P. v. Johnson

Filed 3/30/06 P. v. Johnson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Affirmed.

Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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Calvin Johnson appeals from a judgment of conviction of the murder of two men and attempted murder of a third. He contends the judgment must be reversed because of evidentiary errors, the court's refusal to bifurcate the trial on gang issues, insufficiency of the evidence, prosecutorial misconduct, and sentencing errors. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Demetric Johnson, Rhoshad Wallace, and Frederick Cloud were driving home from work when appellant jumped out of the bushes at an intersection and fired several shots at the car. Wallace and Cloud died from gunshot wounds to the head. Johnson was shot in the arm and survived.

Police officers attempted to interview Johnson at the scene and at the hospital to which he was taken, but stopped because he was disoriented and upset. He was interviewed about a week after the shooting. Johnson described the shooter as approximately five feet seven or eight inches tall, weighing 165 pounds, and wearing red shorts, a white T-shirt, and a red and white cap. At a photographic lineup, Johnson picked out two photos and asked to see a profile. The police officers gave him only appellant's profile. He identified appellant as the shooter.

Gigi Kemp, in custody for a parole violation, made a recorded statement to police, saying that appellant told her he committed the murders. At trial, she recanted this statement, claiming she lied to get out of jail.

Johnson was a member of the Avalon Garden Crips. Appellant was a member of a rival gang, Centerview Piru, associated with the Bloods. Neither Wallace nor Cloud was a known gang member.

Appellant was charged with two counts of murder, one count of attempted murder, and shooting at an occupied motor vehicle. He also was charged with a multiple murder special circumstance, firearm use enhancements, and gang allegations. The jury convicted appellant of all charges and found all of the special allegations to be true. The court sentenced appellant to two life terms without possibility of parole, three terms of 25 years to life for the firearm use enhancements, plus seven years for attempted murder. The five-year sentence for shooting at a motor vehicle was stayed pursuant to Penal Code section 654.[1]

Appellant filed a timely notice of appeal.

DISCUSSION

I

Appellant contends his constitutional rights were violated when the trial court refused to admit evidence that a third party committed the charged offenses. He sought to introduce evidence that Myron â€