United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
was convicted in the Kern County Superior Court on March 20,
• 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),
• 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),
• 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),
• 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,
• 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,
• 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),
• 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.
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.
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.
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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
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
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
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
[FN6] A canal ran parallel to Monterey Street about a block
away. A traversable alleyway ran along both sides of the
All told, McGowan was struck three times in the back. He
suffered major abdominal injuries that necessitated multiple
surgeries. Taken together, his injuries were
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
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
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
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
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
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
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
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
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
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
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
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
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
[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
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
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
[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
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
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
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
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,
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
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
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
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
[FN19] Neither of these males was Dixon, who was not in the
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
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
[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
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
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
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
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
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
[FN23] Agustin's daughter heard one person call him
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
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
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] 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
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
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
[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
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
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
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
[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
[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
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
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
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
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
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
(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 ...