Opinion
D069867
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. SEDRIC E. JOHNSON, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263011) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Sedric E. Johnson of mayhem (Pen. Code, § 203; count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). With respect to count 2, the jury found true allegations Johnson personally used a deadly weapon, specifically a knife, (§ 1192.7, subd. (c)(23)) and personally inflicted great bodily injury on a person other than an accomplice (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) in the commission of the offense. Johnson pleaded guilty to having a prior prison commitment (§§ 667.5, subd. (b), 668) and admitted he was convicted of two prior felonies requiring denial of probation (§ 1203, subd. (e)(4)). The court sentenced Johnson to eight years in prison for count 1. The court stayed punishment pursuant to section 654 for count 2 and the great bodily injury enhancement. It also stayed a one-year punishment for the prison prior.
All further statutory references are to the Penal Code unless otherwise stated. --------
Johnson contends the eyewitness evidence was insufficiently credible to establish he was the perpetrator of the crimes and, as a result, his conviction violated his federal and state constitutional rights. We disagree and affirm the judgment.
BACKGROUND
A
R.R. walked with five other men from a treatment center where they lived in the Encanto community to a store in a nearby shopping plaza. After completing their purchases, two of the men walked back to the center ahead of R.R. and the rest of his group. As R.R. and the rest of his group walked back to the center, they passed a group of African-American men standing in the plaza's parking lot. There was no interaction between the groups.
As R.R. and his group continued to walk toward the center, an individual from the African-American group appeared to break away and walked 20 feet ahead of R.R. and his group. When R.R. and his group arrived at the parking area for the center, an individual from the African-American group walked over and asked one of the men, J.M., who was standing in front of the center's office for a cigarette. J.M. walked toward the individual and reached for his pack of cigarettes. As the individual walked toward J.M., R.R. told the other men from his group to go into the center because he did not have a good feeling about the situation.
The individual struck R.R. three times in the face in quick succession. R.R. looked up, saw a knife, and received a blow to the throat. When R.R. looked the man in the face, he saw a "dead look," then the man ran down the street away from the center.
R.R. was transported to the hospital where he received stitches on his face and under his chin. He had five lacerations, four of which needed stitches. R.R. has scars from above his eyebrow to his nose and on his throat.
R.R. told officers the assailant was an African-American male in his 20s, with short hair, about six feet tall, and weighing about 180 to 190 pounds. He described the person as wearing black pants and a brown or black shirt. He was not dark skinned.
B
As J.M. walked with the group of men to a store in the shopping plaza, J.M. noticed a group of three or four African-American individuals in their 20s hanging out near the gym in the plaza. J.M. left the store and walked back to the center ahead of the other men from his group. J.M. signed in at the center's office and then walked back outside to the parking lot to smoke a cigarette as he watched the other men from his group come up the street.
J.M. noticed a man standing on the street. As the other men from his group walked across the street toward the center, the man approached the group asking for a cigarette. J.M. stepped forward and volunteered two USA Gold cigarettes. As J.M. handed over the cigarettes, the man was standing in a strange position with one hand behind his back and he did not seem that interested in the cigarettes. J.M. felt uncomfortable and both men stood at arms' length. R.R. then said, "Get back. Get back. Get inside."
R.R. was facing J.M. trying to get him out of the way as the man hit R.R. from the side and behind. The man appeared to punch R.R. two or three times quickly in the face and neck and then took off running. The man crossed a main street and jumped onto some stairs going to a trolley station. The man was gone when J.M. realized R.R. was bleeding profusely.
J.M. described the assailant to responding officers as a tall, slim, African-American male, in his early 20s, wearing all black, and carrying a black backpack with the letter "V" on it. He said the man was about five feet 10 inches tall.
C
C.J. also went to the store with the group of men from the center. When C.J. and the group returned to the center, C.J. noticed an African-American man wearing black standing on the street near the parking lot of the center. The man asked J.M. for a cigarette. C.J. saw J.M. hand the man a cigarette and then C.J. walked into the center's office to sign in. As C.J. came out of the center, he saw the man running towards the trolley station.
