags, was blocking a construction dumpster. Because the registration tags had been expired more than six months, the vehicle was impounded.
After Agustin and Johnson moved back to Bakersfield from San Jose, they moved in with P.G. and Dreenie, who were close friends of Johnson. Dreenie had a wig that she occasionally wore. The hair was black and short, but not curly. One evening in late June or early July, Johnson asked if he could borrow it. Dreenie gave him the wig. After it grew dark, Johnson said he had something to do and would be back. He left the house with Lee in Agustin's Expedition. They were gone for 45 minutes to an hour or so.
When Johnson, Dixon, and Goo returned, Agustin did not see her Expedition. Johnson told her that she needed to go get Lee "in the hood, " by Reese's house. Agustin did not have a car, so she asked Dreenie to drive her. She and Dreenie drove around by Reese's house but could not find Lee, so they returned to Dreenie's house. When they arrived, Agustin's Expedition was there, and Johnson, Dixon, Lee, and Goo were on the floor of the front room. There was a bunch of money all over the floor, along with three large sandwich bags of marijuana. The men were kneeling on the floor, counting the money and sorting it out among themselves. Agustin overheard them say that they had robbed Reese. Two of them went inside to make it look like they were going to buy marijuana like usual, then Johnson and the fourth one went in, disguised and with guns. When they came in, they pointed the guns toward the others and demanded the money. Johnson said that one of the people got so scared, he "pretty much went to the bathroom on himself." Johnson said that to make it look good, he had to sock Lee in the face. Johnson, Goo, Dixon, and Lee were all discussing the robbery and laughing about how easy it had been.
Since they now had money, Johnson told Agustin to get her things, as they were going to get a room somewhere else. They then moved out of P.G. and Dreenie's house to a motel in Oildale. Johnson made Agustin use the $400 he had given her from the robbery proceeds to pay for their room and food. When the money ran out after less than a week, Agustin contacted her best friend, Alethia Larios, who lived on Thoreson Court, just down the street from Big Jim Herron. Larios allowed Agustin and Johnson to move in with her. This was during July.
In early 2007, before Lee was shot, Johnson began getting physically violent with Agustin, often because she refused to give him the keys to her Expedition. There were multiple incidents; they included him striking her with his fist and "busting" her nose, holding her head underwater in the bathtub, attempting to shoot her but having his gun jam, biting her hard enough to leave scars, dragging her by a belt around her neck, and threatening her with bodily harm and death. [FN32]
[FN32] Lee was not present on any of these occasions. Lee never threatened Agustin, and she was not afraid of him. Although she saw Johnson and Dixon with a gun, she never saw Lee with one.
Agustin and Johnson lived with Larios for slightly more than a month. During that time, their relationship was worse than it had been when they were living on Encina Street. They fought all the time, and on August 7, Agustin contacted a battered women's shelter. She was tired of the abuse and feared for her life, as Johnson had gone so far as to get his semiautomatic out of the closet and stick it in her mouth. [FN33] Agustin went to the shelter on August 7, and was in telephone contact with them for several days after, but they had no beds available.
[FN33] As far as Agustin saw, the black semiautomatic was the only gun Johnson had at this time. He kept it in a pillowcase in the closet, along with the mask that looked like a gas mask, a wig, and black clothing.
Early on August 9, Johnson received a telephone call. He subsequently told Agustin that he needed to take the car, and that something had happened. He did not go into any details, but was in a hurry. He left in Agustin's Expedition. Concerned, Agustin telephoned Lee and then Dixon. Each told her not to worry, and that he would get a hold of Johnson.
Several hours later, Johnson returned to the house in the Expedition. He told Agustin that Cuckoo's wife's cousin had gotten shot. Johnson related that the person had been shot in the face and several times in the chest on Cheatham Street, which was in the Country next to Reese Street. Johnson said that one of his "hom[ie]s" had seen the shooting take place, and that the shooter had been a Mexican male. Johnson related that he (Johnson) had contacted the shooter on his cell phone and asked him to meet somewhere so they could talk. When the individual refused, Johnson told him that Johnson was going to "get him where it hurt him the most." Johnson said that he and Dixon had found out where the individual's father lived, which was out in the bluffs, and they had gone in Agustin's car to that location. [FN34] When they were walking toward the house, a vehicle approached. The individuals in that car saw them and made eye contact, and Johnson and Dixon got scared and acted as if they were tying their shoes. When Agustin said she could not believe Johnson would do such a thing in her car, Johnson said he did not want to "do" her like that and have a shootout in her car, so he and Dixon left the area.
