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People v. Jones

Supreme Court of California

July 20, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
KIONGOZI JONES, Defendant and Appellant.

         Superior Court, Los Angeles County No. NA031990-01, Bradford L. Andrews Judge

          Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jessica K. McGuire, Assistant State Public Defender, and Ellen J. Eggers, Deputy State Public Defender, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

          Kruger, J.

         A jury found defendant Kiongozi Jones guilty of two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189), [1] one count of attempted murder (§§ 187, subd. (a), 664), one count of assault with a firearm (§ 245, subd. (a)(2)), and one count of shooting at an inhabited dwelling (§ 246). The jury found true allegations that defendant had personally used a firearm (all counts; §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)); that the attempted murder had been willful, deliberate, and premeditated (§§ 189, 664, subd. (a)); that defendant, in committing attempted murder, had personally inflicted great bodily injury upon a human being (§ 12022.7, subd. (a)); and that defendant had previously been convicted of robbery (all counts; §§ 211, 667, subd. (a)(1), 667.5, subd. (b)). The jury also found true the special circumstance allegation that defendant had been convicted of multiple murders in the same proceeding. (§ 190.2, subd. (a)(3).) The jury fixed the penalty at death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

         I. Background

         In the span of a few minutes on the evening of December 6, 1996, four people - Mario Lopez, his sister Veronica Munguia, Angel Villa, and Nery Hernandez - were shot in the vicinity of an apartment building located at 1700 Pacific Avenue, in Long Beach. Lopez was shot twice outside of the ground-floor apartment where Munguia and another sister lived. Munguia was hit in the knee by a bullet that entered the apartment. Villa was riding a bicycle near the intersection of 16th Street and the alley behind the apartment building, when a man grabbed him by the neck and shot him in the head. The shooter then proceeded in the direction of Pine Avenue, where a car was backing out of a driveway. The shooter approached the car and shot the driver, Hernandez, in the chest. Lopez and Villa died, but Munguia and Hernandez survived.

         Two police officers received a call regarding the shooting at 1700 Pacific Avenue and were told that two male African-American suspects were seen running toward Pine Avenue. The officers stopped by 1708 Pine Avenue, which was near the crime scene and was a known hangout for members of the Crips gang. The officers spoke to defendant and Melvin Sherman, among others. A few days later, the police arrested defendant and Sherman, and the prosecution charged them with crimes pertaining to these events.

         A. Defendant's First Trial

         Defendant and Sherman were initially charged jointly with two counts of murder (Lopez and Villa) and two counts of attempted murder (Munguia and Hernandez). Lengthy pretrial proceedings not relevant to the issues presented on appeal resulted in dismissal of these charges. Defendant was then charged separately with, pleaded not guilty to, and was held for trial on two counts of murder (Lopez and Villa), one count of attempted murder (Hernandez), one count of assault with a firearm (Munguia), and one count of shooting at an inhabited dwelling. After Sherman was held to answer on related charges, the prosecution moved to consolidate defendant's case with Sherman's. The trial court denied this motion. Defendant's trial occurred in January 1998. The jury deadlocked and the court declared a mistrial.

         B. Defendant's Second Trial

         After defendant's first trial, the trial court granted the prosecution's motion to consolidate defendant's case with Sherman's. The prosecution filed an amended information charging Sherman individually with one count of conspiracy to commit murder and defendant and Sherman jointly with two counts of murder (Lopez and Villa), one count of attempted murder (Hernandez), one count of assault with a firearm (Munguia), and one count of shooting at an inhabited dwelling. The prosecution sought the death penalty for defendant but not for Sherman. (Unless otherwise specified, all facts and analysis relate to defendant's second trial.)

         1. Guilt Phase

         The prosecution presented evidence showing that the shootings were part of an escalating gang war, with two African-American gangs, the Insane Crips and the Rolling 20's Crips, on one side, and a Hispanic gang, the Eastside Longos, on the other. Defendant “had been beaten up by someone just described as a Mexican, ” and the prosecution argued that the shootings were “payback of sorts.” Defendant and Sherman spent part of the evening of December 6, 1996, at 1708 Pine Avenue, apartment 4. Within a span of about five minutes, they left the apartment, shot the victims, and returned. The prosecution contended that defendant was the shooter, and Sherman aided and abetted him. Defense counsel took the position that “[t]he sole issue in this case is identification, ” and, accordingly, principally sought to undermine witnesses' identifications of defendant as a perpetrator.

