THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHNSON et al., Defendants and Appellants.
C100050 (Super. Ct. No. 20FE008519)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 8/27/25
NOT TO BE PUBLISHED. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants were charged with attempted murder and two enhancements: (1) being principals in the offense and at least one principal intentionally discharged a
I
Trial Testimony
B.M. was shot on the evening of May 26, 2020, on Center Parkway in Sacramento. Witnesses saw three men with masks get out of a white car, walk toward B.M., pull out concealed firearms, and fire multiple rounds at B.M. as he stood next to his car with two other occupants. E.R. testified she was next to B.M. during the shooting but did not see the shooters nor was she shot herself.
Video taken from cameras near the scene of the shooting showed the shooters arrived at the scene in a white car. The footage showed one male getting out of the front passenger seat “wearing a black hooded sweatshirt, khaki-colored pants and white tennis shoes.” Another male was shown getting out from behind the driver‘s seat “wearing a black hooded sweatshirt, light-colored jeans and some black and light-colored Jordan 13 shoes.” A third male was shown getting out from behind the front passenger seat but only the fact he was “wearing a hooded sweatshirt” could be seen on the footage. The video also showed the first person leaving the car “was holding his waistband and hiding his hand underneath his hooded sweatshirt.”
Law enforcement officers found the shooters’ white car at a house early the morning of May 27, 2020, and watched it until it left shortly after. Officers then pulled over the white car and arrested the occupants, which included defendants. Johnson was wearing clothes matching the male from the video who got out of the front passenger seat and Chaney was wearing clothes matching the second male who got out from behind the
B.M. survived but was shot seven or eight times, including in the back of his shoulder, his lower right abdomen, and his hand. Twelve expended rounds were recovered at the scene, three were .40-caliber and nine were nine-millimeter. Tests showed all three .40-caliber casings found at the scene of the shooting came from the Taurus firearm found on Johnson, six of the nine-millimeter casings came from one gun, and three came from another gun. The car near B.M. had three bullet holes.
Officers searched the white car and found additional clothing and masks consistent with clothing worn by the shooters seen in the videos. Defendants’ DNA and gunshot residue were present on the clothing. Around the time of the shooting, cell tower data showed codefendant Deshun Lamont Williams, who is not a party to this appeal, in the vicinity of the shooting and then at the house where the white car was found. Defendants’ cell phones were in the same area of this house right after the shooting and another video showed Johnson and Chaney getting out of the white car at this house minutes after the shooting. Officers also searched Williams‘s house, where the white car was registered, and found, among other items, a backpack with a bill of sale in Chaney‘s name.
II
Gang Evidence
Before trial, the trial court granted Johnson‘s motion to bifurcate the trial on the merits from the trial on the gang allegation for both defendants. Johnson also filed a motion in limine seeking to exclude any gang evidence from the merits trial. The prosecutor‘s motions in limine included a request to introduce evidence of gang affiliation. After the parties argued on admission of the gang evidence, the trial court ruled the evidence admissible. The court stated, “I do find that this gang evidence is unquestionably relevant; that it makes the pieces connect. It ties defendants to one
At trial, a gang expert testified he believed defendants were members of the Oak Park Bloods criminal street gang. This opinion was based on a review of defendants’ social media profiles showing gang insignia and use of gang hand signs, as well as defendants’ involvement in “gang-related crime,” without elaboration on what these crimes were. Paraphernalia associated with the Oak Park Bloods was also found at Williams‘s house. The day before the shooting, members of the Oak Park Bloods, including Williams and Chaney, were beat up in a fight with a rival gang. Williams‘s text messages indicated he wanted retribution against the rival gang. Shortly after these messages, defendants shot B.M. in rival gang territory. Even though there was no evidence B.M. was a member of a gang, the expert testified he believed the shooting of B.M. was motivated by gang allegiance.