[FN34] Johnson did not say Lee was with them. Agustin assumed that by "the bluffs, " Johnson meant the area in northeast Bakersfield, by Bakersfield College and Panorama Drive.
On August 11, Johnson and Agustin were still living on Thoreson Court, and Agustin was still trying unsuccessfully to get into the battered women's shelter. That afternoon, the couple got into a physical altercation over Johnson taking Agustin's vehicle. Johnson eventually said Agustin could go with him, but, once she got into the driver's seat and he got in on the passenger side, he retrieved the black semiautomatic from between the passenger seat and the center console, and he pointed it at her. She got out of the vehicle and ran back into the house. He followed her in and told her to come on, and she went with him. He had the gun stuffed in his pants at the time.
The two ran an errand, then, near the intersection of Ming Avenue and Real Road, Johnson got into an argument with a lady driving a green Tahoe over who had cut off whom. Johnson got mad, pulled out the semiautomatic, and pointed it toward the lady. She immediately got on her cell phone, and Agustin feared that if she got the license plate number for Agustin's Expedition, it would lead the police to Agustin.
The lady and Johnson and Agustin went in different directions at the intersection. Johnson and Agustin ran several more errands, which included Johnson buying some Ecstasy pills and forcing Agustin to ingest one. They returned to Larios's house around 4:30 p.m., but Agustin was feeling the effects of the drug and drove alone to a market to purchase some beer. When she returned, she felt like someone was following her. She told Johnson and warned him to hide his gun. Agustin then returned to the market, contacted her ex-husband, and ended up spending the night at his house. She did not have any contact with Johnson the night of August 11.
On Sunday, August 12, Agustin checked her messages and learned Johnson had been looking for her and wondering why she never came home. She lied and told him that she had gone to a battered women's shelter. Johnson asked to see her, and she told him she could only get away from the shelter for a certain period of time.
At 8:00 p.m., Agustin arrived at Lee's house on Myrtle Street, and Johnson greeted her at her car. As they talked, Agustin heard a couple of noises. Johnson saw a vehicle approaching, and he grabbed Agustin's hand and said something had happened the night before. They then ran to the back of Lee's house. Lee and Dixon, who were by a tree in the front yard, also ran to the back. The vehicle that drove by was large, possibly a van or an SUV, and Johnson said he suspected the occupants were rival gang members.
After a few minutes, Agustin told Johnson she needed to get back to the shelter. She then left and returned to her ex-husband's house. She did not have further contact with Johnson that night, although while at Lee's house, she had made arrangements to pick Johnson up from Dixon's house on Monday morning to take him to an appointment with his public defender. Instead, at 8:00 a.m. on Monday, August 13, Agustin went to the shelter in person. She was in fear and desperate to get away. Again unable to get a bed and with nowhere else to go because her ex-husband did not want her coming back, she went to meet Johnson at his attorney's office.
After they left the office, Johnson said he wanted Agustin to see something. They went to the intersection at Planz and Real Road, where Johnson told Agustin to look up at the signal light and asked what she saw. When she said she saw a camera, he asked her what she thought it did. She said she did not know. She told him that the big square cameras in certain intersections took pictures if someone ran a red light, but that she did not know what this little camera did. She said it possibly recorded things, but she was not sure. He then got scared.
Johnson told Agustin that he had done a drive-by shooting at that intersection on Saturday night. He said Lee was driving, Dixon was in the front passenger seat, and Johnson was in the back seat. [FN35] Johnson said he saw someone walking on the sidewalk, and so he stuck his head out and fired twice, and he was concerned that if the camera was recording, the incident would have been caught on camera. Johnson said he and Agustin needed to get out of town, and that his plan was for them to go to Las Vegas. He said he had a friend and extended family there.
[FN35] Agustin never saw Lee driving a vehicle that was red, burgundy, cranberry, or maroon.
