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People v. Allen

California Court of Appeals, Second District, Third Division
Feb 7, 2011
No. B222364 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA107996 Paul A. Bacigalupo, Judge.

Morgan Daly, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


CROSKEY, Acting P.J.

Willie Allen (Allen) appeals from the judgment entered following a jury trial which resulted in his conviction of shooting a firearm in a grossly negligent manner (Pen. Code, § 246.3), during the commission of which he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and two counts of assault with a firearm (§ 245, subd. (a)(2)), during one of which he inflicted great bodily injury (§ 12022.7, subd. (a)), and the trial court’s finding he had suffered a prior felony conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Allen to 11 years in prison. We affirm the judgment.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

1. Facts.

In 2009, Tajuana McKissic (McKissic) lived in a house near Imperial Boulevard between Central Avenue and Compton Avenue in Los Angeles. Although they had no children, McKissic and Allen had been involved in an on-and-off relationship for the previous 15 years. The Friday night before August 16, the two had argued. They apparently argued fairly frequently.

In the morning hours of August 16, McKissic received a telephone call from Allen. Over the phone Allen told McKissic to go outside and look at her car window. McKissic did so and found that the rear window on her car had been “busted, ” or broken. It was being held together by the tint on the glass.

McKissic was angry and she decided to go to the house of Chanita Stoot, the mother of Allen’s child, to see if he was there. As she drove by the house, which is located off of Figueroa near 87th Street, McKissic saw Allen’s van parked in the driveway. She then drove back to her home.

McKissic decided to go back to the house where Allen was staying. She threw her baseball bat into the back of the car and, this time, she took her sister-in-law, Snowwisha Johnson (Johnson), with her. McKissic wanted someone else to go with her “just in case something happened.” McKissic pulled up in front of the house with the front end of her car facing into the driveway, put her car in park, got out and opened the gate. While Johnson waited in the car, McKissic, with her bat in her hand, approached Allen’s van. Two young children were sitting on the front porch of the house when McKissic entered the yard, but she did not say anything to them. She walked up to the van and, using her bat, she “busted out [Allen’s] back window....” She could not remember if she broke the window on the driver’s side or the passenger’s side of the van. However, she broke the window “[b]ecause, he busted out [her] window so [she was] going to bust out his window.”

After she broke Allen’s window, McKissic turned around and started to walk away. She did not say anything to anyone. She simply “headed back towards [her] car.” As she walked, McKissic saw Stoot come out and walk about halfway to the gate. Allen came out and stood on the front porch of the house holding a gun. When McKissic saw him “raise” the weapon, she “jumped” into her car and put it in reverse. As she pulled out of the driveway, “[Allen] fired a shot.” When McKissic “rolled” the car down a nearby alley, Johnson, who had been holding her leg, told McKissic, “ ‘I have been shot.’ ”

McKissic immediately took Johnson to Martin Luther King Hospital. While McKissic waited, she inspected her car. She found a hole on the lower portion of the passenger side door. Later, when McKissic spoke to a detective about the incident, she indicated that she had seen Allen pull the trigger on the gun. At trial, she testified that she had not meant to tell the detective that she saw Allen pull the trigger, she “just agreed to what [the detective] said.”

Twenty-seven-year-old Snowwisha Johnson has known Allen for a number of years. He and her sister-in-law, McKissic, had been dating since Johnson was a teenager.

On August 16, 2009, Johnson was at McKissic’s home. Johnson believed she was accompanying McKissic to another housing project to pick up a phone when, after they had gotten onto the freeway, she realized that they were going to the house where Allen was staying. It was then that she noticed that McKissic’s car’s rear window was shattered.

When they arrived at the house where Allen and Stoot lived, McKissic pulled into the driveway. McKissic “popped the trunk, ” got out of the car and pulled out a baseball bat. While Johnson sat in the passenger’s seat of the car, McKissic slid the gate open, went into the yard and, using the baseball bat, “bust[ed] out the van[’s] window.” After McKissic had broken the window on Allen’s van, Stoot came out of the house and started arguing with McKissic. “They were calling each other[] names back and forth, and [Stoot] kept saying, well, what do you want to do?” McKissic replied, “ ‘I already did what I came to do.’ ”

Johnson saw Allen come out onto the porch and she began to get out of the car. She stood beside the car, with one foot on the ground and one foot still inside until Allen turned around and went back inside. At that point, Johnson got back into the passenger’s seat and closed the car door. She watched as McKissic and Stoot continued to argue, then saw McKissic turn and walk out of the yard and close the gate. McKissic put the bat in the back seat, then turned around and continued to argue with Stoot. “They were calling each other names, crazy and other vulgar names.” After the two women argued for another two or three minutes, McKissic got back into the car, put it in reverse and began to drive away. Stoot was still standing in the driveway inside the gate. Johnson then looked up and saw Allen standing on the porch with a gun in his hand. He lifted the gun up and pointed it at the car. McKissic was about to turn left, away from the house when Allen, who was approximately 15 feet from McKissic’s car, fired the gun, hitting the passenger side door. McKissic turned down a nearby alley and Johnson started to scream. She had “this crazy pain and [her foot] wouldn’t move.” As they drove down the alley, Johnson realized that she had been shot in the leg and she told McKissic to drive her to Martin Luther King Hospital.