         a. Prosecution Case

         i. Background Gang Evidence

         Detective Victor Thrash of the Long Beach Police Department testified that the Rolling 20's Crips and the Eastside Longos claimed the area around 1700 Pacific Avenue and 1708 Pine Avenue as their turf, and there was a “black-brown war that was going on within that specific area.” Officer Freaman Potter of the Long Beach Police Department, a gang expert, gave general background about gangs and gang culture. He testified that the Insane Crips and the Rolling 20's Crips, two African-American gangs, and the Eastside Longos, a Hispanic gang, were among the largest and most violent gangs in Long Beach. He testified that he recognized defendant as a member of the Rolling 20's Crips and explained the significance of defendant's tattoos, which appeared to be related to the Rolling 20's Crips. Officer Potter said that if a member of the Rolling 20's Crips were “beaten down physically by a Hispanic gang member, ” he would have to respond or “the rest of the gang members would view [him] as weak.”

         Officer John Stolpe, Officer Michael Schaich, and Detective Steven Lasiter, all of the Long Beach Police Department, testified that they each separately had contact with defendant in April or May 1990 and, on those occasions, defendant told each of them that he was a member of the Rolling 20's Crips. Defendant told Officer Stolpe that he used the moniker “Swoop.” Defendant told Officer Schaich that he used the moniker “Key Loc.” And defendant told Detective Lasiter that he used the moniker “Chicken Swoop.” Defendant had the words “Little 20 Swoop” tattooed on the inside of his right forearm. Officer Potter testified that that “could be his gang name.”

         Officer Erik Herzog of the Long Beach Police Department testified that he spoke to Rosalind Gilyard, Sherman's mother, a week after the shootings. According to Gilyard, Sherman said he could not come to her neighborhood because there were a lot of Hispanic gangs, and he was a member of the Rolling 20's Crips. Gilyard testified that she told Officer Herzog that Sherman was a member of the Rolling 20's Crips, but she thought “he was younger when he was involved in that.” Sherman showed the jury his tattoos - a “2” on the back of his left arm and a “0” on the back of his right arm.

         ii. Lopez and Munguia Shootings

         (a) Amber Gutierrez

         Amber Gutierrez was at 1700 Pacific Avenue, visiting the apartment where Lopez's sisters lived, on the evening of December 6, 1996. A group of people had gathered at the apartment. Gutierrez was a member of the Eastside Longos, but she did not think anyone else at the apartment was a member. She was on the couch, talking on the telephone, and a man walked by the front door toward the alley; she heard him talk to somebody else but could not hear what they were saying. Lopez walked outside, and Anna Granillo, one of his sisters, entered the apartment. Right after that, Lopez was shot; he stumbled inside the apartment and fell down. Other bullets entered the apartment; one struck a balloon and another struck Munguia, who had entered the living room to get her daughter after she heard the shots. Gutierrez identified Sherman as the man who had walked by the front door. She saw a glove and a gun, but she did not see the face of the person who fired the shots. Although Gutierrez had seen defendant in the neighborhood, and he had previously “yell[ed] gang stuff” at her and her friends, she did not see defendant that evening.

         (b) Veronica Munguia

         Veronica Munguia, one of Lopez's sisters, lived in an apartment at 1700 Pacific Avenue, and was home on the evening of December 6, 1996. She knew members of the Eastside Longos. Munguia was in the bedroom of the apartment when Granillo entered the bedroom; shots were fired shortly thereafter. Munguia ran into the living room to get her daughter; Lopez, who had been shot, pushed her daughter toward her. Munguia was hit in the knee by a bullet that came through the wall, and she ran back into the bedroom. Lopez collapsed in the hallway of the apartment after being shot. Munguia did not see who did the shooting.

         (c) Anna Granillo

         Anna Granillo, Lopez and Munguia's sister, lived with Munguia at 1700 Pacific Avenue, and was home on the evening of December 6, 1996. That day, she had made several trips between the apartment and a nearby laundry room, doing laundry and returning to the apartment to fold and hang up clothes. On her last trip from the laundry room, around 7:00 p.m., she saw Lopez outside the apartment and two men by the alley. She told Lopez to “ ‘watch out' ” and walked into the apartment with her laundry, “and that's when they started shooting.” She identified defendant and Sherman as the men she saw by the alley before the shooting began, but she did not see the shooting.

         iii. Villa and Hernandez Shootings

         (a) Maria Jaramillo

         Maria Jaramillo was at home at 126 West 16th Street on the evening of December 6, 1996. She was outside playing with her nephews when she heard gunshots. She took her nephews inside, then went back outside. She observed a man, whom she identified as defendant, walk out of an alleyway in the direction of Pine Avenue. Another man went by on a bicycle from the direction of Pacific Avenue; defendant grabbed him by the neck and shot him in the head. She saw defendant proceed toward a car that was backing out of a driveway; she went back inside, heard more shots, went outside, and saw the two victims of the shootings, Villa and Hernandez.