Johnson said he had some guns that he needed to sell so they could get some money. They then drove to a house in the 400 block of Eye Street. Agustin remained in the car; when Johnson came back a few minutes later, he said the individuals at the house had made him an acceptable offer of $400 and he needed to get the guns.
Johnson and Agustin then drove south on Eye Street to a set of apartments. Dixon, Lee, and Lee's young son were outside, and there were several women in the front yard. Johnson told Dixon and Lee to get in the car, because he had something to show them. Lee's son stayed behind; when Agustin asked, Lee said some friends lived there, and that his son was in good hands. Johnson then drove back to the intersection, pointed toward the pole, asked them if they had seen the camera and what they thought that camera did. They said they did not know. Johnson said that if the camera was actually recording, it would be bad because it would show that Lee was driving, the vehicle and the license plate, and that Dixon was in the front seat. Dixon responded that if it was going to show that, it was also going to show when Johnson put his head out of the window and started firing. Johnson then told them that he wanted to get out of town, and Dixon and Lee tried to discourage him from leaving.
Johnson said he had found someone to purchase the guns, and so they drove back to the house on Eye Street. There, the three men went inside. When they came back out a few minutes later, Johnson was excited because the people had actually raised the offer to $500. Johnson told Agustin that she needed to drive the three of them to the Country so that they could dig up the big gun. Johnson actually drove, and they went to the home of Lee's mother. There, Dixon retrieved a shovel, and they directed Agustin to drop them off at Watts and Lotus. She was then instructed to go to Larios's house and get packed and ready to move. Johnson told her to wait for a phone call to come back and pick them up. Agustin left all three of them standing in the middle of the intersection with one shovel.
About 15 minutes later, Agustin received a call from Johnson, telling her to come and get them. Only Johnson and Dixon were there. They went to a market on Casino Street, off Cottonwood Road, and Lee drove up in what looked like a white Explorer. Lee said it was his mother's car. They then all went to his mother's house. Johnson made some phone calls, trying unsuccessfully to sell the guns. Dixon called D-Keys to see if he was interested. Although D-Keys was out of town, Dixon told Johnson that D-Keys had asked Dixon to pay Johnson, and that D-Keys would reimburse Dixon when he returned. Dixon then handed Johnson $150 for the black semiautomatic. The last time Agustin saw that gun, Dixon had it. Johnson, Dixon, and Lee discussed how they had been unable to unbury the big gun, and Johnson instructed Lee to make sure he got rid of it.
Johnson and Agustin then went to the home of one of Johnson's friends to get directions to Las Vegas. By now, it was dark. They headed for Las Vegas that night, sleeping in a rest area outside of that city and arriving the next morning. They then went directly to a homeless shelter and then to the welfare department to apply for emergency food stamps. While there, Agustin was just staring off, but a woman in line apparently thought Agustin was staring at her, and said something. Johnson said something to the woman, then got angry at Agustin for making him "look bad" when Agustin refused to respond rudely to the woman. Johnson then decided he did not want to stay in Las Vegas, and demanded that Agustin take him home. She refused, and he eventually calmed down.
Johnson and Agustin did not return to the homeless shelter in time to get beds, but Johnson said he had enough money for them to be able to get a room. They spent the night of August 14 in a hotel. That evening, they walked to a couple of casinos. After they had both had some drinks, Johnson brought up the incident at the welfare office and chastised Agustin for her response. Eventually, he got up and started walking out of the hotel. He cursed at Agustin, threatened her, threatened to have his mother beat her up, and threatened to mess up her vehicle. Perhaps feeling the effect of the alcohol, Agustin got "a little bold" and told him that the last time he hit her was going to be the last time he hit her. She told him that if he hit her again, she would go to the police and tell them everything she knew about him. Johnson became extremely angry, and Agustin ran inside a McDonald's when he came toward her. She asked the assistant manager to call the police.
Agustin went to her car, but Johnson reached it just before she did. He threw a rock through one of the Expedition's windows. Agustin saw someone walking and asked to borrow his cell phone to call the police. Johnson started walking away, and Agustin called the police. She then waited with her vehicle, but, when no one came after what seemed like a long time, she drove it back to the hotel. By the time she reached her room and fell asleep inside, it possibly was after midnight of Wednesday, August 15.
