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People v. Windfield

California Court of Appeals, Fourth District, Second Division

December 20, 2019

THE PEOPLE, Plaintiff and Respondent,
KEANDRE DION WINDFIELD et al., Defendants and Appellants.

          APPEAL from the Superior Court of San Bernardino County. No. FVA900999, Steven A. Mapes, Judge.

          David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Windfield.

          Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Harquan Johnson.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., William M. Wood, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.


          RAMIREZ P.J.

         Defendants Harquan Johnson and KeAndre Windfield were each convicted of one count of murder and one count of attempted murder, and assault with a semi-automatic firearm, along with gun discharge and gang enhancement allegations as to the murder and attempted murder counts. The charges arose from the shooting of two members of their own gang, the Ramona Blocc Hustlas, resulting in the death of one of them. Both were sentenced to prison for 90 years to life. They appealed raising various claims. In the original opinion, filed August 19, 2014, we affirmed the convictions for both defendants, but reversed Johnson's sentence pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354, because, as a juvenile at the time of the crime, his sentence of 90 years to life was the functional equivalent of a term of life without possibility of parole and we directed other modifications of the sentence and abstracts of judgment.

         On November 12, 2014, the California Supreme Court denied both defendants' petitions for review, but, on its own motion, issued a grant-and-hold of review as to defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re Bonilla, S214960, and People v. Franklin, S217699. On May 26, 2016, the Supreme Court issued its decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and retransferred this case to our court with directions to vacate our opinion and to reconsider Johnson's sentence in light of Franklin. We vacated the original opinion and issued our second opinion on September 28, 2016, affirming those portions of our original opinion pertaining to issues not subject to the grant and hold, and reconsidered Johnson's sentencing claim in light of Franklin.

         Defendants again petitioned for review. This time, the Supreme Court granted review, deferring further action pending consideration and disposition of a related issue in People v. Canizales, which was then pending in that court. Following the issuance of that opinion, the Supreme Court retransferred the cases back to this court with directions to vacate our opinion and to reconsider the cause in light of People v Canizales (2019) 7 Cal.5th 591, and People v. Perez (2016) 3 Cal.App.5th 612, 619. We do so now.


         Several months prior to June 2009, Marvin Moore and his best friend, Montoyea Smith went to a Ramona Blocc Hustlas (RBH) gang party. Smith got into a fight with two brothers, Quinn and Lamar Wise, who were also members of RBH, and were Moore's cousins. Defendant Windfield, also an RBH gang member, stepped in to help the Wise brothers, and blindsided Smith with a punch. Moore was not actively engaged in the fight, but he and others separated Smith from Windfield and the Wise brothers.

         On June 11, 2009, there was another RBH gathering at an apartment complex on East Jackson in Rialto. Ricky Peete was there with three female companions. After midnight, Smith, a longtime friend of Peete's, drove up. Later, Moore pulled up and approached Smith. Smith was drunk and brought up the fight that had taken place a few months earlier, expressing anger that Moore had not stepped in to help him. The two men argued for a while about how Moore had failed him. Smith pulled out a hand gun and cocked it, stating he wanted to shoot up the Ramona gang's neighborhood.

         After Smith displayed the gun, a van pulled up and parked across the street from where Smith and Moore were arguing. The driver was defendant Windfield's sister, Jontre Windfield (Jontre). Defendants Windfield and Johnson were in the van along with M.G. (the van's owner) and her children, and a two other RBH gang members. When the van parked, defendant Windfield got out and began to cross the street. When Smith saw Windfield, he started yelling that Windfield had jumped him and pointed his gun at Windfield. Windfield walked at a fast pace back toward the van, as defendant Johnson got out of the vehicle. Smith chased both defendants around the van until the defendants ran away through an alley.

         Jontre and M.G. exited the van and Jontre yelled at Smith that there were women and a child in the van. Smith pointed the gun in her face. Moore and Peete intervened, restraining Smith, and the women got back into the van and drove away as Smith walked back across the street. Jontre and M.G. then picked up the defendants and another of the men who had left through the alley. As she drove back to the apartment on East Ramona Drive, where she and the defendants lived, Jontre told defendants that Smith had pointed his gun at her and stated several times that Smith had to die. Windfield was angry at being chased away by Smith and said Smith had to be taken care of that night. After the van left East Jackson, Smith put his handgun in his car and calmed down.

