People v. Johnsen
Cal.
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN DAVID JOHNSEN,
Defendant and Appellant.
S040704
Stanislaus County Superior Court
R239682
February 1, 2021
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban and Ikola* concurred.
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. JOHNSEN
S040704
Opinion of the Court by Liu, J.
A jury convicted defendant Brian David Johnsen of first
degree murder (Pen. Code, § 187; all undesignated statutory
references are to the Penal Code), attempted murder (§ 664),
two counts of robbery (§ 212.5), three counts of burglary (§ 459),
and five counts of solicitation to commit murder (§ 653f). The
jury found true the special circumstances that Johnsen
murdered Juanita Bragg during a robbery and a burglary.
(§ 190.2, subd. (a)(17)(A), (G).) The jury also found true that the
murder was perpetrated by personal use of a deadly weapon
(§ 12022, subd. (b)) and that the attempted murder count was
committed with personal use of a deadly weapon and resulted in
great bodily injury (§§ 12022, subd. (b), 12022.7). At the close of
the penalty phase, the jury returned a verdict of death. Johnsen
moved for a new trial and to modify his sentence to life without
the possibility of parole. (§ 190.4, subd. (e).) The trial court
denied these motions and sentenced Johnsen to death.
Johnsen’s appeal is automatic. (§ 1239, subd. (b).) We affirm
the judgment.
I. FACTS AND BACKGROUND
A. Guilt Phase
1. Prosecution Case
Sylvia Rudy lived alone in a residential complex owned by
her employer. Johnsen and his mother lived in the duplex just
behind Rudy’s home. There were openings on each side of the
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fenced patio area of Johnsen’s home, which allowed for
unimpeded access to Rudy’s home.
(a) September 3, 1991
Rudy went to work in the morning. During lunchtime,
Rudy returned home to cash a check for her adult daughter,
leaving the cash on Rudy’s dining room table before returning to
work. Around 3:00 p.m., Rudy’s daughter arrived at Rudy’s
home to discover the front door wide open and the cash on the
table missing. When Rudy came home, she found a large hole
in the glass window of her back bedroom. Her VCR and her
jewelry, which Rudy kept in her bedroom dresser, were missing.
(b) February 15, 1992
Around 10:00 a.m. on February 15, Johnsen called his
friend, Mickey Landrum, to ask him to come to Johnsen’s house
and help move a television set. Landrum arrived around 2:30
p.m., at which point Johnsen drew Landrum’s attention to the
television located inside Rudy’s home. Landrum refused to help
steal Rudy’s television. Johnsen then showed Landrum various
items he had taken from Rudy’s home, including a microwave,
boom box, portable bar, china plates, and jewelry. Johnsen
informed Landrum he had broken into Rudy’s home before.
Either at that time or a few days later, Johnsen also showed
Landrum 10 keys attached to a key ring he had taken from
Rudy’s home, one of which Johnsen surmised was Rudy’s home
key.
When Rudy returned home for the day, she noticed that
her microwave and china plates were missing. She also noticed
that the window in her back bedroom was broken. Rudy later
realized that her liquor, boom box, and answering machine were
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missing. Her portable bar, camera, spare car keys, and spare
front door key were also missing.
Rudy attempted to call 911 from her kitchen telephone,
but the phone’s internal components had been disassembled.
She then tried to call 911 from the combination clock-radio-
telephone in her bedroom, but it was missing.
(c) February 18–19, 1992
On February 18, Landrum spent the night at Johnsen’s
house, where he and Johnsen drank, smoked pot, and snorted
“crank” (i.e., crystal methamphetamine) together. On the
morning of February 19, a Modesto Police Department detective
arrived at Johnsen’s home and took Johnsen in for questioning
for an unrelated matter. At Johnsen’s insistence, the detective
allowed Landrum to stay at the residence.
Shortly thereafter, Landrum received a call from Johnsen,
who had been taken to the Modesto jail. Johnsen asked
Landrum to hide all the items he had taken from Rudy because
he was worried that the police would soon get a search warrant
and find Rudy’s stolen property. Landrum acceded to Johnsen’s
request and placed all the stolen goods into a truck. Landrum
then drove the items to a friend’s house. Landrum’s friend
refused to take possession of the items for safekeeping.
