California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and
[As Modified on Denial of Rehearing
Cal.Rptr.3d 193] APPEAL from the Superior Court of San
Bernardino County. Steven A. Mapes, Judge. Affirmed with
directions. (Super.Ct.No. FVA900999)
P. Lampkin, Camarillo, under appointment by the Court of
Appeal, for Defendant and Appellant KeAndre Windfield.
M. Lathrop, Rolling Hills Estates, 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
RAMIREZ P. J.
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, 171 Cal.Rptr.3d 421,
324 P.3d 245, 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’ [257 Cal.Rptr.3d 194] 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 . On May 26, 2016, the
Supreme Court issued its decision in People v.
Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370
P.3d 1053 (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,
248 Cal.Rptr.3d 370, 442 P.3d 686, and People v.
Perez (2016) 3 Cal.App.5th 612, 619, 208 Cal.Rptr.3d 34.
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.
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.
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 [257 Cal.Rptr.3d 195] 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
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.
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 left.
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.
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.
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)).
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.
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 [257
Cal.Rptr.3d 197] 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, 171 Cal.Rptr.3d
421, 324 P.3d 245, directed modification of Johnson’s
presentence credits, and amendment of the abstracts of
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 (now at People v.
Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370
P.3d 1053). 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, 248
Cal.Rptr.3d 370, 442 P.3d 686 (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, 208 Cal.Rptr.3d 34
(Perez ). We vacated our opinion and now reconsider
it in light of Canizales and Perez.
ISSUES AND DISCUSSION
Admission of Nikki’s Preliminary Hearing Testimony
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, 89
Cal.Rptr.3d 264, 200 P.3d 879; People v. Cromer
(2001) 24 Cal.4th 889, 892, 893, 103 Cal.Rptr.2d 23, 15 P.3d
243 (Cromer ).)
Cal.Rptr.3d 198] a. Background
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, Murillo 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.
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 [257 Cal.Rptr.3d 199] 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
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
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 ...