By David M. Greenwald
Executive Editor
Sacramento, CA – Elijah Johnson was tried and convicted of felony murder in a shocking killing organized by co-defendant David Nguyen, who personally shot and killed three victims during a burglary-robbery gone bad in 2016.
Attorney Stephen Greenberg in his opening appellant brief argues that Johnson, who was along for the initial crime, “was as shocked as everyone else by its brutal results.” Still, like Nguyen, he was convicted of special circumstance murders and sentenced to life in prison without parole.
Greenberg argued “under California’s new law of murder as accepted and implemented by the court and parties, the evidence was insufficient to support murder verdicts as to Johnson.”
The case was heard by the third Appellate Court for oral argument last week. Under the new law, Johnson’s murder culpability comes down to whether he was considered a “major participant” in the robbery and acted with “reckless indifference to human life.”
During oral argument, Greenberg acknowledged that Johnson was at the robbery scene and used a gun. However, he argued, “The use of a gun, with no possible way of knowing that there was a risk of a murder occurred, and somewhat elevated risk at the time… is not enough considering all the other circumstances… to support the judgments.”
He noted that by the time the murders occurred, “Johnson was already on his way back to the car.”
Instead, he argued that “defendant Nguyen bore almost exclusive responsibility for all three victims’ deaths and at the most, very minor culpability on Johnson’s part.” He added, “The thing that distinguishes him from Tucker and Taylor out in the getaway car is really that he went in the house.”
In fact, Greenberg argued, Nguyen “berated Johnson” and complained to Taylor and Tucker (also co-defendants, that “Johnson didn’t do anything. He didn’t help.”
Deputy Attorney General Jennifer Poe presented misleading evidence at the hearing, noting “inconsistent verdicts” and “the fact that the jury can still consider the fact that he pistol whipped Don” even though “they found that gun enhancement not true.”
At issue, she said, “is the sufficiency of the evidence on the felony murder” and whether he was a major participant and acted in reckless indifference.
“(T)he jury in this case found that the firearm allegation as to the robbery itself was true. So I think that’s an interesting distinction,” she said.
According to Poe, “Johnson took the gun willingly in the car from Nguyen and then held it in his waistband, according to his own testimony, as they went into this garage at the victim’s house.”
They stayed for 45 minutes, had the gun the entire time, and then “when they finally entered the house, he had the gun in his waistband,” she continued.
Justice Cole Blease asked for clarification, “So you, I thought I heard you say Johnson was holding the gun. You said in the waistband, was that the only way he held the gun?”
Poe responded, “According to the testimony, yes, in his waistband.”
Justice Blease continued, “I think Mr. Greenberg has argued and would argue, it’s not using a gun by holding it in your waistband.”
He also pointed out, “The pistol whipping was found not true by the jury. So there’s nothing left, but you’re saying there is more.”
Poe responded, “Holding the gun in the waistband in and of itself is intimidating the victims and that plays into both components of being a major participant and having reckless indifference.”
She also argued that, despite the jury finding to the contrary, “I do believe that this court can rely on Johnson’s statements in the car afterwards that he pistol whipped Dong.”
In their brief, the appellants disputed the claim of pistol whipping—which the jury found to be untrue. They noted that, after the robbery, Nguyen berated Johnson for his lack of action inside. “Nguyen again became angry and animated as he resumed challenging Johnson about having ‘had to take the gun from you.’”
Greenberg writes, “As Johnson recalled, in the heat of the moment — ‘it just came out’ — and, terrified of Nguyen, he claimed he’d pistol whipped someone. That wasn’t true; he said it just to ‘shut him up.’”
He also notes that Nguyen himself was skeptical of the claim, “Nguyen gave him a doubting look but didn’t say anything in response.”
Greenberg countered, adding in rebuttal time during oral argument, “Johnson’s use of the gun—if this court finds the use of a gun—was extremely limited, certainly in contrast with Nguyen, who committed all three murders in the shock of Johnson and the two women that were involved outside.”
“Looking at the evidence as a whole,” Greenberg said, referencing another court decision, “Did Johnson knowingly create a grave risk of death, and Johnson, on these facts looked at as a whole, didn’t create such a risk.”
Moreover, “the fact that a participant in an armed robbery could anticipate lethal force might be used is not sufficient, but that’s the most that we can say about Johnson on these facts, considering all the evidence, even in the light most favorable to the judgment.”