Landrum then phoned Johnsen’s mother. He informed
her that Johnsen had left with a detective and that he had taken
the items from Johnsen’s home at his request. Landrum and
Johnsen’s mother met up for dinner at a pool hall near Johnsen’s
home. Afterward, they drove separately to Landrum’s friend’s
house so they could transfer the items into Johnsen’s mother’s
car.
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Over the next few days, Johnsen’s mother kept the items
in the trunk of her car. She then asked her father, Johnsen’s
grandfather, to keep several of the items in his garage, including
the microwave, portable bar, china plates, boom box, and
possibly an answering machine. At some point, Johnsen’s
grandparents told her that they no longer had space, so
Johnsen’s mother moved the items to her aunt and uncle’s home.
At trial, Johnsen’s mother testified that she did not know
that the items were stolen at the time. Despite her lack of
awareness, she was suspicious about the origin of the items
because Johnsen had told her, “As far as you know, I got it either
at a garage sale or it was given to me.”
(d) February 28 – March 1, 1992
On the morning of Friday, February 28, Rudy went to
work. After work, she left Modesto for a weekend trip to Pebble
Beach with friends without first returning home. Some time
that weekend, Juanita Bragg and Leo Bragg, Sr., came to stay
at their daughter Rudy’s home (to avoid confusion, Leo, Sr., will
be referred to in this opinion as Leo, and his son, discussed post,
will be referred to as Leo, Jr). The Braggs lived in Las Vegas,
but they came to Modesto every year to visit Rudy. So they could
get into her home, Rudy left a spare key for them in a furnace
just outside her home. The Braggs arrived at Rudy’s home some
time before 7:00 p.m. on Saturday, when they spoke with Rudy’s
daughter over the phone.
On Saturday, February 29, Landrum spent some of the
evening at Johnsen’s home, where he helped Johnsen and his
mother prepare to move out of their home. Johnsen and
Landrum also drank, smoked pot, and used methamphetamine
together. Between 9:00 to 10:30 p.m., Landrum drove to his
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mother’s home in the same city, where he spent the remainder
of the night. The next morning, around 8:30 a.m., Johnsen and
his mother began moving out of their apartment. Johnsen was
moving into a Modesto apartment with Landrum while
Johnsen’s mother was moving to San Jose. Landrum arrived at
Johnsen’s home around 10:00 a.m. to help them move.
Later that day, around 3:00 p.m., Rudy returned home.
She spotted her parents’ car parked in her carport. After
parking her own car, Rudy unlocked the front door’s deadbolt
lock and entered her home. She immediately noticed that the
house was quiet and the curtains were closed.
Rudy looked into the guest bedroom and saw her parents
lying in bed. At first, Rudy assumed they were napping. When
she entered the room, she heard Leo moaning. As Rudy
approached him, he reacted fearfully, and she saw that the left
side of his head appeared to be bashed in. Rudy then checked
on Juanita. There was blood on Juanita’s hair, and her body felt
cold and damp. Rudy attempted to call 911, but the bedroom
phone was missing and the line to the kitchen phone had been
severed. Rudy was eventually able to call the police from a
neighbor’s home.
By the time the police and paramedics arrived, Juanita
was dead. Dr. William Ernoehazy, a pathologist, arrived around
6:00 p.m. to analyze her body, which he found lying facedown on
one side of the bed. He determined that Juanita had suffered
over 15 blunt force injuries to her head, resulting in several skull
fractures penetrating into her brain. He also identified six stab
wounds on her neck and abdomen, and one that penetrated her
airway. There were cuts on her wrist, hands, and fingers.
Considering Juanita’s injuries, Dr. Ernoehazy concluded she
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died from blood loss from the injuries on the front, top, and back
of her head caused by a ball peen hammer. Based on her body’s
lividity and the rigidity in her neck, upper extremities, and
knees, Dr. Ernoehazy estimated that Juanita died between
10:00 a.m. and noon and estimated that she was attacked two to
three hours earlier.