         Minutes later, when the van arrived at the Ramona Drive residence, everyone went inside except defendants. Johnson and Windfield each retrieved a firearm, took the keys to the van from its owner, M.G., and left, after Windfield said that they were returning to East Jackson.

         Meanwhile, at the East Jackson apartment building, the police arrived in response to a call about a fight, so Moore told Smith to put his gun away. The people who were out on the street scattered at the arrival of police, leaving Moore and Nikki R. (Nikki), outside. Moore and Nikki told police that the people involved in the fight had dispersed, so the officers drove away. Smith then returned to the street where Moore talked to him for about five minutes before driving away. Then Peete came out and talked to Smith.

         While Peete and Smith were talking, Nikki heard the gate at the back of the building slam and went to investigate. She saw defendants Windfield and Johnson in the courtyard with guns and she told them they should leave, but they declined. Nikki walked back towards the front of the building while the defendants stayed in the back. Nikki told Peete what she had seen, but not Smith. When Smith started walking toward the back, Nikki and Peete tried to stop him, telling him to go home, but Smith said he needed to get his marijuana from the back. Peete went with him and they walked shoulder to shoulder.

         As Smith pushed past Nikki and Peete, defendants stepped forward and began firing rapidly. Peete and Smith turned and stumbled into each other, and both fell. Peete was hit in the leg and Smith fell on top of him, bleeding from his midsection. As Peete and Smith lay on the ground, defendant Windfield stood over them, placed his gun to Smith's head, and fired a final shot. Then the defendants left.

         After the defendants left, Peete, who had been shot once in the leg, got up, and left in the car that Jontre had lent him earlier. Nikki ran into the East Jackson apartment and told those present that defendants had run from the alley into the apartment courtyard and shot Smith. Moore left the East Jackson Street apartment complex and drove to the Windfields' Ramona Drive residence to apologize to Windfield for Smith's behavior. Windfield said Smith was dead, and that “he had to go.” However, Windfield told Moore that it was Johnson who shot Smith, not him. Moore left.

         M.G. was at the Ramona Drive apartment when the defendant's returned, approximately one-half hour after they had left with the firearms. Johnson asked M.G. to go to the Hustla Squad hood to drop his clothes off there, in order to implicate the Hustla Squad in the shooting.[1]

         Afterwards, Windfield and Johnson discussed the shooting in the living room. Windfield said he shot all his bullets at Smith, and Johnson demonstrated how he walked over to Smith after he fell to the ground and shot him in his chest and face, holding the gun in both hands. During this conversation, Jontre got a call from Peete who told her he had been shot. Peete arrived at the apartment shortly after the call, limping and bleeding. Jontre drove Peete first to his mother's house and then to the hospital. During the drive to Peete's mother's house, Jontre said Smith had to die for putting the gun in her face.

         The next day, at the Ramona Drive apartment, M.G. saw Windfield with Peete, who was on crutches, outside the apartment. Windfield told Peete they had not intended to shoot him. Back inside the apartment, Windfield told M.G. “he [Smith] had to go, ” because he had Windfield running like a “bitch.”

         Smith had been hit by at least 10 shots, six of which would have been fatal individually, including a shot fired approximately one-half inch from Smith's head. The cause of death was multiple gunshot wounds. Six bullets were recovered from Smith's body, all consistent with.25 caliber bullets. Peete had one bullet wound on the inside of his right calf. A criminalist who processed the scene hours after the shooting recovered seven.25 caliber casings and one nine millimeter casing.

         Defendants were each charged with murder (Pen. Code, § 187, subd. (a), count 1), [2] attempted premeditated and deliberate murder (§§ 664, 187(a), count 2), and assault with a semiautomatic firearm (§ 245, subd. (b), count 3). It was further alleged that in the commission of counts 1 and 2, each defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d)), and that as to both defendants a principal personally and intentionally discharged a firearm which proximately caused death (§ 12022.53, subds. (d) & (e)(1)), as well as an allegation that the murder and attempted murder were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). It was further alleged that in the commission of count 3, the defendants committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)).

         Following a trial by jury, defendants were convicted of all three counts. The jury set the degree of the murder count respecting Smith at first degree, and found the attempted murder of Peete was premeditated and deliberate. The jury found the defendants had personally used and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and that a principal personally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). As to both counts 1 and 2, the jury found that defendants committed them for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also convicted defendants of count 3, assault with a semiautomatic firearm (§ 245, subd. (b)), during which they personally used a firearm (§ 12022.5, subd. (a)) and which they committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). The defendants were each sentenced to aggregate indeterminate terms of 90 years to life on counts 1 and 2, while the term on count 3 was stayed pursuant to section 654.