The jury was instructed it could consider gang evidence only for motive, intent, and witnesses’ credibility, with the specific admonishment: “You may not conclude from this evidence that the [d]efendant is a person of bad character or that he has a disposition to commit crime.”
III
Verdicts And Sentencing
The jury found defendants guilty of attempted murder and found true defendants personally and intentionally discharged a firearm causing great bodily injury under
Defendants appeal.
DISCUSSION
I
The Attempted Murder Convictions Were Supported By Substantial Evidence
Defendants challenge their attempted murder convictions for a lack of substantial evidence, but for different reasons. We will address each defendant‘s arguments separately and disagree with both.
A
Legal Standards
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness‘s credibility.” (Ibid.) ” ‘The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.’ ” (People v. Riazati (2011) 195 Cal.App.4th 514, 532.)
The elements of “[a]ttempted murder [include] the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.)
There Was Substantial Evidence Johnson Acted With The Intent To Kill
Johnson concedes there was substantial evidence he was “present at the scene of the shooting and fired a gun.” Johnson instead challenges the evidence he had the requisite intent for attempted murder, arguing: “Because of the lack of clarity as to why anyone at the scene was firing a gun and which shooter was firing at which bystander, the jury must have speculated instead of properly concluding the specific intent element of attempted murder was satisfied.” Thus, Johnson continues, “The jury did not receive sufficient evidence to know who, if anyone, Johnson was shooting at, or why he was shooting.” We disagree.
There was ample evidence Johnson shot at B.M. with the intent to kill. Witnesses testified Johnson got out of the white car, walked toward B.M. obscuring his firearm, and then shot at B.M. at close range. Even if we assume Johnson fired only three times and somehow missed B.M. each time, he necessarily shot near B.M. because only one bullet was unaccounted for and the rest either struck B.M. or the car right next to him. As stated by our Supreme Court: ” ‘There is rarely direct evidence of a defendant‘s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant‘s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 741; see People v. Houston (2012) 54 Cal.4th 1186, 1218 (Houston).) Johnson also coordinated the attack with two other shooters who both shot only B.M. and did so eight times, strengthening the inference Johnson was also shooting at B.M. These circumstances firmly establish substantial evidence Johnson intended to kill B.M., notwithstanding the presence of other bystanders.
Determining why Johnson shot at B.M. with the intent to kill is not essential. The prosecutor was not required to prove beyond a reasonable doubt why defendants shot
C
There Was Substantial Evidence Chaney Was A Shooter
Chaney argues there was no substantial evidence he was one of the three shooters. Chaney relies on the fact he “was not identified as one of the assailants by any of the eyewitnesses to the crime.” We disagree.
There is ample evidence establishing Chaney was one of the shooters. This included a video and cell tower data establishing Chaney was in the white car within minutes of the shooting; the clothes Chaney was wearing when arrested the day after the shooting matched some of the clothes worn by one of the shooters, including “uncommon” Jordan 13 shoes; and Chaney‘s DNA was found on other clothes from the white car that matched clothing worn by one of the shooters and this clothing also had gunshot residue on it. All of this provides substantial evidence supporting the jury finding Chaney was one of the three shooters.
Chaney also makes a similar motive argument as Johnson, contending he “had no reason to shoot complete strangers.” We reject this argument for the same reasons we rejected Johnson‘s motive argument.