The police found Leo alive but badly injured. He was
treated at a nearby hospital emergency room. A neurosurgeon
treated the injuries to Leo’s neck, head, and abdomen.
Physicians removed skull fragments and a clot from Leo’s brain,
and sutured Leo’s lacerated inferior mesenteric vein and two
holes in Leo’s large intestine and colon. According to his
treating physicians, Leo would have died without this lifesaving
surgery.
Detective Jon Buehler found no signs of forced entry into
Rudy’s home. All the windows and sliding glass doors remained
closed, still secured with dowels. Detective Buehler concluded
the only other entryway into Rudy’s home was her front door,
though there was no indication the door had been opened other
than through ordinary use of a key. A locksmith confirmed that
neither the door’s deadbolt lock nor knob lock had been picked.
Inside Rudy’s home, Detective Buehler discovered a pair
of pantyhose consistent with the brand she wore, but irregularly
located on her living room armchair. Forensic analysis found
inside the pantyhose a four-inch clipped blond hair originating
from a Caucasian individual. Through a polymerase chain
reaction (PCR) test, it was also determined that the hair had a
DQ-Alpha type of 2,4, common among 9 percent of the
population. The lab testing destroyed the hair, so the hair itself
was not introduced as an exhibit at trial. Detective Buehler also
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found a bloody knife in a knife block in Rudy’s kitchen. DNA
analysis concluded that the blood on the knife had a DQ-Alpha
type of 1.3,2, the same type as Juanita’s and common among 3
percent of the population.
In the evening of March 1, Johnsen brought a paper bag
with two phones and a calculator to the apartment of Linda Lee,
his new neighbor. Lee was with a friend at the time. Johnsen
was shaking and appeared scared and nervous. He asked Lee
to “get rid of [the bag] where no one would ever see it again.”
After Johnsen left, Lee told her friend to go look for Johnsen, but
her friend could not find him. Lee’s friend then went to
Landrum’s mother, who lived two doors down to see if she would
take the paper bag. His mother agreed to do so. A few weeks
later, Johnsen sold a combination clock-radio-telephone to Lee.
(e) Police Investigation
On March 10, Rudy enlisted a moving company to pack
her belongings at her home. During the move, a company
employee informed Detective Taylor, who was at Rudy’s home
that day, that he found a bent five-inch kitchen knife covered in
dried blood inside a dried flower vase in the guest bedroom. Lab
testing found that the caked-on blood contained a mix of
phosphoglucomutase (PGM) types matching Juanita’s and Leo’s
blood. Because Landrum has the same 2+1+ PGM type as
Juanita, he could not be categorically ruled out as a contributor
to the blood on the knife.
Sometime between March 1 and March 25, Johnsen and
Landrum gave or sold Jorge Romo a pair of yellow dishwashing
gloves. Romo later gave the gloves to the police, and blood on
the gloves was found to have a DQ-Alpha type of 1.3,2, the same
as Juanita’s.
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About two weeks after March 1, Johnsen and Landrum
drove to San Jose to visit Johnsen’s mother and grandparents.
On the drive, Johnsen attempted to hand Landrum the front
door key to Rudy’s home. When Landrum refused to take the
key, Johnsen threw it out of the car window along with a ball
peen hammer inside a blue sweatshirt. No home key or hammer
was ever recovered by the police.
On March 25 or 26, Landrum accompanied Detective
Jolene Gonzales to his mother’s home, where Detective Gonzales
took a calculator, jewelry, and three telephones into evidence. A
few days earlier, Landrum’s mother asked Landrum to take the
suspicious goods away from her home, which she received from
Lee and Lee’s friend, who had in turn received them from
Johnsen. Rudy identified two of the phones as hers and believed
the third phone was the one her parents traveled with. Rudy
also said the jewelry was hers and the calculator was owned by
her father.
On March 26, Detective Taylor contacted Johnsen’s
mother about the goods Johnsen asked Landrum to hide.