Agustin was awakened by a knock at the door. Looking through the peephole, she saw someone who appeared to be the light homie. She stepped away from the door, frightened, then looked through the peephole again. This time, she saw Johnson. He asked her to let him in. She refused. She saw him walking toward the office, then he entered the motel room with the light homie. Johnson ran toward Agustin and struck her in the forehead with his fist right above the left eye. She started gushing blood, and he started to punch and kick her. He told his friend to get everything out of the room. Agustin begged the friend to get Johnson to stop.
Johnson got Agustin down onto the ground, then grabbed a pillow and began smothering her with it. At last, he let up. He told her that if he had his gun on him, he would kill her because she called the police. He then told her to get inside the bathtub. She obeyed. The last thing he said to her was that he was going to go back and kill her son. She believed he would do it.
When Agustin heard the door close, she called 911 and begged the Las Vegas police to call the Bakersfield Police Department and alert them to the threat Johnson had just made against her son's life. At first, the Las Vegas police did not take her seriously and accused her of being drunk. As she told the officer about the incidents in which Johnson had been involved, however, the officer's attitude toward her changed. A short time later, she was able to talk to Bakersfield Police Detective Burdick and tell him what had happened and what Johnson had told her.
Upon her return from Las Vegas to Bakersfield, Agustin lived in battered women's shelters. At some point, she agreed to testify if this case went to court. In September, she was placed in the Witness Relocation Program and remained there as of January 2009, when she testified at trial. Through the program, her rent was paid, and she was given $450 a month for her other expenses, by an investigator for the district attorney's office. In addition, in late August, the district attorney's office or law enforcement gave her money so she could return to Las Vegas and get her vehicle out of impound, as well as food and travel expenses. They also bought her a cell phone.
Prior to the Las Vegas incident, Agustin did not report any of the domestic violence to law enforcement, nor did she report any of the crimes Johnson had told her about committing. She continued to live with and support Johnson despite the various incidents, even after learning a pregnant woman had been killed. She left Bakersfield for Las Vegas because Johnson asked her to, and she wanted to be with him. She estimated that, between January and August, she spent thousands of dollars on Johnson. [FN36]
[FN36] Psychologist Michael Musacco testified concerning Battered Women's Syndrome (BWS), its cycle of violence, and its effects. He also discussed common symptoms of victims suffering from BWS, and why a battered woman would stay in an abusive relationship and not report the abuse to law enforcement. As defendants raise no issues concerning this testimony and the jury was instructed the testimony was not evidence Johnson committed any acts of violence, we do not summarize it further.
Dupree Jackson's Testimony
At the time of trial, Dupree Jackson, who testified under a grant of immunity, was imprisoned on a parole violation. For most of his life, he lived in the south part of Bakersfield known as the Country. When he was little, he often saw sales of rock cocaine going on in front of his home. He also saw guns and drive-by shootings. When he was around 13 years old, he began thinking about becoming a member of the Country Boy Crips. All his family was "from there, " and he did not see anything else to do. He hoped to make money selling drugs. Someone was not allowed to do that "in the hood" unless the person was in the gang.
Jackson was "jumped in" to the gang, meaning two people physically beat him, when he was not quite 14. The point of being "jumped in" is to show the person is not scared of anything, and to give that person more reputation. Reputation for being tough is important "in the hood." [FN37] Once in the gang, Jackson got to know other members. He had daily contact with them, and they would discuss their various activities. At the time, the Country Boy Crips were engaged in selling drugs, gangbanging, and "riding on the enemies, " meaning they would shoot at rival gang members. Older people in the gang were called big homies, which was the same thing as an OG, meaning someone who had been there for a long time and had "a lot of say-so over the hood." Younger gang members had a personal big homie, who looked out for the younger member and taught him things.
[FN37] Jackson explained that if a person grew up in the Country or spent a lot of time there, he was then Country automatically and did not really need to get jumped in. Jackson was familiar with Wingstone. It was off of Watts, in the Country.
(Jackson made a brief reference to the Country Girl Crips. Because we have no information concerning whether the practices of female gang members are the same as the practices of male gang members, we use only ...

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