II
Defendants Have Not Established Reversible Error For The Firearm Enhancements
Both defendants contend their firearm enhancements lacked substantial evidence. Johnson argues there was no evidence which firearms fired the bullets striking B.M., causing great bodily injury to justify the
Even if we assume the original enhancement lacked substantial evidence, defendants do not sufficiently support their arguments for remand. Defendants do not contend their
III
The Trial Court Did Not Err By Admitting The Gang Evidence
Both defendants make substantially similar arguments challenging the gang evidence admitted at the merits trial. Johnson contends, “The gang evidence had little
A
Legal Standards
“Only relevant evidence is admissible at trial. [Citation.] Under
“The [prosecution is] generally entitled to introduce evidence of a defendant‘s gang affiliation and activity if it is relevant to the charged offense. [Citation.] ‘Evidence of the defendant‘s gang affiliation—including evidence of the gang‘s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.’ [Citation.] Even
B
There Was No Abuse Of Discretion In Admitting The Gang Evidence
Defendants are correct that there was no evidence B.M. was a member of any gang. But that is a reason why this evidence was relevant. Defendants had no connection to B.M. and yet they and a fellow gang associate collectively fired 12 bullets at him. The gang evidence filled in motivational gaps. This evidence showed defendants were associated with the Oak Park Bloods, whose members lost in a brawl with a rival gang the day before the shooting. Williams texted he sought revenge for the brawl right before the shooting. And B.M. was shot in territory of the Oak Park Bloods‘s rival gang. The expert therefore testified he believed the shooting of B.M. was motivated by gang allegiance.
As mentioned, motive is not an element of attempted murder. (Houston, supra, 54 Cal.4th at p. 1218.) But “motive is often probative of an intent to kill.” (Ibid.) That was the case here. The gang evidence showed not only why defendants shot B.M., but also made it more likely they shot B.M. with an intent to kill because they were gang members shooting in a rival gang‘s territory. (See People v. Francisco (1994) 22 Cal.App.4th 1180, 1184-1185, 1192 [finding an intent to kill may reasonably be inferred when a gang member fires multiple shots at people in rival gang territory].) Though the nongang evidence was sufficiently substantial to support an intent to kill finding, as we concluded above, the gang evidence was still probative in making this inference stronger.
Any prejudice was limited. The prosecutor here introduced only what was needed to establish defendants were members of the Oak Park Bloods and the events leading up
IV
There Was No Reversible Error With The Closing Arguments
Defendants next argue there was prosecutorial error made during the prosecutor‘s closing arguments. Johnson concedes there were no objections to these statements during trial, which forfeited “Johnson‘s ability to directly raise that misconduct on direct appeal.” But Johnson asserts he suffered ineffective assistance of counsel for the forfeiture. Chaney adopts Johnson‘s arguments.
We accept defendants’ concessions they forfeited any claim of prosecutorial error by failing to object during the trial. “In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) We accordingly address their claims of ineffective assistance of counsel and conclude no prejudicial error occurred.
A
Additional Background
During closing argument, with respect to Johnson‘s gang ties and state of mind after the shooting, the prosecutor stated the following: “Now, this is [Johnson] and his
“They are not hiding it. They are not hiding it. They don‘t -- you know, they don‘t want you to believe it when you get in here, right, under these circumstances, but they‘re not hiding it. It‘s all over social media. Right there he is saying -- he‘s telling you exactly what he‘s about: A whole lot of gang shit.
“This is him with all his friends. And, again, I will just reiterate, if this was [the] only thing these guys were doing, sitting around, putting up signs, we would not be here. They are not being criminalized because of the neighborhood . . . because of the neighborhood they grew up in. Lots of people grew up in Oak Park and have nothing to do with the Oak Park Bloods.
“But these guys are Oak Park Bloods. They are gangsters, and they want you to know: Gives two fucks who gets hit. Bitch, I‘m airing out the crowd. And that‘s what he did. He aired out the crowd. [¶] [E.R.] amazingly was not hit by any of those -- any of those weapons. I don‘t know that [B.M.] was a hero in this particular instance, but he certainly took a lot of bullets for [E.R.]. They were right there in the ‘V’ of that car. They were together, and she very easily could have been shot multiple times, right? He doesn‘t care. He doesn‘t give two whits about it. Still doesn‘t care. Guaranteed.”
While encouraging the jury to find the firearm enhancements true under
B
Legal Standards
Ineffective assistance claims are governed by a two-prong test under which a defendant must show both (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced their defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” (Id. at p. 700.)