Johnsen’s mother initially said she had no knowledge of the
items, though she later conceded she kept them a secret because
she “didn’t want to hang her own son.” The detectives picked up
Johnsen’s mother, and they went to her aunt and uncle’s home,
where they picked up a box of china plates, a boom box, a video
recorder, a portable bar set, and a microwave. Rudy identified
these as her property. An evidence technician discerned Rudy’s
daughter’s fingerprints on the china plates.
(f) Post-arrest Communications
Johnsen was arrested on March 26. Johnsen called Lee
from jail, and he learned that she had turned over to Detective
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Grogan the combination clock-radio-telephone he (Johnsen) had
sold her. Upon hearing this, Johnsen responded, “I’m done for
now.” Johnsen asked Lee if she would pretend to have memory
loss during future conversations with the police since they
“couldn’t do anything” to her. Informing her that he had a key
to Rudy’s home because his mother used to rent that unit,
Johnsen inquired whether Lee knew of anyone who would break
into Rudy’s home while he was in jail to draw suspicion away
from him. Rudy later identified the combination clock-radio-
telephone as hers.
From jail, Johnsen also called Chester Thorne, Lee’s
boyfriend and a recent acquaintance of Johnsen’s. Johnsen
inquired if Thorne knew of anyone who would be willing to
“whack” Landrum and an unspecified woman, which Thorne
understood to mean “kill.” Johnsen wanted Landrum and the
unspecified woman killed with a hammer and stabbed, and for
the crime scene to be as bloody as possible. Johnsen also wanted
the person to place a telephone and other items into a dumpster.
According to Johnsen, these steps would cause the police to
think that the person who assaulted the Braggs remained at-
large, “still out there killing people.”
Although Thorne did not intend to help Johnsen, he
wanted to find out “for sure” whether Johnsen “really did kill
them two old people,” so he promised to look into it. When
Johnsen asked Thorne if he would commit the requested
murders in return for a “favor,” Thorne refused, saying he would
find someone else. Thorne did not tell the police about this call
because there was a warrant out for his arrest for an unrelated
matter, but he also took no steps to carry out Johnsen’s request.
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At some point, Thorne was jailed for receiving stolen
property, unrelated to the offenses at issue here. While Thorne
was incarcerated in the Stanislaus County jail, Johnsen passed
him notes. Thorne copied one of Johnsen’s notes in his own
handwriting before handing the note back to Johnsen. That
copied note instructed Thorne to inculpate “Mouse” (i.e.,
Landrum) for the crimes at Rudy’s home, provided a set of
“facts” for Thorne to rely on, and advised Thorne to tell the police
Landrum “said he would kill you & Linda if you ever tell.”
Thorne also testified about another of Johnsen’s notes, in
which Johnsen instructed Thorne and Lee as follows:
“When Linda [Lee] is asked (on the stand) what it
was that I said to her when I handed her the bag of
property, she must not remember what I said to her.
. . . [E]ven when [the police officer] remind[s] her,
she still must have no memory of the words I said!
No matter what! I will protect you and Linda till the
day I die. I expect the same from both of you. . . .
Remember, if you or Linda is asked a question, and
you know the truth will hurt me, lose your memory!”
Thorne eventually pleaded guilty to various unrelated
crimes, and in exchange for his truthful testimony against
Johnsen, he received a reduced jail sentence of 16 months.
(g) Confession to Eric Holland
From June to August 1992, Johnsen was housed in a
Stanislaus County jail cell next to Eric Holland. Holland had
previously been convicted of counterfeiting and forgery in
federal court, and he also faced several pending felony charges
for forgery and auto theft in several counties.
According to Holland, Johnsen repeatedly tried to
convince nearby inmates to kill Landrum and Landrum’s
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girlfriend. Holland “wanted to get [Johnsen] to shut up,” so
Holland fabricated “a colonel in San Diego that could take care
of it” for “a lot of money.” After hearing this, Holland thought
Johnsen would “blow his smoke” and “that would be the end of
it,” but Johnsen offered to pay the made-up contract killer with
his Harley-Davidson motorcycle, some commissary credit, and
any unconditional favors Holland might need in the future.
