Filed 8/24/20 P. v. Johnson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                                        G056278

           v.                                                          (Super. Ct. No. 17ZF0001)

 KENNETH JOHNSON,                                                      OPINION

      Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed in part, and remanded with directions.
                    Sheila Quinlan, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for
Plaintiff and Respondent
                                      *                  *                  *
               A jury found appellant Kenneth Johnson guilty of conspiracy to sell
methamphetamine (Pen. Code, §§ 182, subd. (a), 11379; all further statutory citations are
to the Penal Code, unless otherwise stated), conspiracy to sell heroin (§§ 182, subd. (a),
11352), and conspiracy to commit extortion (§§ 182, subd. (a), 518), and it found true
related gang allegations. In a bifurcated proceeding, the trial court found true three of
five prior strike conviction allegations, and two of four prior serious felony conviction
allegations. The trial court sentenced Johnson to a total term of 35 years to life,
consisting of a third-strike term of 25 years to life for conspiracy to sell
methamphetamine, and concurrent terms of 25 years to life on the other two conspiracy
counts. The court also imposed two five-year terms for the prior serious felony
convictions.
               Johnson contends the evidence was insufficient to support his conviction
for conspiracy to commit extortion. We conclude the evidence showed Johnson and two
other persons agreed to collect a $2,500 “fine” imposed on the victim D.R. through the
wrongful use of force and therefore substantial evidence supports the conviction for
conspiracy to commit extortion.
               In a related argument, Johnson contends his trial counsel was ineffective for
failing to object to admission of evidence concerning D.R.’s death because the death of
an unrelated victim was irrelevant and unduly prejudicial. In light of our conclusion D.R.
was the target of the conspiracy to commit extortion, the evidence of D.R.’s death was
highly relevant. Johnson therefore has not shown trial counsel was ineffective.
               Johnson further contends the trial court violated state law and his Fourth
Amendment right to due process by admitting expert testimony of case-specific facts that
were beyond the expert’s personal knowledge and expertise in violation of People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez). Because Johnson failed to object to the expert
testimony on hearsay, due process or Sanchez grounds at trial, he forfeited this claim of



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error. Even if not forfeited, his claim is unavailing because the expert did not relay any
case-specific hearsay.
              Finally, Johnson contends the matter should be remanded to the trial court
to exercise its newly granted discretion under Senate Bill No. 1393 (2017-2018 Reg.
Sess.) (Senate Bill No. 1393) whether to strike one or both of the two prior serious felony
enhancements. We agree. Accordingly, we affirm Johnson’s convictions and remand the
matter for the trial court to consider whether to impose any of the prior serious felony
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enhancements.


                                             I
                                 FACTUAL BACKGROUND
              The Aryan Brotherhood (“A.B.”) is the dominant white racist gang in the
California prison system. Although known as the Aryan Brotherhood, the gang also is
referred to by slang names such as “Alice Baker.” A fully made or fully-fledged member
of the A.B. is called a “Brother.” The primary activities of the A.B. are aggravated
assault, murder, narcotics dealing and extortion. Johnson is a member of the A.B., and in
July 2016, he was serving a state prison sentence.
              Public Enemy Number 1 (“Pen1”) is A.B.’s primary associate gang. A
Pen1 member cannot refuse an order by an A.B. member. In July 2016, William Shoop
and Matthew Hall were Pen1 gang members, with the monikers “Buss” and “Cyco,”
respectively. Both men were not in custody. Hall bragged to a person named “Ronnie”
that Hall was a fully made member of the A.B. and that he committed crimes for the gang
in Orange County. He stated: “I’m that Alice Baker. I’m that 260 pounds of your worst
nightmare. I’m that go down to Orange County and make three motherfuckers find their


1
       We deny Johnson’s application to review confidential material filed on January
22, 2019. The confidential material is not relevant to the issues on appeal.