To show prejudice, defendants must show a reasonable probability that they would have received a more favorable result had counsel‘s performance not been deficient. (Strickland, supra, 466 U.S. at pp. 694-695.) “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. . . . [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (Id. at pp. 695-696.) “If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel‘s performance was deficient.” (In re Crew (2011) 52 Cal.4th 126, 150.)
C
Defendants Do Not Establish Prejudice From Any Ineffective Assistance
Johnson, and Chaney by adoption, contend “the prosecutor committed reversible misconduct in closing argument” in five ways: (1) “by effectively claim[ing] that Johnson was guilty because of his membership in a gang,” (2) “personally guaranteeing Johnson lacked remorse,” (3) “intimating that Johnson‘s social media post was a threat to the jurors,” (4) “by improperly arguing Johnson‘s social media post about ‘airing out the crowd’ referred to the May 26th shooting,” and (5) “by arguing facts not in evidence as it related to the
Defendants’ first four claims of prosecutor error go to the attempted murder conviction. But as discussed above, there was plenty of evidence establishing defendants’ attempted murder convictions. Eyewitness testimony, video recordings, DNA evidence, gunpowder residue, cell tower data, and Chaney‘s bill of sale established defendants shot at B.M., collectively striking him eight times. The jury was also instructed, “Nothing that the attorneys say is evidence.” Considering the totality of the evidence before the jury, defense counsels’ failure to object to the four challenged statements in the prosecutor‘s closing argument does not suggest a reasonable likelihood the jury relied on the prosecutor‘s statements in reaching its decision.
This is also true for the prosecutor‘s firearm enhancement statement. Defendants contend the prosecutor erred when he claimed “each one of those defendants” shot B.M., after previously admitting to the trial court, when discussing the instruction for the firearm enhancement: “I can‘t prove which defendant was shooting a .40[-caliber]. I can‘t prove which defendant was shooting a [nine-millimeter].” Again, defendants have not shown prejudice under Strickland.
Defendants must show the result would have been different had defendants’ counsel objected to the prosecutor‘s offending statement. (Strickland, supra, 466 U.S. at p. 694.) Defendants have not done this because the trial court already lowered this firearm enhancement to
V
Johnson Forfeited His Notice Challenge To The Firearm Enhancement
Johnson next contends he was charged with the firearm enhancement pursuant to a theory of vicarious liability under
Johnson again acknowledges he did not object to this issue below. Where a defendant fails to object at trial to the adequacy of the notice he received, any such objection is deemed forfeited. (Houston, supra, 54 Cal.4th at p. 1227.) Relying on People v. Anderson (2020) 9 Cal.5th 946, Johnson argues we should exercise our discretion to consider the merits of the argument. Our Supreme Court in Anderson noted, “It is well settled that an appellate court may decide an otherwise forfeited claim where the trial court has made an error affecting ‘an important issue of constitutional law or a substantial right.’ ” (Id. at p. 963.) Our Supreme Court chose to exercise this discretion for three reasons in that case: (1) “the error [was] clear and obvious“; (2) “the error affected substantial rights by depriving [the defendant] of timely notice of the potential sentence he faced“; and (3) “the error was one that goes to the overall fairness of the proceeding.” (Id. at p. 963.)
Johnson argues: “[T]he lack of pleading notice for personal use liability could have affected defense trial strategy on how strenuously to contest the gun enhancement allegation.” This is insufficient. Anderson highlighted three reasons it was exercising its
VI
There Was No Cumulative Error
Finally, Johnson argues that because every error “above each warrant[s] reversing the judgment, the cumulative effect of those errors requires reversal as well.” We conclude there is no cumulative error having concluded none of the above issues constituted error. (People v. Sapp (2003) 31 Cal.4th 240, 287.)
DISPOSITION
The judgment is affirmed.
/s/
ROBIE, J.
We concur:
/s/
EARL, P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.