         (b) Nery Hernandez

         Nery Hernandez testified that he lived at 1601 Pine Avenue, and was leaving his house with his family shortly before 7:00 p.m. on December 6, 1996. He backed his car out of his driveway and got out to close the gate. He saw a Hispanic man on a bike and an African-American man, whom he identified as defendant, about 10 or 15 feet away; they looked like they were arguing. He saw defendant point a gun at the Hispanic man, and he heard one or two shots. He got back into the car and tried to leave, but could not because there was a car behind him; when he turned back around, defendant was standing in front of the car, pointing a gun at him. Defendant fired, and Hernandez was struck in the chest. Hernandez saw defendant run toward Pine Avenue.

         iv. Subsequent Investigation

         Officer Peter Anderson of the Long Beach Police Department testified that he and his partner, Officer Ernie Kohagura, responded to a report of a shooting at 1700 Pacific Avenue, shortly before 7:00 p.m. on December 6, 1996. The radio dispatch stated that two male African-American suspects had been seen running eastbound toward Pine Avenue. Because other officers had secured the crime scene, and believing the shooting may have been gang related, Officers Anderson and Kohagura went to 1708 Pine Avenue, a nearby hangout for members of the Crips. Defendant was standing outside the front door of apartment 4. After defendant saw the officers, who were in uniform, he quickly turned and went inside the apartment. The officers went to the apartment, conducted a protective sweep, spoke to the occupants, and filled out field identification cards on defendant and Sherman. Officer Kohagura testified and gave a similar account.

         Detective William Collette of the Long Beach Police Department, one of the lead investigators, testified regarding the crime scenes, the locations of the victims, and the collection of shell casings that were found.

         Detective Thrash testified that he interviewed Leslie Rainey, a friend of defendant's and Sherman's, a week after the shootings. Rainey used the nicknames “Swoop” and “Baby Troub” when referring to defendant and Sherman, respectively. He said that he was at 1708 Pine Avenue, apartment 4, with defendant, Sherman, and four women on the evening of December 6, 1996. Rainey told Detective Thrash that defendant and Sherman had left for about five minutes and returned together, and defendant had said “ ‘something must have happened out there outside because there are a lot of police.' ” Rainey also said “Swoop [defendant] was mad cause he was beat down... by a Mexican earlier that week.”

         Rainey also testified that he was at 1708 Pine Avenue, apartment 4, with defendant, Sherman, and four women on the evening of December 6, 1996. They were planning to watch the television show Martin, which played at 6:00 p.m. and 6:30 p.m. Defendant stepped just outside the apartment for about five minutes and came back inside to watch the show. The broadcast of Martin was interrupted by news of the shootings. Officers Kohagura and Anderson showed up to talk to them about the shootings, and Rainey was interviewed a week later by detectives. Rainey denied ever having told the police that defendant and Sherman left together for five minutes. He also denied telling Detective Thrash that defendant had said “ ‘he had a fight with some Mexicans.' ”

         Detective Craig Remine of the Long Beach Police Department, one of the detectives assigned to the case, testified that he checked the distance between the scenes of the shootings. He said it took him about 55 seconds to walk the distance between the three locations and about 30 seconds to jog it.

         Dale Higashi, a senior criminalist with the Los Angeles County Sheriff's Department, testified that he examined eight.40-caliber shell casings that were collected from the scenes of the shootings. In his opinion, all of the shell casings came from the same semiautomatic pistol. He neither possessed nor examined the pistol from which the bullets were fired.

         Dr. Suko Jack Whang, a deputy medical examiner with the Los Angeles County Coroner's Office, testified that Lopez had been struck by two bullets. One of the bullets struck Lopez in the chest and lacerated his heart, killing him.

         Dr. Thomas Gill, a forensic pathologist with the Los Angeles County Coroner's Office, testified that Villa died of a gunshot to the right eye, which entered the brain.

         b. Defense Case

         i. Gregory Sinsun

         Gregory Sinsun testified that he was with Granillo and others in the bedroom of the apartment at 1700 Pacific Avenue on the evening of December 6, 1996. Granillo was in his presence during the shooting, and he did not see her moving her laundry around at that time.

         ii. Officer William Jarman

         Officer William Jarman of the Long Beach Police Department testified that he interviewed Granillo on the night of December 6, 1996. Granillo told Officer Jarman that she was in the bedroom of the apartment, “heard several loud gunshots, ” “dropped to the floor, ” and “never left that bedroom.” Officer Jarman also interviewed Sinsun the same night, and he said he was in the bedroom with Granillo that night, “heard several loud shots and dropped to the ground and never left the bedroom.”

