Opinion
A146344
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. AL-MON JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 11002520)
This is an appeal from judgment after a jury convicted defendant Al-Mon Johnson of first degree premeditated murder and arson. Defendant challenges the judgment on the grounds that there is insufficient evidence to prove first degree murder and the consecutive sentences imposed for first degree murder and arson violate Penal Code section 654's ban on multiple punishments. We affirm.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2014, a criminal information was filed charging defendant with first degree murder (§ 187, subd. (a); count one) and arson of the property of another (§ 451, subd. (d); count two).
A jury trial revealed the following evidence. In October 2009, Vanessa Herrera, age 23, was living in Sacramento with her childhood best friend, Lydia Jones. Herrera had moved in with Jones after leaving an abusive relationship with defendant. The night she left defendant, Herrera appeared at Jones's apartment scared, frantic and crying hysterically because defendant had choked her until she nearly lost consciousness. Jones was aware defendant had been violent towards Herrera in the past and, one night, she heard him on the speaker phone calling Herrera a "bitch" and "ugly."
Herrera stayed with Jones a month before moving back in with defendant. A week later, however, she returned, appearing neurotic and scared, explaining to Jones that defendant had continued to abuse her, once choking her for going out to a club with Jones. Again, Herrera stayed with Jones just a month before returning to defendant. Now pregnant, Herrera had been told by defendant this time would be different.
Herrera gave birth to a son on June 18, 2010. On August 28, 2010, Sacramento Police Officer Jared Kiser responded to a report of domestic violence, speaking with Herrera, who appeared upset and afraid. Herrera told Officer Kiser that, a week before, defendant had slapped her, bruising her face and bloodying her nose, but that she had been unable to report it earlier because defendant was too near. She wanted him arrested, but, by then, Officer Kiser could not see any injury to her face. Herrera and her son moved in with her brother, Matthew Herrera.
Herrera's police report prompted defendant's parole officer to try to make contact with him, but defendant could not be located for six weeks, at which point he was sent to San Quentin for absconding parole for 50 days. He was released in mid-January 2011.
On January 23, 2011, at 5:51 p.m., Herrera's phone texted defendant, "Hey, I love you. I hope everything works out for you." A text sent from defendant's phone shortly thereafter stated, "I love you too and stay a woman like you are, and I love you to death. And my son. I got you?"
Shortly thereafter, defendant's phone called Herrera's phone. About 15 minutes later, Herrera told her brother she had a quick errand to run and asked him to watch her son while she "stepped out for a minute." When Herrera, who had never spent a night apart from her son, had not returned by 11:30 p.m., her brother began to repeatedly call her phone; however, no one answered. At 1:27 a.m., cell phone towers indicated that Herrera's phone traveled outside of the Sacramento area, eventually entering San Francisco.
On January 24, 2011, at 3:00 a.m., G.W. was hanging out selling weed on a San Francisco street corner when he noticed a silver two-door car drive slowly up the street, make a U-turn, and enter Rose Alley. G.W. walked towards it, believing the driver was a customer. He saw defendant, wearing "big white shoes" on his "little skinny body," leave the vehicle and walk around to the trunk, before returning briefly to stick his head inside the vehicle. Seconds later, G.W. saw a "big orange glow" and noticed the car was on fire. The car's interior was, ultimately, "a complete burn," meaning it either melted, disintegrated or burned away.
The same day, after Herrera's car, a Pontiac Grand Am, was found burning in a San Francisco alley, defendant's parole officer called him. Defendant falsely claimed to be in Vacaville. Defendant was later found in San Francisco wearing white shoes and a white do-rag, items consistent with those worn by an individual captured by surveillance video from Rose Alley at the crime scene.