Holland told Johnsen “the colonel owed him a favor worth
$50,000” and therefore Holland’s use of that favor on Johnsen’s
behalf would mean that Johnsen owed Holland $50,000.
Initially, Johnsen offered Holland a written confession for
his role in the death of Johnsen’s pregnant girlfriend, Terry
Holloway, in San Diego, discussed in greater detail further
below. Holland rejected this offer as inadequate collateral
because he was concerned the confession could not be verified.
He insisted that Johnsen’s confession be related to his pending
charges. Johnsen agreed to confess to the crimes at Rudy’s
home. He instructed Holland to tell the colonel to kill Landrum,
Landrum’s girlfriend, Landrum’s mother, Landrum’s uncle and
girlfriend, Detective Grogan, Officer Fred Vaughn, Thorne, and
Lee.
Johnsen told Holland three different versions of Juanita’s
murder. First, Johnsen claimed Landrum murdered the Braggs
and that Landrum was framing him. Second, Johnsen said that
both he and Landrum killed the Braggs. Third, Johnsen
admitted that he alone was involved in Juanita’s murder and
the crimes at Rudy’s home.
Johnsen told Holland specific details leading up to
Juanita’s murder. He had previously burglarized Rudy’s home
twice — once in September 1991 and once in February 1992 —
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while he was living at his mother’s home nearby. During the
first burglary, he broke into Rudy’s home to steal cash on a
countertop. At the time of the second burglary, Johnsen asked
Landrum to help him steal a television from Rudy’s home, but
Landrum could not make it. During one of these burglaries,
Johnsen stole the front door key to Rudy’s home.
Johnsen told Holland he had planned to move into an
apartment on March 1 with Landrum. The evening of February
29, he and Landrum got “stoned” and played games. After
Landrum returned to his mother’s home for the night, Johnsen
stayed awake watching television before eventually going to
bed.
Around 5:30 a.m. on March 1, Johnsen woke up and “got
dressed to kill.” Because he was about to move away, Johnsen
knew that this was his last opportunity to rape and kill Rudy,
and he wanted to see if he could “do it.” Johnsen went into his
mother’s kitchen to grab a pair of yellow dishwashing gloves, a
knife, and a ball peen hammer. Using Rudy’s spare front door
key, Johnsen entered Rudy’s home through the front entrance.
Johnsen entered Rudy’s bedroom, which he found to be
empty, before heading to the guest bedroom. Spotting an elderly
couple asleep, he stood beside their bed for three minutes
contemplating if he had the nerve to murder them. Johnsen
then began stabbing Juanita and Leo with the knife and
bludgeoning them with the hammer. As Johnsen stabbed them
through the blanket, the knife he brought bent, so he went to
the kitchen to get more knives. When Johnsen hit Leo in the
head with the hammer, he assumed Leo had died when he saw
Leo’s skull depress an inch. To ensure he killed Juanita,
Johnsen stabbed her body and slit her wrist and throat.
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After he grabbed money from Leo’s wallet and Juanita’s
purse, Johnsen walked around Rudy’s home and found other
items to steal, including Leo’s calculator, several telephones,
and a camera. He returned to the guest bedroom and noticed
Juanita was still alive. To avoid being identified, Johnsen took
a pair of pantyhose from Rudy’s dresser and placed it over his
head before reentering the guest bedroom to stab Juanita again.
As the sun began to rise, Johnsen rushed to leave Rudy’s home
with a bag of stolen goods. He placed the bag by a dumpster
before going inside his home. Johnsen told his mother he was
jogging early in the morning and then went to McDonald’s for
breakfast with the rest of the household. As they were moving
out, Johnsen saw an ambulance in front of Rudy’s home around
3:00 p.m.
After learning some of these details, Holland informed his
attorney about Johnsen’s crimes, but Holland also asked his
attorney “not to say anything” about Holland because he did not
want to risk being labeled a snitch while in jail. Still, Holland
wanted the district attorney to know about the confession
because he believed Johnsen was “sick,” and without the
confession, Holland was worried Johnsen might “get off” and kill
others. Holland’s attorney informed District Attorney
Investigator Fred Antone.