         iii. Robert Elder

         Robert Elder was unavailable to testify at defendant's second trial, and the trial court permitted defendant to introduce the testimony Elder gave during defendant's first trial. Elder was Hernandez's upstairs neighbor, and he was at home on the evening of December 6, 1996. He heard three gunshots and went to a window, where he saw a stocky man with a large afro shooting down the street with a “long gun, ” “a.45, ” “like Clint Eastwood had.” The man walked down 16th Street toward Pine Avenue, got into a car with two other people, and drove off. Elder did not see the man's face, and from his vantage point, he could not see the shooting victims. After the man left, Elder went outside and saw that Villa and Hernandez had been shot. Elder further stated that he did not recognize defendant from a photo lineup that defense counsel had previously shown him.

         c. Jury Verdict

         On July 31, 1998, the jury found defendant guilty of two counts of first degree murder (Lopez, count 2; Villa, count 3; §§ 187, subd. (a), 189), one count of attempted murder (Hernandez, count 4; §§ 187, subd. (a), 664), one count of assault with a firearm (Munguia, count 5; § 245, subd. (a)(2)), and one count of shooting at an inhabited dwelling (count 6; § 246). With respect to each count, the jury found true the allegation that defendant had personally used a firearm. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) With respect to count 4, the jury found true allegations that the offense had been willful, deliberate, and premeditated (§§ 189, 664, subd. (a)) and that defendant had personally inflicted great bodily injury upon a human being (§ 12022.7, subd. (a)). With respect to counts 5 and 6, the jury found not true the allegation that defendant had personally inflicted great bodily injury upon a human being. (Ibid.) Finally, the jury found true the special circumstance allegation that defendant had been convicted of at least one count of first degree murder and one or more counts of first or second degree murder in the same proceeding (i.e., the multiple-murder special circumstance). (§ 190.2, subd. (a)(3).)[2]

         2. Penalty Phase

         a. Aggravating Evidence

         During the penalty phase, the prosecution introduced evidence that defendant had been involved in six prior uncharged criminal incidents: (1) the April 1990 attempted murder of Matthew Ferguson and Quincy Sanders; (2) carrying a concealed weapon, a loaded revolver, in June 1990; (3) the June 1990 robbery of Sarom Sao at gunpoint; (4) the August 1990 murder of Carl Milling; (5) the May 1991 attempted murder and assault with a firearm of Artis Lisby; (6) and the September 1991 murder of Ronald Broussard. The prosecution also introduced evidence that defendant had pleaded guilty in 1992 to the robbery of Charles Loch, for which he received a three-year prison sentence.

         The prosecution also presented victim impact evidence. Anna Munguia, Lopez's mother, went to the hospital with Lopez after he was shot and was there when he died. She testified that Lopez's death “hurts a lot.” He “got along with everybody” and was not involved in gangs like his brothers. Margarita Rodriguez, Villa's widow and the mother of his children, identified Villa's body after he was killed. She testified that he was a “very good” person, and Villa's death affected their four children “a lot.” Inez Villa Uriarte, Villa's sister, testified that Villa was the best of her brothers and was a loving father. She helped to take care of Villa's children after his death. The children were very affected by the loss of their father.

         b. Mitigating Evidence

         Defendant presented testimony from 13 witnesses as mitigating evidence. They testified that defendant's father had drug and alcohol problems, which “messed [defendant] up” and caused defendant to lose respect for his father. Defendant was raised mostly by his mother and grandmother, who took good care of him, but his father was also around until defendant was in high school. Defendant is the youngest of seven children, and most of his siblings had spent significant time in prison. Defendant was not a disobedient child, but “went the wrong place at the wrong time” and spent some time in prison. Defendant was a kind, respectful, fun-loving person and a good father to his four children, and he was trying to get his life together. Several witnesses were unaware of defendant's gang membership. Not long before the shootings, defendant sought employment with a community outreach program that hired former gang members and tried to prevent gang violence. An employee of that organization believed defendant was no longer an active gang member.

         c. Jury Verdict

         On August 13, 1998, the jury fixed the penalty at death. At the same time, the jury also found true the allegation that defendant had been previously convicted of robbery, a sentencing enhancement that had been bifurcated from the guilt phase. (§§ 211, 667, subd. (a)(1), 667.5, subd. (b).)

         3. Posttrial Proceedings

         Defendant filed a motion for a new trial, claiming, among other things, insufficiency of the evidence, prosecutorial misconduct, and ineffective assistance of counsel, which the trial court denied. The trial court also denied the automatic motion to modify the verdict (§ ...


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