59 Cal.App.5th 496
Cal. Ct. App.2021Background
- In June 2009 two Ramona Blocc Hustlas (RBH) members (Smith and Peete) were shot after a prior fight; Smith died of multiple close-range gunshot wounds and Peete was wounded.
- Defendants KeAndre Windfield (18 at offense) and Harquan Johnson (17 at offense) — both RBH members — retrieved firearms, returned to the scene, and fired multiple shots; eyewitness Nikki gave preliminary hearing testimony (videotaped); M.G. corroborated admissions by defendants.
- Charged with first-degree murder, attempted premeditated murder, and assault with a semiautomatic firearm; multiple firearm-discharge enhancements (§ 12022.53) and gang enhancements (§ 186.22) alleged; both convicted and each sentenced to aggregate terms of 90 years to life.
- Defendants appealed on multiple grounds: admissibility of Nikki’s preliminary hearing testimony (Confrontation Clause/due diligence), sufficiency under the "kill zone" theory for attempted murder, failure to instruct on provocation, defects in enhancement pleading, and Eighth Amendment (youthful offender) challenges to sentencing.
- Court affirmed convictions; held Nikki’s recorded preliminary testimony admissible (due diligence shown); upheld kill-zone-based attempted-murder finding under Canizales; rejected duty to give provocation instruction sua sponte and IAC claim; resolved enhancement pleading issue against defendants but directed remand to permit trial court discretion under Senate Bill No. 620 to strike/dismiss enhancements.
- Disposition: convictions affirmed; remands ordered — for Johnson: limited juvenile transfer hearing (Prop 57/Vela) and a youth-record hearing (Franklin) before sentencing decisions; for both defendants: remand to permit the sentencing court to consider striking firearm enhancements under SB 620; clerical corrections (dates, one day custody credit) ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Nikki's preliminary hearing testimony (Confrontation Clause/due diligence) | Prosecutor exercised due diligence to locate Nikki; she was unavailable and prior cross-examination occurred | People failed to exercise due diligence; videotaped testimony inadmissible | Admission proper: court found due diligence and unavailability; any error harmless given corroborating evidence and videotaped testimony viewable by jury |
| Sufficiency of attempted-murder intent under "kill zone" theory | Evidence (multiple close-range shots from semiautomatics at two people in close proximity) supports inference of intent to kill everyone in zone | Defs argue shots were targeted only at Smith; no zone-of-fatal-harm proof | Upheld: under Canizales the evidence supported a kill-zone inference and specific intent to kill Peete as within zone |
| Failure to instruct on provocation (sua sponte) for attempted murder | Prosecutor: no sua sponte duty to give CALCRIM 522; trial court correct | Defs: provocation instruction required or counsel ineffective for not requesting one | No error: no sua sponte duty per controlling precedent; no IAC because no evidentiary basis for provocation instruction |
| Firearm enhancements as to attempted murder (pleading/amendment) | First amended information and jury instructions adequately alleged enhancements; interlineations corrected victim name | Defs: third amended information mislabeled victim so enhancements for count 2 were not properly alleged | Held for People: parties, court, and jury treated enhancements as charged; defendants forfeited challenge by not augmenting record; trial court may still exercise discretion to strike under SB 620 |
| Windfield's Eighth Amendment challenge (age 18 at offense) | People: 18 is adult; Miller inapplicable; but youth-related record should be made for parole eligibility under §3051 | Windfield: 90-year-to-life is cruel/unusual given youth and long parole ineligibility | Conviction and sentence affirmed; Miller/Graham inapplicable to 18-year-olds, but limited remand ordered to make youth-related record for future §3051 youth offender parole considerations |
| Johnson's Eighth Amendment and resentencing claim (age 17 at offense) | People: defendant not entitled to resentencing but entitled to make youth-related record for parole hearing; juvenile transfer hearing required under Prop 57 if judgment not final | Johnson: sentence functionally LWOP for juvenile; entitled to resentencing under Gutierrez | Held: no automatic resentencing; remand for juvenile transfer (Prop 57/Vela) and for trial-court hearing to create a record of youth mitigation (Franklin) to inform future parole; if juvenile court declines transfer, convictions reinstated; otherwise juvenile disposition imposed |
| Retroactive application of SB 620 (striking firearm enhancements) | SB 620 applies retroactively to nonfinal judgments; trial court has discretion to strike/dismiss §12022.53 enhancements | Defs seek strike/dismissal | Remand: SB 620 applies; trial court must decide in interest of justice whether to strike/dismiss enhancements unless record shows it would not have done so originally |
| Clerical/technical sentencing issues (abstracts, credits, pronouncement) | People concede clerical fixes and one-day credit; argue Johnson waived pronouncement claim | Defs assert errors | Court directed correction of abstract dates, award of one additional day custody credit, found Johnson waived any pronouncement error; post-sentencing corrections moot as to some enhancements pending SB 620 remand |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause requires unavailability and prior opportunity for cross-examination)
- Mattox v. United States, 156 U.S. 237 (1895) (historic rule on admissibility of former testimony)
- People v. Cromer, 24 Cal.4th 889 (2001) (prosecution’s due‑diligence obligation to locate witnesses)
- People v. Fuiava, 53 Cal.4th 622 (2012) (reasonable efforts to locate material witness may be sufficient when timely and leads explored)
- People v. Bland, 28 Cal.4th 313 (2002) (concurrent-intent/kill-zone theory for attempted murder)
- People v. Canizales, 7 Cal.5th 591 (2019) (clarified limits and prerequisites for applying kill‑zone theory)
- Miller v. Alabama, 567 U.S. 460 (2012) (mandatory LWOP for juveniles violates Eighth Amendment)
- Graham v. Florida, 560 U.S. 48 (2010) (Eighth Amendment bars life without parole for nonhomicide juvenile offenders)
- People v. Franklin, 63 Cal.4th 261 (2016) (remand to allow juvenile/offender to create record of youth-related mitigation for parole proceedings)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (distinguishing sentencing treatment for offenders under 18)
- People v. Flores, 9 Cal.5th 371 (2020) (trial court must exercise informed discretion under SB 620; remand often required to permit consideration)