Believing Johnsen’s signed confession would be sufficient,
Holland was under the impression he would not need to testify
at Johnsen’s trial for the notes to be admissible. But on June
26, 1992, Antone arranged a meeting with Holland and his
attorney, during which Antone informed Holland that he would
need to testify or Johnsen’s written confession would be
inadmissible at trial. At the meeting, Holland told Antone that
if he had to testify, he wanted his state sentence to run
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concurrently with his federal term, so he would not be
villainized as an informant while serving time in a California
prison. Antone made no promises, telling Holland: “[I] want
you to understand that I’m not asking you to be a police agent
and do these things for me.”
Informing Antone that he could probably get Johnsen to
disclose details about Holloway’s murder in writing, Holland
asked, “Should I continue, should I stop?” Antone responded,
“Well, that’s, that’s up to you, Eric.” Holland’s attorney then
advised him, “The only agreement that they’re making with you
at the moment is not to use any of this against you.” At the close
of the meeting, Holland signed a written form acknowledging
that he was receiving nothing in return for his continued
engagement with Johnsen.
On July 3, 1992, Holland and Antone met again. At that
meeting, Holland said that he could get a written confession
from Johnsen soon, but that he would not hand over the
confession unless the prosecutor cut him a deal. Antone refused,
saying, “If you have any idea that you even think you’re working
for us, stop,” and he stressed, “I don’t want you to do anything
to try and make my case [against Johnsen] better.”
Over several weeks, between June and a few days after
Holland’s July 3 conversation with Antone, Johnsen gave
Holland several written notes, prompted by questions from
Holland. In the first, Johnsen claimed Landrum committed the
crimes. In the second, Johnsen wrote that he and Landrum
committed the crimes together. For the third, Johnsen wrote
out two or three pages detailing his sole responsibility for the
crimes. Holland rejected this confession as inadequate
collateral because it offered only cursory details. Consequently,
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Johnsen prepared a 14-page account with two one-page
supplements, where Johnsen again took sole responsibility.
Johnsen also prepared additional notes detailing various
aspects of the crime. Johnsen flushed the first note and third
note down his toilet.
By September 1992, Holland refused to testify at trial
because the district attorney had still not entered into any
agreement with him. Soon after, Holland was served a search
warrant of his cell, and several notes were confiscated, including
Johnsen’s 14-page confession. A handwriting expert confirmed
that the writing on the confession and notes matched Johnsen’s
handwriting. Johnsen’s fingerprints were also found on all but
one of the pages of his written confession and on all of the notes
passed between Johnsen and Holland. Only after Holland was
told that he would be subpoenaed did he agree to testify.
Holland committed to tell the truth at Johnsen’s trial; in
exchange, his state sentence would run concurrently with his
federal sentence.
2. Defense Case
(a) February 29 – March 1, 1992
On March 1, David Johnson, a coworker of Johnsen’s
mother and unrelated to the Johnsens, moved into the home as
Johnsen and his mother were moving out. Johnson noticed a
gauze bandage around Landrum’s left hand, and he
remembered Landrum playing with the bandage.
Johnsen’s mother learned from Johnsen that an unknown
person’s blood was found on the knife, in violation of the court’s
order not to discuss her testimony with Johnsen. Following that
conversation, she recalled seeing Landrum with a bandage on
his hand. Johnsen’s mother also testified that she gave
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Landrum a spare key to her home so he could help care for her
cats. Landrum handed the key back to her four days later, well
before March 1. Antone testified that he recalled seeing a
quarter-inch scar between Landrum’s thumb and forefinger,
“near the webbing.” Landrum told Antone that he got the scar
eight years ago while playing a knife game.
Johnsen’s mother also testified that when she went to bed
on February 29 around 10:30 p.m., Johnsen was still lying on
the sofa watching television. Around 3:00 a.m., she woke up to
stop a running toilet, and because she saw Johnsen asleep on
the sofa with the television still on, she turned the television off.