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rocks or pay the consequences. I’m that Brother of Ronnie and Brother Billy. I’m that
get shit done without waiting.”
              In July 2016, Johnson imposed a $2,500 fine on an unnamed individual.
On July 5, 2016, Johnson texted Shoop’s phone number to Hall. The next day, Johnson
sent a text message to Shoop, which stated: “Just so you are crystal clear on this and not
fuck yours off, [ ]that 2500 fine that was imposed on that dude, [ ] is AB business and not
you or any other person can undo it or anything else. [ ] Cyco will take charges of how to
handle it and none else. [ ] got it?” Shoop replied, “Got it” and “Thank you.”
              On July 7, 2016, Hall texted Shoop, telling him to “retrieve that phone from
that f****** n***** to anything else you may have reacquired since our last visit and
then bust him in the mouth if you feel like it.” On July 10, Shoop texted Hall, stating:
‘I[’]ll be calling you in a couple of hours with all you asked.” Minutes after sending the
text, Shoop texted the victim D.R., stating, “Don’t forget to bring that phone up[.]”
              On July 13, 2016, at an Anaheim motel, Shoop accidentally shot D.R. in the
left shoulder, killing him. Christine Maier, Shoop’s mistress and D.R.’s friend, testified
the two men initially had an antagonistic relationship, but their relationship “was
gradually getting better and better.” Maier also testified that she and D.R. sold heroin out
of a Costa Mesa residence. She admitted she helped Shoop download D.R.’s drug
contacts off D.R.’s phone.
              Several of D.R.’s friends testified he was stressed the week before his
death. One testified that during this time period D.R. shortchanged him on several drug
sales. Another friend testified D.R. stated he was “in a lot of trouble,” and needed to
“make some more money before he can even make homeboy’s money back.”




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                                              II
                                        DISCUSSION
A. Substantial Evidence Supports the Conviction for Conspiracy to Commit Extortion
              Johnson concedes the evidence showed he had the authority to, and did in
fact, impose a $2,500 fine. He also concedes that around the same time, the victim was
stressed and appeared to need money. However, Johnson argues there was insufficient
evidence to show he imposed the $2,500 fine on the victim, as opposed to some unknown
individual.
               “A conspiracy is an agreement by two or more persons to commit any
crime.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024; see § 182, subd. (a)(1).) “‘A
conviction of conspiracy requires proof that the defendant and another person had the
specific intent to agree or conspire to commit an offense, as well as the specific intent to
commit the elements of that offense, together with proof of the commission of an overt
act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’
[Citations.]” (People v. Johnson (2013) 57 Cal.4th 250, 257.) The elements of the
offense of extortion are: “(1) A wrongful use of force or fear, (2) with the specific intent
of inducing the victim to consent to the defendant’s obtaining his or her property, (3)
which does in fact induce such consent and results in the defendant’s obtaining property
from the victim.” (People v. Hesslink (1985) 167 Cal.App.3d 781, 789.) “‘Evidence is
sufficient to prove a conspiracy to commit a crime “if it supports an inference that the
parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy.”’ [Citations.]” (People v. Maciel (2013) 57 Cal.4th 482, 515-516.)
              Here, the text messages show there was an agreement among Johnson,
Shoop and Hall to use force or fear to collect the $2,500 A.B. fine from an individual.
Johnson gave Hall Shoop’s phone number, and he told Shoop that Hall would be in

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charge of the collection of the fine. Hall bragged that he was “260 pounds of your worst
nightmare” and that he would “make . . . motherfuckers find their rocks or pay the
consequences.” Hall also specifically told Shoop that Shoop could “bust [the extortion
victim] in the mouth if you feel like it.”
              Contrary to Johnson’s contention, the evidence also was sufficient to show
the extortion victim was D.R. In his text message, Johnson warned Shoop that Shoop
could not “undo” the fine. From this text message, the jury could infer that Shoop was
friendly with the extortion victim and wanted to lift the A.B. fine. Maier testified Shoop
initially had an antagonistic relationship with D.R., but the relationship gradually became
amicable.
              Minutes after Hall texted Shoop to “retrieve” the extortion victim’s phone,
Shoop texted D.R. and reminded him not to forget his phone. The proximity of the text
messages indicates D.R. was the extortion victim.
              The week before his death, D.R was stressed for money to pay a
“homeboy’s money.” A jury reasonably could infer D.R. was trying to pay the A.B. fine.
              Finally, D.R. was found dead in an Anaheim motel weeks after the A.B.
fine was imposed, and Shoop was the shooter. The jury could conclude, as the prosecutor
argued, that the shooting occurred during D.R.’s attempted armed robbery of another
drug dealer to raise money to pay the fine. Even if the jury found no armed robbery
occurred, it could conclude Shoop tried to collect money from D.R. by brandishing his
firearm and accidentally shot D.R. In sum, there was substantial evidence to support
Johnson’s conviction for conspiracy to commit extortion against D.R.
B. Johnson Has Not Shown His Trial Counsel Was Ineffective
              Johnson contends his trial court was ineffective for failing to object under
Evidence Code section 352 to evidence of D.R.’s death, arguing D.R.’s death was
“irrelevant” because D.R. was not the extortion victim.