         Defendants appealed their convictions and sentences:[3] (1) that the admission of the preliminary hearing testimony of Nikki impinged on their rights to confrontation; (2) that their sentences were cruel and unusual given their youth; (3) the evidence of specific intent to kill was insufficient to support the conviction for attempted murder on count 2 based on a “kill zone” theory; (4) the court erred in failing to instruct the jury that provocation could reduce the attempted premeditated murder to attempted murder; (5) the firearm use and discharge allegations must be stricken as to count 2 because the amended information omitted such enhancements; (6) clerical errors on the abstract of judgment required amendment. Separately, Johnson argues that (a) the court failed to pronounce sentence; and (b) he was entitled to additional presentence custody credits.

         Following the first appeal, we affirmed the substantive convictions as to both defendants, but we directed the trial court to strike the allegation that a principal used and discharged a firearm as to count 2, affirmed the sentence as to Windfield, who was 18 at the time of the crimes, but ordered resentencing on Johnson, who was under the age of 18, pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354, directed modification of Johnson's presentence credits, and amendment of the abstracts of judgment.

         Defendants petitioned for review but their petitions were denied. However, on the Supreme Court's own motion as to Johnson, the Supreme Court granted review but deferred briefing pending consideration and disposition of a related issue in In re Alatriste, S214652, In re Bonilla, S214960, and People v. Franklin, S217699 (now at People v. Franklin (2016) 63 Cal.4th 261). After the decision in Franklin was filed, the matter as to Johnson was returned to us with directions to vacate our decision and reconsider the cause in light of Franklin. On September 28, 2016, we published our second opinion, republishing the portions of the opinion unaffected by the grant of review, but affirming in part and reversing in part as to Johnson. Both defendants again petitioned for review.[4]

         On January 11, 2017, the California Supreme Court granted the second set of petitions for review, but deferred further action pending consideration and disposition of the related issue in People v. Canizales, S221958 (now at People v. Canizales (2019) 7 Cal.5th 591 (Canizales)). Following the issuance of the decision in Canizales, the Supreme Court has retransferred the matter to us with directions to vacate our decision and reconsider the cause in light of Canizales, supra, and People v. Perez (2016) 3 Cal.App.5th 612, 619 (Perez). We vacated our opinion and now reconsider it in light of Canizales and Perez.

         Issues and Discussion

         1. Admission of Nikki's Preliminary Hearing Testimony

         Both defendants argue that the court erred in admitting the audio and video recording of the preliminary hearing testimony of Nikki because the People failed to demonstrate she was unavailable, and failed to exercise due diligence to secure her attendance. We disagree.

         We determine de novo whether due diligence was demonstrated. (People v. Bunyard (2009) 45 Cal.4th 836, 851; People v. Cromer (2001) 24 Cal.4th 889, 892, 893 (Cromer).)

         a. Background

         After testifying at the preliminary hearing, Nikki moved out of state in October 2009, with financial assistance provided by the district attorney's office. She provided her address to a district attorney investigator, Christine Murillo, who spoke to Nikki by phone to confirm she had arrived safely. The investigator did not recontact Nikki until 2010.

         In October 2010, Murillo checked various automated databases in both California and the state to which Nikki had moved and found no new information. Murillo contacted an investigator for the prosecutor's office in the state where Nikki had relocated to request follow-ups on all the addresses found. The investigator for the out-of-state jurisdiction checked every address that had been found for the next two to three weeks. Nikki had not been living at her last known address for 30 days before contact was made with the manager at the apartment complex where she had lived.

         The investigator for the local prosecutor's office in the state to which Nikki had relocated checked with Nikki's relatives in that area; however, they had not seen or heard from Nikki for several weeks. That investigator for the local prosecutor's office went to the social service agency that provided money to Nikki while she was living in the place where she had relocated and was informed that she had failed to appear for her last couple of appointments with the agency to pick up funds it had for her.

