California Court of Appeals, Fourth District, Second Division
from the Superior Court of San Bernardino County. No.
FVA900999, Steven A. Mapes, Judge.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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
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
were each charged with murder (Pen. Code, § 187, subd.
(a), count 1),  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)).
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
appealed their convictions and sentences: (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.
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.
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.
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.
Admission of Nikki's Preliminary Hearing
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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.
appeal, both defendants argue that the People did not employ
“due diligence” in efforts to secure Nikki's
attendance. We disagree.
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
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.
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