People v. Clay CA3

BACKGROUND

We take the background from this court’s prior opinion in defendant’s direct appeal. (People v. Flemmings (June 27, 2003, C033687) [nonpub. opn.] (Flemmings).)2 Ernest Johnson entered a house where defendant, codefendant Larnell Flemmings, and Joe Barnes were located. Barnes suddenly put Johnson in a choke hold and pointed a gun at his head; defendant was also holding a gun. Defendant and Flemmings both asked, “Where’s the dope and money at?” (Id. [p. 3].) Flemmings went into another room, Johnson heard a gunshot, and then Flemmings returned with a gun. Larry Fort was later found with gunshot wounds to his neck and chest, resulting in paralysis. (Id. [pp. 3-4].) Andrew McKissack was sitting on the floor near Johnson. Johnson saw defendant point his gun at McKissack, say “Are you all about ready to do this?” (Flemmings, supra,

1 Undesignated statutory references are to the Penal Code.

2 We granted defendant’s motion to incorporate and take judicial notice of this prior decision. (Evid. Code, § 452, subd. (d).)

2 C033687 [p. 3), then heard a gunshot and saw McKissack fall over; Johnson did not see who fired the shot. Johnson fled, defendant pursued him, Johnson heard…