After initially denying involvement in Herrera's murder, defendant ultimately confessed. Defendant explained that he and Herrera were arguing over a text in her car, when he tried to leave. In response, defendant claimed Herrera repeatedly struck him and tried to prevent him from leaving. He warned her to stop, but she continued to hit and scratch him, even hitting him with a shoe and in the testicles. Eventually, defendant claimed, he blacked out and, coming to, shook her, grabbed her, and strangled her with both hands until she stopped breathing regularly. He then drove her car to his mother's house, but she was not home. Defendant, believing Herrera was still alive after hearing her take a few breaths, decided to take her to the hospital. However, he could not find a hospital in Sacramento, so he decided to drive to San Francisco. On the way, defendant stopped at his aunt's house and retrieved a blanket and gas can, and then stopped again to purchase gas. During the drive to San Francisco, defendant heard Herrera take another breath and saw her roll onto her stomach. Defendant explained that he later used the gasoline to set her car on fire because the other option would have been to turn himself in.
In phone calls from jail (which were recorded), defendant told one friend that there were no witnesses and that "[e]verything was torched and flamed," and in another call to the same number defendant stated that he had, prior to the murder, experienced homicidal fantasies and tendencies.
The medical examiner who responded to the crime scene, Dr. Judy Melinek, testified to finding a burned-out vehicle with a dead human body, blackened with soot and charred to a crisp. This body was "positioned in a weird way, kind of kneeling forward facing the front passenger's seat not seated in it but facing the opposite way about 180 degrees reversed facing the back of the vehicle but, leaning forward or down . . . ." There was a strong odor of petroleum "about the body and vehicle." The body, identified by thumbprint as Herrera's, was dressed in charred clothes, with pants down at the knees, vomit on a sweatshirt and shoes still on the feet. Second, third and fourth degree burns covered 84 percent of her body.
Dr. Melinek's autopsy revealed an injury to the right side of Herrera's head that was caused by a blunt object within four hours of her death. Herrera also had blood and a bite mark on her tongue. Dr. Melinek opined that the cause of death was "asphyxia due to probable strangulation, and other conditions contributing to death include[d] thermal burns to approximately 84 percent of the body surface area and blunt trauma." Dr. Melinek concluded Herrera had been strangled based on the damage to her tongue and larynx, as well as defendant's confession. In other words, homicide was the most likely manner of death, and strangulation the likely cause of death. She explained that strangulation causes death when blood flow and oxygen are cut off from the brain, which can take up to several minutes. If pressure is relieved, consciousness can be regained; if, however, pressure is applied to the carotid arteries for several minutes, long enough to cut off blood flow to the brain, death will occur.
Dr. Melinek further explained that a person can be alive, yet unconscious, even if breathing only sporadically. Specifically, "agonal breathing" occurs when a strangled person is not yet dead, but not breathing sufficiently to regain consciousness.
With respect to the fire's impact, Dr. Melinek noted that the current thinking among forensic scientists is that the superheated gases in intense fires clamp down on a person's airway, preventing breathing, while thermal burns quickly overwhelm, such that carbon monoxide is not inhaled into the lungs and bloodstream. In this case, her photographs of Herrera's throat show no soot in her trachea, redness of her larynx and blood below her vocal chords. She opined based on these circumstances that the trauma to Herrera's larynx was caused by either strangulation or inhalation of superheated gases; however, she could not "distinguish between the two." She noted that, due to Herrera's burns, she could not assess common injuries from strangulation such as pressure marks on the neck or burst blood vessels in the eyes. At the same time, the "unfixed lividity" on Herrera's chest led Dr. Melinek to opine that she died in her "found position," faced down on the passenger seat inside the vehicle. This lividity was also consistent with the conclusion that Herrera's time of death coincided with the time her body burned.
At the conclusion of trial, the jury convicted defendant of counts one and two, and the trial court thereafter sentenced him to a total prison term of 28 years to life with the possibility of parole. This timely appeal followed.
