P. v. Johnson

Filed 10/25/06 P. v. Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

John T. Doyle, Judge. Affirmed.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Anthony Johnson, appeals from the judgment entered following his conviction, by jury trial, for attempted premeditated murder with firearm use findings (Pen. Code, §§ 664/187, 12022.53).^[1] Sentenced to state prison for 25 years to life, Johnson claims there was trial error.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established the following.

1. Prosecution evidence.

On the night of July 17, 2005,^[2] Lace O. was at home when there was a knock on the front door. When Lace opened it, she saw defendant Johnson and Joseph Boyd standing on her doorstep. She knew both men well because she had grown up with them.

Boyd asked about Lace’s brother. Lace thought this was odd because her brother had been gone for a year and a half. While they were talking, John Martinez walked up. Lace was also well-acquainted with Martinez. Lace spoke to Boyd for less than a minute. Johnson did not say anything, but he suddenly pulled a handgun from his pocket and pointed it at Lace. Lace turned and ran. Johnson fired five shots, hitting Lace twice. She fell to the floor and pretended to be dead. The three men fled.

2. Defense evidence.

Sheree McNeal testified she had known Johnson since January 2005, and that they started dating in April. On July 16, McNeal and Johnson traveled to Las Vegas by bus, stayed in an apartment belonging to two friends of Johnson’s, and then returned by bus to Los Angeles on July 26. McNeal could not recall the names of Johnson’s friends. McNeal only remembered the exact travel dates of the Las Vegas trip because they were noted on the bus tickets, which she had kept. Although she knew Johnson had been arrested shortly after their return from Las Vegas, McNeal had not come forward earlier with this alibi evidence because she feared prosecution. She had been 25 and Johnson just 16 when they got involved, and she believed she might face prosecution for having had sex with a minor.

CONTENTION

The trial court erred by instructing the jury with CALJIC No. 2.05 (production of false evidence by third person for defendant’s benefit).

DISCUSSION

Trial court properly instructed the jury with CALJIC No. 2.05.

Johnson contends the trial court erred by instructing the jury on CALJIC No. 2.05 because there was no evidence to support an inference he had authorized McNeal to produce false evidence. This claim is meritless.

Over Johnson’s objection, the trial court instructed the jury with CALJIC No. 2.05, as follows: “If you find that an effort to procure false or fabricated evidence was made by another person for the defendant’s benefit, you may not consider that effort as tending to show the defendant’s consciousness of guilt unless you also find that the defendant authorized that effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

A defendant’s authorization for the production of false evidence may be proved by circumstantial evidence; however, merely having the opportunity to procure false evidence or merely having a pre-existing relationship with the person who submits it is not sufficient proof of authorization. (People v. Terry (1962) 57 Cal.2d 538, 566.) Johnson claims there was no evidence he authorized McNeal to testify falsely or produce false evidence about their trip to Las Vegas. Not so. There was ample circumstantial evidence Johnson had authorized McNeal to provide him with a false alibi.

On cross-examination, the prosecutor demonstrated the papers McNeal had brought to court were not the actual Las Vegas bus tickets, but only the paper folders into which the tickets had been placed by the ticket seller. Other than the two ticket folders, McNeal had no other physical evidence to show when the Las Vegas trip took place. Defense exhibit A, the ticket folder for the return bus trip from Las Vegas to Los Angeles, had the date July 26 stamped onto the folder. Defense exhibit B, the ticket folder for the initial bus trip from Los Angeles to Las Vegas, had only a hand-written notation showing July 16, not a date stamp.

McNeal testified she had been in touch with Johnson after his arrest, that they had written letters to each other and had spoken on the phone twice. The first telephone call had been initiated by Johnson right after he was arrested. McNeal testified that during this call, Johnson told her “he was accused of shooting someone. And I asked him, and he said he didn’t do it.” Asked what had prompted her to bring the ticket folders to court, McNeal testified, “Because he did bring up, ‘Well, we was in Vegas. I didn’t do it. I didn’t do it.’ And I said, ‘I’ll see if I can find them.’ “

During the in camera discussion of jury instructions, the prosecutor argued the numeral 6 in the number 16, the handwritten date on the ticket folder for the initial Los Angeles-to-Las Vegas bus trip, looked like it had been changed from an eight to a six. If the number had been changed, it arguably indicated the bus trip from Los Angeles to Las Vegas had taken place on July 18, the day after the shooting, rather than on July 16, the day before the shooting. Hence, if the jury believed the handwritten date had been altered, it would show McNeal had produced false evidence in order to bolster her false alibi story. After hearing this prosecution theory, the trial court agreed to give CALJIC No. 2.05.

The trial court did not err. Not only was there sufficient evidence showing McNeal had fabricated an alibi for Johnson, but there also was sufficient evidence she had done so at Johnson’s direction. McNeal testified that when she first talked to Johnson after he was arrested, Johnson justified his innocence by reminding her they had been in Las Vegas when the shooting occurred, and that she responded by saying she would try to find the bus tickets. This testimony, coupled with the fact the handwritten date on the ticket folder apparently looked like it had been altered, provided sufficient circumstantial evidence Johnson had authorized McNeal to produce false evidence. Giving CALJIC No. 2.05 was proper in these circumstances.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] All further calendar references are to the year 2005 unless otherwise specified.