At Martin Luther King Hospital, “[t]hey stopped [Johnson’s leg] from bleeding, patched it” and gave her pain killers. She was then placed in an ambulance and transported to Harbor UCLA Medical Center. At Harbor UCLA, it was determined that the gunshot wound to Johnson’s leg had caused her to suffer nerve damage which affected the use of her foot. Johnson remained in the hospital for four days. According to her discharge papers, Johnson had bullet fragments and a bone chip in her right leg. She was unable to work for two months and has scars on the front and back of her leg. She still has “no feeling in [her] foot, and [her] foot tends to swell a lot.... And [when it gets] cold... [her] leg aches a lot....”

Chanita Stoot is the mother of Allen’s four-year-old son. Stoot also has a seven-year-old daughter with a different father. For approximately the last year, Stoot has lived with Allen and her two children in a house near the intersection of Manchester and Figueroa in Los Angeles.

On August 16, 2009, Stoot saw McKissic pull her white car into Stoot’s driveway. When Stoot next looked out her window, she saw McKissic using a baseball bat to break a rear window on Allen’s van. As McKissic turned to walk out of the yard, Stoot came out the front door of her house and onto the driveway. McKissic was outside of the gate to the yard when the two women exchanged words. Stoot wanted to know why McKissic had broken the window on the van and she asked McKissic several times. McKissic, however, ignored Stoot, got into the car, threw the bat into the back seat and began to back up, out of the driveway. Stoot, walking next to the driver’s side of the car, continued to ask McKissic why she had come to the house and broken the window on Allen’s van. As McKissic drove off, Stoot heard a gunshot. She stated that she “just heard it.” She did not know where it had come from, although she lived by an alley and there “is a lot of activity over there.”

Stoot went back into her yard and saw Allen standing on the porch with the two children. Allen did not have a gun in his hand. Stoot had never seen Allen with a gun and she did not have a gun in her home.

After an audio tape was played indicating that Stoot had told a detective that she knew it was Allen who had fired the shot and that he had told her that he “ ‘hop[ed] [he hadn’t] hit one of them, ’ ” Stoot testified that the detective had “told [her] to say that.” Stoot continued, indicating that “[h]e didn’t tell [her] to say that but [the detective], he told [her] that he kn[e]w that [Allen] did it and that, ... [she and Allen] both could go down for this and he was going to take [her] kids.” In addition to telling the detective that Allen had fired the shot, Stoot can be heard telling him that Allen had, along with the rest of his things, “put a gun in [his] van.” When police officers later searched Stoot’s home, they did not find a gun.

Stoot testified that she loved Allen and that he was the father of one of her children. She did not want to see him get into trouble for this incident. The only reason she told the detective “that [she] saw [Allen] put a gun in [a] drawer and then later put the gun in the van is because [she was] afraid for [her] children.”

Los Angeles Police Officer Francis Coughlin was the investigating officer assigned to Allen’s case. On August 16, 2009, Coughlin and other officers set up surveillance around Stoot’s home in an attempt to arrest Allen. However, after approximately two hours, when Allen did not arrive at the residence, Coughlin decided to leave.

Allen was taken into custody on August 18, 2009 in the area near 114th Street and Mona Boulevard. He was in his van, which was full of bags of clothes and other items. A search of the van failed to reveal a gun.

Allen was given his Miranda warnings at the South West Station. After waiving his right to counsel and to remain silent, Allen made a statement which was tape recorded. On the audio tape, which was played for the jury, Allen admits breaking McKissic’s car window. He states that he threw something at the car. Allen then gave to the officer “contact information” enabling the officer to “get ahold of Chanita Stoot.”

Miranda v. Arizona (1966) 384 U.S. 436.

Coughlin was able to contact Stoot at her place of employment. He did not say to her that Allen “did it” or that “if she did not say the same thing, [that he] would take away her children.” Coughlin picked up Stoot at the bagel shop where she worked and drove her home. During the drive, he did not interview her regarding the incident with McKissic and he did not tape record their conversation. Coughlin only tape recorded his interview with Stoot, which took place in front of her home. During the interview, Stoot was “very cooperative” but “sad.” After he had interviewed Stoot, Coughlin and approximately four other officers searched her house. They did not find a gun.

2. Procedural history.

On November 20, 2009, an amended information was filed charging Allen with one count of shooting at an occupied motor vehicle in violation of section 246, during the commission of which he personally and intentionally discharged a firearm, a handgun, causing great bodily injury to Snowwisha Johnson within the meaning of section 12022.53, subdivision (d), and personally and intentionally discharged a firearm, a handgun, within the meaning of section 12022.53, subdivision (c). It was further alleged that Allen had committed two counts of assault with a firearm in violation of section 245, subdivision (a)(2), during one of which he personally inflicted great bodily injury upon Snowwisha Johnson within the meaning of section 12022.7, subdivision (a). Finally, it was alleged that Allen previously had been convicted of “a serious or violent felony or juvenile adjudication, ” an assault upon the person of another with a machinegun in violation of section 245, subdivision (a)(3), within the meaning of sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i), the Three Strikes law.