DISCUSSION
Defendant raises the following arguments on appeal. First, defendant argues the evidence is insufficient to prove he committed first degree murder, whether under a deliberate and premeditated murder theory or a felony-murder theory. Second, he argues the trial court's decision to impose consecutive terms for the murder count and arson count violates section 654's ban on multiple punishments because some jurors may have found him guilty of first degree felony murder, in which case arson would be the underlying felony that led to Herrera's death rather than a separate offense. We address each issue in turn below.
I. First Degree Murder.
Defendant argues that although there is ample evidence he killed Herrera by strangling her, there is insufficient evidence to prove that he did so with deliberateness or premeditation, or during the course of his commission of felony arson. As such, he argues, his conviction for first degree murder must be reversed.
In reviewing a claim of insufficiency of the evidence on appeal, the critical inquiry is 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. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) In making this inquiry, we must view the evidence in a light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. (People v. Barnes (1986) 42 Cal.3d 284, 303-304; People v. Matian (1995) 35 Cal.App.4th 480, 483-484.)
"Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Here, the jury was presented with the alternative theories of deliberate and premeditated murder and felony murder with arson as the underlying felony. Murder is defined by statute as the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A jury is entitled to find the defendant committed premeditated and deliberate first degree murder, as charged here, where there is evidence the defendant inflicted fatal force upon the victim while acting with intent to cause death after sufficient time, no matter how brief, to reflect on the consequences of his behavior. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 ["[p]remeditation and deliberation . . . can occur in a brief interval: ' " '[t]he test is not time, but reflection,' " ' as ' " '[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly' " ' "]; see also 40A Am.Jur.2d (2008) Homicide, § 251, p. 92 ["Deaths caused in the following manner are sufficient to infer the specific intent required for a conviction of murder: [¶] . . . [¶] the use of a deadly weapon upon a vital part of the victim's body"].)
First degree felony murder is likewise proscribed by statute: " 'All murder . . . which is committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery and burglary] . . . is murder of the first degree.' (Pen. Code, § 189.) The mental state required is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute. (People v. Roberts (1992) 2 Cal.4th 271, 316 [6 Cal.Rptr.2d 276, 826 P.2d 274] ['the consequences of the evil act are so natural or probable that liability is established as a matter of policy']; [citation]; 2 La Fave, Substantive Criminal Law (2d ed. 2003) § 14.5(b), p. 449.) 'Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances.' [Citation.]" (People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Having reviewed the record in this case, we find ample evidence to support defendant's conviction for first degree murder. As defendant himself notes, California courts recognize three types of evidence commonly present in cases of premeditated and deliberate murder: (1) planning activity, (2) preexisting motive and (3) manner of killing. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 294, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Using these factors as a guide, we find the following evidence of premeditation. First, there is circumstantial evidence suggestive of planning activity present in this record, including evidence that, on the evening before her murder, defendant texted Herrera that he "love[d her] to death," and then called her. Moments later, Herrera left the house, telling her brother she had a brief errand to run (from which she never returned), reflecting a ruse by defendant to bring her to him. In addition, there is evidence that, after defendant strangled Herrera, but while he could still occasionally detect her breathing, he stopped en route to San Francisco to pick up a blanket, gas can, and gasoline. Admittedly, he then used these items to set Herrera and her belongings afire in her vehicle. Finally, defendant told an unnamed person in a recorded call from jail that he had, prior to the killing, had homicidal fantasies.
These factors provide a useful framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations, but are not required elements of the offense. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 294.)
Moreover, this same evidence demonstrates that defendant's manner of killing involved premeditation. (See People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 294.) As just mentioned, there is evidence that when he retrieved the blanket and gas can from his aunt's house and purchased gas at a nearby station, he could still detect her breathing, albeit only sporadically. Defendant later acknowledged in a custodial interview that, by setting her body on fire, he sought to avoid turning himself in to police. Thus, even accepting defendant's suggestions that he strangled her in rage and self-defense after she brutally attacked him, such suggestions do not preclude an inference of premeditation, particularly where, as here, the defendant has a long prior history of abusing the victim: " ' "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." ' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 518.)