C.J. described the individual as an African-American male in his mid-20s wearing all black with a black backpack. He was about five feet and nine inches to five feet and 10 inches tall.
D
Video surveillance of the trolley station showed an individual generally matching the description given by the witnesses: an African-American male with a slim build wearing a black shirt, blue jeans, and black shoes. He was wearing a black drawstring backpack. The individual also had a tattoo on the right side of his neck with lettering. The individual is first shown in surveillance footage climbing a wall from the trolley station platform and moving toward the area where the crime occurred. The same individual is seen a few minutes later crossing the trolley tracks and traveling northbound from the intersection near where the crime occurred.
The investigating officer located contact information with a photo of Johnson. He compared the photo to the video surveillance footage obtained from the center and the trolley station. He believed Johnson matched the suspect seen in the video based upon the presence of a goatee, the tattoo on the right neck, and the hairline. Johnson has a tattoo with the word "Tiesha" on the right side of his neck. The officer created a photo lineup including Johnson and five other individuals with similarities.
E
R.R. and J.M. identified Johnson from the photo lineup. R.R. did not recall a tattoo, but "immediately said that was him." J.M. also did not recall seeing a neck tattoo, but said he could not mistake the eyes.
C.J. identified another individual in the photo lineup, but said he was not positive about his identification at the time. He said he could have seen the male he identified in the area near the liquor store before the incident.
F
In court, R.R. identified Johnson as the individual who attacked him. R.R. said Johnson's neck tattoo was distinctive. R.R. said he noticed the tattoo when the assailant looked at him after the attack. However, he admitted he did not mention the tattoo immediately after the incident.
J.M. also identified Johnson in court. At one point he said Johnson did not look as familiar in court. J.M. stated the assailant was not wearing a collared shirt or reading glasses at the time of the attack and had shorter hair than Johnson was wearing at trial. However, J.M. was "very sure" about his photo identification.
C.J. identified Johnson in court as the individual who attacked R.R. C.J. had seen Johnson hanging out in the shopping plaza many times prior to the incident.
The investigating officer identified Johnson in court as the man in the video. Johnson's hair was a little longer and he was wearing glasses in court, but the officer thought he otherwise appeared the same as when Johnson was arrested.
G
An in-custody witness, R.A., testified he was housed next to Johnson in a detention facility. R.A. talked with Johnson daily. Johnson said he hung out by a liquor store near the Encanto trolley station and was trying to get initiated into a street gang called "five-four." He felt he needed to do something to show he was serious about joining the gang. Johnson thought he should stab or slice someone four to five times for the five-four gang. Johnson said he saw a group of males who he asked for a cigarette. Johnson was upset because he was given USA Gold cigarettes. Johnson said he pulled out a small knife and slashed a man in the face saying, "This is five-four. You better learn about us." Johnson sliced the victim three or four times before getting scared and running off. Johnson said he threw the knife in a bag, ran down to the trolley station, got on a trolley, and disposed of the knife.
Johnson said he had a knapsack with the word "Volt" on it. Johnson thought he would get away with the crime because he started to grow facial hair to change his appearance and he was not arrested for a week or 10 days after the incident.
Johnson asked R.A. to go to the center upon his release and scare the witnesses. Johnson told R.A. he had unredacted documentation with witness identification information. Johnson showed R.A. the photo lineup photos, which had witness names, contact information and comments. Johnson was upset two of the witnesses were able to identify him. He wanted information delivered to his "homies" so they could retaliate. He thought if the witnesses could not testify, Johnson would "walk."
H
A.H., who lived at the center at the time of trial, testified for the defense. A.H. was among the group who walked to the store and was in the second group to walk back to the center. When A.H. and the group arrived at the center, an African-American male approximately 19 to 21 years of age came across the street and asked for a cigarette. J.M. handed the man two cigarettes. The man walked toward R.R. and R.R. told the others to get inside. The man started punching R.R. A.H. did not see a knife, but saw R.R.'s face was stabbed. A.H. said he lunged to hit the man attacking R.R., and the man ran down the street.