         In November 2010, Murrillo called Nikki's friend, Jasmine, who said that she had heard from Nikki three weeks before, but had no way to contact Nikki. Murillo contacted Jasmine a second time a few weeks later, but Jasmine reported that she had not heard from Nikki and had no contact information for her. Jasmine, again, told the investigator that she would have Nikki call the investigator if Nikki contacted her. Murillo also called Detective Williams, the case agent, in November 2010, and asked him to contact her if he heard anything on the street about Nikki's whereabouts. In January, April, and May 2011, Murillo reran Nikki through the available automated systems in California and the state to which Nikki had relocated.

         Detective Williams had not tried to stay in contact with Nikki after she relocated, following the October 2009 preliminary hearing, but the prosecutor asked him to locate Nikki in the fall of 2010. Starting in September 2010, and for more than three months, he spoke to 50 or 60 people in Rialto and surrounding communities who may have known Nikki. Information from these people led the case agent to believe that Nikki might be local, so he notified the agencies in the areas surrounding Rialto and he talked to family members, all of whom denied knowing her whereabouts.

         Within six or seven months before the hearing, the case agent searched all the places in San Bernardino and Riverside Counties where people said Nikki would reside or frequent on a regular basis. Six months before the hearing, the case agent contacted one of Nikki's aunts, but got no information. On and off since January 2011, the case agent had checked the Web site, Accurint, and Nikki's name came up at several locations linked to family members. Williams and another detective conducted stakeouts at those locations several times to see if they could determine Nikki's whereabouts. From three months before the hearing, Williams tried just about every day to contact Nikki by telephone and by contacting law enforcement agencies.

         Approximately two months before the hearing, Williams put Nikki's information into the C.I.I. database, with a flyer, so that if she were stopped by the police, the officer who stopped her would have the information that Rialto Police Department should be contacted. The flyer was still active at the time of the hearing. Within the last two weeks before the hearing, Williams visited another of Nikki's aunts and contacted several other family members who lived locally. The aunt dialed a phone number for Nikki's mother and sister, who lived out of state, and Williams spoke to them in the presence of the aunt. After speaking with the aunt and the mother, Williams located information leading him to the apartment complex where they resided. Williams had the local police go there, but learned Nikki had moved within the previous month.

         However, the local police did learn that Nikki had been in a vehicle that had been ticketed. Williams checked the license number of that vehicle, and tracked it to a different state. Two weeks before the hearing, Williams asked that state's local law enforcement go the address of the registered owner of the car, but the owner claimed not to know Nikki. The trial court ultimately found the case agent's testimony to be credible.

         The prosecutor explained its failure to contact Nikki between the time of her relocation and October 2010 was due to its belief they were on good terms with her and she had no criminal convictions then or at the time of trial. Because Nikki was in a place where she was surrounded by family members, the prosecutor believed her office would be able to contact Nikki.

         The trial court found that Nikki was a critical witness, the only eyewitness to the crime. It noted that her testimony had been videotaped, as was common in gang cases, so it could be seen and heard, rather than merely read. The court concluded that the prosecution had established due diligence and permitted the People to play the videotape to the jury.

         b. Discussion

         On appeal, both defendants argue that the People did not employ “due diligence” in efforts to secure Nikki's attendance. We disagree.

         Under both the federal and state Constitutions a criminal defendant is guaranteed the right to be confronted with the witnesses against him. (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S 400, 403-405 [13 L.Ed.2d 923, 85 S.Ct. 1065] [confrontation clause is applicable to the states].) “If a witness is unavailable at trial and has given testimony at a previous court proceeding against the same defendant at which the defendant had the opportunity to cross-examine the witness, the previous testimony may be admitted at trial”. (People v. Sánchez (2016) 63 Cal.4th 411, 440.) Prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine and if the government has established the unavailability of the witness. (Crawford v. Washington (2004) 541 U.S. 36, 57, 59 [158 L.Ed.2d 177, 124 S.Ct. 1354], citing Mattox v. United States (1895) 156 U.S. 237, 244 [39 L.Ed. 409');">39 L.Ed. 409, 15 S.Ct. 337].)

         In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and that it made a “good-faith effort” (Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 88 S.Ct. 1318]), or, in the alternative, exercised reasonable or due diligence to obtain the witness's presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892.) In this state, the exception to the confrontation right for prior recorded testimony is codified in Evidence Code, section 1291, subdivision (a), which provides, in part, that former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the party against whom the former testimony is offered was a party to the action or proceeding and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

         Evidence Code section 240 governs unavailability of a witness. In part, that section provides that the term “unavailable as a witness, ” means “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or ...

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