Finally, there can be no credible doubt that the record establishes defendant had "a ' "plausible motive" ' " for Herrera's murder—the fact that she had reported a prior incident of his domestic violence to police that resulted in his recent imprisonment in San Quentin, and that she had expressed to him her intent to end their romantic relationship, telling him in a text from her phone to his on the day in question, "I love you," and "I hope everything works out for you." (People v. Thomas, supra, 2 Cal.4th at pp. 518-519.)
Accordingly, on this record we are satisfied the evidence reasonably justified a jury finding that defendant formed and acted on a deliberate plan to kill. As stated above, on appeal, we presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence (People v. Medina (2009) 46 Cal.4th 913, 919), and only reverse if it appears " ' "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Here, based on the evidence described above, there is indeed at least one valid hypothesis (deliberate and premediated murder) supported by substantial evidence by which the jury could have properly found against defendant on the first degree murder count. (Id. at p. 358 ["Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal"].) The jury's verdict therefore stands.
Given the substantial evidence that defendant committed deliberate, premeditated murder, we need not consider for purposes of this appeal whether the evidence also supports an inference that the killing occurred in the course of his commission of felony arson. (§ 189.) In any event, however, we would have no trouble drawing such a conclusion. There is plenty of evidence in this record to support the alternative finding by the jury that defendant killed Herrera when he set fire to her vehicle, rather than, prior to that, when he strangled her. Defendant himself acknowledged that he could hear Herrera take several additional breaths after he strangled her, and Dr. Melinek gave an unchallenged expert opinion that, based on her forensic examination of Herrera's body, the cause of death was either strangulation or inhalation of superheated gases from the fire. As explained above, we reverse a defendant's conviction only if it appears " ' "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio, supra, 43 Cal.4th at p. 357.) --------
II. Imposition of Consecutive Sentences.
Defendant's final argument is that the consecutive sentences imposed for first degree murder and arson violate section 654's ban on multiple punishments. Defendant reasons that because the prosecutor argued to the jury that setting the vehicle afire was the method he used to kill Herrera, the arson count was incidental to his commission of felony murder and, as such, should not have been separately punished. While he acknowledges the prosecutor argued to the jury in the alternative that he committed premeditated and deliberate murder, and then set the vehicle afire to destroy evidence, he points out the jury did not specify any particular theory when convicting him of both first degree murder and arson, such that it cannot be ruled out the jury convicted him on felony-murder grounds.
"The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. (3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, § 1382, p. 1625.) The 'act' necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a 'course of conduct' or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135, fn. omitted.)
"The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them." (People v. Liu, supra, 46 Cal.App.4th at pp. 1135-1136.)
Returning to our case, we conclude there was no error in imposing consecutive sentences on defendant for his arson and murder convictions. There is substantial evidence that the objectives of his two crimes were different. One objective was to murder Herrera, while the other objective was to destroy evidence relating to her murder. Indeed, defendant told a friend in a recorded phone call from jail that there were no witnesses to his crime and "[e]verything was torched and flamed." In addition, he admitted to police that he used gasoline and matches to set Herrera's car on fire because the alternative would have been to turn himself in. Accordingly, we conclude the evidence in this record that defendant harbored multiple, independent criminal objectives was sufficient to support separate sentences for the two crimes, even if other evidence in the record supported the prosecutor's alternative theory that the two crimes were parts of an otherwise indivisible course of conduct leading to her murder during defendant's commission of felony arson. (People v. Williams (1988) 201 Cal.App.3d 439, 445; People v. Liu, supra, 46 Cal.App.4th at p. 1136.)
Accordingly, we affirm the trial court's decision to impose separate consecutive sentences for arson and first degree murder after finding defendant harbored distinct motives for committing these crimes. (People v. Miller (1977) 18 Cal.3d 873, 886-887.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Siggins, J.