At proceedings held on January 4, 2010, Allen made a Marsden motion. After the prosecutor left the courtroom, Allen indicated that he felt that he and his counsel were not communicating and that counsel was not on his side. The trial court asked Allen several questions, then indicated that his responses had amounted to mere conclusions. He had given no explanations for or examples of his assertion. The court concluded that, under the circumstances, Allen had failed to show that there had occurred such a breakdown in communication that counsel could not competently represent him and the court denied Allen’s motion.

People v. Marsden (1970) 2 Cal.3d 118.

During trial, defense counsel made an Evidence Code section 402 motion with regard to Detective Coughlin’s testimony. Counsel stated, “Apparently, this detective and other police that may or may not testify in this case believe that the defendant is a gang member, and I believe this detective has had contact with him in the past. [¶] Since it’s clear this is not a gang-related matter, I really don’t think it would be appropriate for the detective to mention, or the prosecutor to ask, anything about his alleged gang membership or any gang activity or any knowledge or contacts he may have about, perhaps, even prior acts that he’s done as a gang member.” When the trial court then asked the prosecutor whether he had intended to “elicit any testimony on [the] subject of gang [membership], ” the prosecutor responded, “No. No, I was not.” The trial court accordingly ordered Detective Coughlin “not to mention it.”

On January 7, 2010, the jury found Allen guilty of shooting a firearm in a grossly negligent manner in violation of section 246.3, “a lesser included offense [of that] charged in Count 1 of the Information.” It further found that, during the commission of the above offense, Allen “personally inflicted great bodily injury upon Snowwisha Johnson” within the meaning of section 12022.7, subdivision (a). With regard to count 2, the jury found Allen guilty of assault with a firearm in violation of section 245, subdivision (a)(2). The jury further found that in the commission of the above offense, Allen “personally inflicted great bodily injury upon Snowwisha Johnson within the meaning of... section 12022.7[, subdivision] (a).” Finally, the jury found Allen guilty of assault with a firearm in violation of section 245, subdivision (a)(2), “upon Tajuana McKissic, as charged in Count 3 of the Information.”

Allen decided he did not wish to have a jury trial on his prior conviction. After he had waived that right, the trial court reviewed exhibits presented by the People and found that they had “sustained their burden of proof in proving up the prior adjudication and/or felony conviction” for assault upon another with a machine gun in violation of section 245, subdivision (a)(3).

The trial court selected count two, Allen’s conviction of assault with a firearm of Snowwisha Johnson in violation of section 245, subdivision (a)(2), as the base term and imposed as to that count three years in state prison, doubled to six years pursuant to the Three Strikes law. For the section 12022.7, subdivision (a) great bodily injury enhancement, the trial court imposed a consecutive term of three years in prison. With regard to Allen’s conviction of shooting a firearm in a grossly negligent manner in violation of section 246.3, the trial court imposed a term of two years, doubled the term to four years pursuant to the Three Strikes law, then stayed the term pursuant to section 654 since it pertained to the same victim as that alleged in count two. With regard to count 3, the trial court imposed a consecutive sentence of one-third the midterm, or one year, then doubled the term to two years pursuant to the Three Strikes law. In total, the trial court sentenced Allen to 11 years in state prison.

The trial court awarded Allen presentence custody credit for 170 days actually served and 24 days of conduct credit, for a total of 194 days. Allen was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $90 court construction fund assessment (Gov. Code, § 70373). The trial court dismissed all remaining allegations, including a misdemeanor case, then advised Allen of his right to appeal.

Allen filed a timely notice of appeal on February 2, 2010.

This court appointed counsel to represent Allen on April 7, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed October 15, 2010, the clerk of this court advised Allen to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On November 4, 2010, Allen filed a supplemental brief in which he asserted 1) he had been denied his right to a speedy trial, 2) contrary to the court’s finding, he has never been on probation, and 3) he is serving an 11 year sentence for something he did not do.

Initially, a review of the record indicates that, either personally or through his counsel, Allen repeatedly waived time for trial. As to his assertion he has never been on probation, a review of Allen’s probation report indicates that on September 23, 2006, Allen was “convicted of misdemeanor [section] 166, [subdivision] (a)(4)... (disobeying/contempt of a court order) in Los Angeles County Superior Court/Los Angeles, case number 6CA23355. [Allen was] granted 36 months summary probation and 30 days in county jail.” With regard to his contention that he is serving an 11 year sentence for something he did not do, a jury of his peers unanimously found otherwise and that finding is supported by substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

We concur: KITCHING, J., ALDRICH, J.


Summaries of

People v. Allen

California Court of Appeals, Second District, Third Division
Feb 7, 2011
No. B222364 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Allen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIE ALLEN, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Feb 7, 2011

Citations

No. B222364 (Cal. Ct. App. Feb. 7, 2011)