People v. Gunning CA1/5

I. BACKGROUND

Gunning was charged by information with the premeditated first degree murder of Johnson on April 25, 2011. (Pen. Code, § 187, subd. (a).)1 It was alleged that he personally and intentionally discharged a firearm while committing the crime, causing great bodily injury and death. (§ 12022.53, subds. (b), (c), (d).) The case was tried to a jury.

1 All further undesignated statutory references are to the Penal Code.

1 A. Prosecution Witnesses In April 2011, Renee Rogers2 was living in a house on Pinenut Way in Antioch (the Pinenut house) owned by Ron Savage, who lived there with Renee and Johnson, his stepson. Renee had been Gunning’s girlfriend “off and on” from about May 2009 to March 2011. Gunning sometimes lived with Renee at the Pinenut house. Gunning also had another girlfriend named Stacey Rabensteine who lived in a nearby house on Trembath Lane in Antioch (the Trembath house or Rabensteine’s house). In early March 2011, Johnson and Gunning got into a fistfight at the Pinenut house, after Gunning had learned that Renee and Johnson had had a sexual relationship. Savage had to break up the fight twice before Gunning left the house with a bloody nose.…