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              Because we have concluded D.R. was the extortion victim, the facts and
circumstances of his death were highly relevant. Of course, trial courts may exclude
relevant evidence if its unduly prejudicial nature outweighs any probative value. Here,
the description of the shooting and death was not inflammatory, consumed a brief amount
of trial time, and was not likely to confuse the jury. In sum, the probative value of the
evidence of D.R.’s was not substantially outweighed by any undue prejudice. Johnson
therefore has not shown his trial counsel was ineffective for failing to object to evidence
of D.R.’s death.
C. Sanchez Error
              1. Relevant Background
              In his opening statement, the prosecutor sought to play a video, found on
Hall’s cell phone, describing how Hall finds and intimidates people to pay him. The
prosecutor explained he believed under Sanchez, he needed to introduce the evidence to
support his gang expert’s case-specific opinion that Hall was an Aryan brotherhood tax
collector. Defense counsel objected on Evidence section 352 grounds, arguing the
inflammatory nature of the video substantially outweighed by its probative value. The
trial court precluded the prosecutor from playing the video during opening statements,
but allowed the prosecutor to describe in “general terms” that Hall was a tax collector. It
stated the prosecutor could say, “We have got some things off his phone that indicate that
he is a tax collector.” It deferred ruling on the admissibility of the video during the
prosecution’s case-in-chief.
              During trial, the parties revisited the issue. The prosecutor sought to
introduce the video, and Johnson objected under Evidence Code section 352. The court
prohibited the prosecutor from playing the playing of the video, but ruled that the “actual
content … can be introduced” and the gang expert could base his opinion on the video.
              The prosecutor then elicited the following testimony from the gang expert:
              “Q. Did you watch that video?

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              “A. Yes, I did.
              “Q. In very summary terms, did it describe some of Mr. Hall’s methods for
collection and enforcement?
              “A. Yes, it did.
              “Q. Based on your viewing of that video as well as your reading of the
[chat] message we just talked about, in your opinion is Matt Hall a tax collector?
              “A. Yes.
              “Q. What’s that, generally speaking?
              “A. Tax collector would be an enforcer for the Aryan Brotherhood prison
gang that would collect fines under threat of violence.”
              2. Analysis
              Johnson contends the trial court violated state law and his federal due
process rights by admitting expert testimony of case-specific facts that were beyond the
expert’s personal knowledge in violation of Sanchez, supra, 63 Cal.4th 665. Specifically,
Johnson contends the trial court erred in admitting expert testimony on the Hall video.
However, Johnson never raised hearsay or due process objections to the expert’s
testimony at trial. Nor did Johnson argue that admission of the expert testimony violated
Sanchez. As a result, Johnson forfeited his claim of error. (People v. Stevens (2015)
62 Cal.4th 325, 333 [“the failure to object to the admission of expert testimony or hearsay
at trial forfeits an appellate claim that such evidence was improperly admitted”]; see also
People v. Perez (2020) 9 Cal.5th 1, 14 [“an objection under Evidence Code section 352 is
completely different from a Sanchez objection”].)
              Even if not forfeited, Johnson’s claim is unavailing. The expert did not
relay any statements made by Hall, but instead summarized the general subject matter of
Hall’s statements. Thus, the expert did not relay any case-specific hearsay. There was no
Sanchez error. (See Sanchez, supra, 63 Cal.4th at p. 685 [“Any expert may still rely on
hearsay in forming an opinion, and may tell the jury in general terms that he did so.”].)

                                             8
D. Resentencing under Senate Bill No. 1393
              Section 667, subdivision (a), requires a trial court to impose a five-year
consecutive term for “[a]ny person convicted of a serious felony who previously has been
convicted of a serious felony,” and section 1385, subdivision (b), previously prohibited a
trial court from striking that punishment. On September 30, 2018, the Governor signed
Senate Bill No. 1393 which, effective January 1, 2019, amended sections 667,
subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to
strike or dismiss for sentencing purposes a prior serious felony conviction. (Stats. 2018,
ch. 1013, §§ 1-2.)
              The Attorney General concedes Senate Bill No. 1393 applies to Johnson,
but contends remand would be a futile act, noting the trial court denied Johnson’s motion
to strike his prior strike convictions. However, whether to strike a prior strike allegation
and whether to strike a five-year enhancement would result in different sentences. While
we recognize the trial court’s ruling and statements at sentencing suggest it might not
exercise its discretion to strike defendant’s prior serious felony enhancements, this does
not foreclose the possibility the trial court would have stricken the enhancements if it had
the discretion to do so. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111.)
Accordingly, remand is appropriate to allow the trial court to exercise its discretion to
determine whether to strike one, both or none of Johnson’s prior serious felony
enhancements under Senate Bill No. 1393.




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                                           III
                                      DISPOSITION
             The convictions are affirmed. The matter is remanded for the trial court to
consider whether to strike the two prior felony enhancements.




                                                 ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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