A.H. told responding police officers the attacker was wearing black pants or black jeans and a black short-sleeved shirt. A.H. looked at a photo lineup and identified a person saying his darkness, hair and mustache were familiar. In court, A.H. said Johnson was not the attacker. He said Johnson was taller than the attacker, had longer hair than the attacker, was stockier than the attacker, and the attacker did not have facial hair under the chin.
In rebuttal, the investigating officer stated A.H. did not say anything about lunging at the attacker. He described the attacker as an African-American male, 20 to 25 years of age, who was six feet tall and 150 pounds, with a short "afro" and clean shaven, but wearing a goatee.
DISCUSSION
I
"[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Hubbard (2016) 63 Cal.4th 378, 392 (Hubbard).) "State and federal due process requirements are identical in this regard." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87, citing People v. Rowland (1992) 4 Cal.4th 238, 269 [constitutional due process requirements ask " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' "].)
"A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment." (Hubbard, supra, 63 Cal.4th at p. 392.)
II
Johnson contends the photo lineup identification of Johnson by R.R. and J.M. as the person who attacked R.R. should not be considered substantial evidence to support Johnson's conviction. Johnson challenges their credibility because they did not recall a neck tattoo when they initially identified Johnson and because these two witnesses are not African-American whereas two other witnesses, including one African-American witness, identified someone else in the photo lineup. We disagree and conclude there is substantial evidence to support the identification of Johnson as the assailant.
Both R.R. and J.M. identified Johnson as the attacker in the photo lineup. Both men saw Johnson face-to-face at the time of the incident and immediately identified him. J.M. testified Johnson did not look "familiar" at the time of trial because his hair was longer and he was wearing different clothing. However, J.M. stated he was "very sure" about his photo identification of Johnson as the assailant. He said he could not mistake the eyes even though he had not noticed the tattoo. C.J. testified he could not see the attacker's right neck based on the way the attacker was standing during the encounter.
C.J., who initially identified someone else in the photo lineup, stated at the time of the photo lineup the person he identified may have been someone he had seen in the neighborhood. At trial, C.J. testified Johnson was the person he saw take cigarettes from J.M. and the person he saw running away from the center.
Johnson's counsel argued C.J.'s testimony about the number of times he had seen Johnson and the attacker in the neighborhood suggested two different men. However, C.J. clarified he was referring to Johnson as both the attacker and the defendant—the same person. C.J. stated he had seen Johnson around the neighborhood on many occasions.
In addition to the testimony from these eyewitnesses, the prosecution presented corroborating evidence from video surveillance cameras showing Johnson in the area of the attack both before and after the incident. He traveled northbound across the trolley tracks, away from the scene of the crime, just as the witnesses described. Whether wearing blue jeans or black pants or jeans, the video showed Johnson was the only person to cross the trolley tracks from south to north matching the general description of the assailant provided by the witnesses.
R.A. also corroborated the testimony of the eyewitnesses based on what Johnson told him while they were both in custody. R.A. said Johnson described where and how the crime occurred. Johnson stated he approached a group of men and asked for cigarettes and was unhappy he received USA Gold cigarettes, the same brand J.M. testified he handed the man. Johnson said he sliced a man in the face with a knife a number of times before running away. Johnson also said he had a "Volt" knapsack, just as witnesses described and as seen on video surveillance. When Johnson was arrested, he had a dark drawstring backpack.
We are also unpersuaded there is any evidence of unreliability based upon cross-racial identification based upon the fact A.H., an African-American witness, testified Johnson was not the assailant. R.A. testified Johnson was upset that he had been identified by some witnesses from the center. Johnson wanted someone to go to the center to intimidate the witnesses who identified him. Johnson said if the witnesses could not testify, he would "walk." A.H. was the one witness still living at the center at the time of trial. The jury was entitled to consider this evidence in weighing the credibility of A.H.'s testimony against those of the other three witnesses who identified Johnson as the assailant.
Considering the record as a whole, we conclude there was substantial evidence identifying Johnson as the attacker such that a reasonable trier of fact could find him guilty beyond a reasonable doubt. (Hubbard, supra, 63 Cal.4th at p. 392.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. DATO, J.