Around 6:40 or 6:45 a.m., Johnsen’s mother woke up to see
Johnsen awake on the couch. The two of them went to
McDonald’s for breakfast with their housemates, the Greshams,
around 7:00 a.m. and returned to the home between 7:30 to 7:45
a.m. Around noon, Johnsen and Landrum went for a 10-minute
walk to buy soda and beer. They spent the rest of the afternoon
moving out of the home, leaving for good around 5:00 p.m.
Ray Gresham, a cotenant of the Johnsens, testified that he
and his six-year-old stepdaughter woke up around 6:30 to 7:00
a.m. to find Johnsen and his mother already awake. All of them
went to McDonald’s, and they spent the rest of the day moving
out. Gresham recalled Johnsen leaving the home around 10:00
a.m. for about 30 minutes to buy soda.
After testifying for the prosecution, Landrum was recalled
as a defense witness. Landrum testified he was 99 percent sure
that on the night of February 29, he left Johnsen’s home
between 10:00 to 10:30 p.m. and slept at his mother’s house. The
only other person there with him that night was his mother, who
left for work around 6:00 a.m. On the morning of March 1, he
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woke up at his mother’s home at around 8:00 a.m., had
breakfast, and watched television. Around 10:00 a.m., he drove
to Johnsen’s home to help the Johnsens move out. Landrum
denied having a cut on his hand that morning or wearing a
bandage on his hand. He denied ever possessing a key to
Johnsen’s home, aside from the day when Johnsen “went away
with the police” and Johnsen left Landrum his house key. He
returned that key to Johnsen’s mother later that day. Landrum
also denied participating in any crimes at Rudy’s home.
(b) Juanita’s Time of Death
Dr. Ernoehazy, a time of death expert, testified that he
had performed over 10,000 autopsies and testified on time of
death hundreds of times. As noted, Dr. Ernoehazy examined
Juanita’s body inside Rudy’s home around 6:00 p.m. on March
1. He observed that her body had not yet begun to decompose,
which led him to conclude she had not been deceased for “a very
long period of time.” Based on her body’s lividity and rigidity,
he estimated that Juanita likely died between six to eight hours
before 6:00 p.m. — in other words, between 10:00 a.m. and 12:00
p.m.
During the preliminary hearing, Dr. Ernoehazy said that
Juanita’s injuries were probably inflicted no more than one or
two hours before her death, which would place the attack
between 8:00 a.m. to 11:00 a.m. At trial, Dr. Ernoehazy could
not recall exactly the basis for that prior estimate, and he opined
that the amount of bodily hemorrhaging and vital reaction
suggested that Juanita likely died several hours after her
injuries. On cross-examination, Dr. Ernoehazy conservatively
estimated that Juanita died more than five minutes but less
than 24 hours after sustaining her injuries, which was
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consistent with the prosecution’s theory that Juanita was
mortally wounded by Johnsen at around 5:00 or 6:00 a.m. on
March 1.
(c) Eric Holland
A witness testified that he sold a 1987 Porsche to Eric
Holland for a $20,600 cashier’s check in 1990. The cashier’s
check turned out to be fraudulent.
3. Prosecution Rebuttal
Detective Grogan testified that he did not see a bandage
on Landrum’s hand when he saw Landrum on March 1 at 7:00
p.m. Detective Taylor testified that Johnsen’s mother told him
that she woke up at 7:00 a.m. on March 1 and that Gresham said
he woke up around 7:30 a.m. that day.
B. Penalty Phase
1. Prosecution Case
(a) Prior Criminal Acts
Holloway’s former coworker Edward Nieto saw Johnsen
slap Holloway’s face multiple times with his open hand. In June
1990, Johnsen threatened to hit Nieto’s new car with a bat
because he had offered to give Holloway a ride to work. When
Nieto called to check on Holloway, Johnsen answered the phone,
and Holloway had been tied up. When Johnsen placed the phone
over Holloway’s ear, she sounded fearful. However, she asked
Nieto not to call the police. The next time Nieto saw Holloway
at work, she had cut wrists and marks around her ankles. Three
days later, Johnsen came to their work and pointed a gun at
Nieto. Johnsen threatened to kill Nieto if Holloway refused to
talk to him.
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On May 17, 1991, Holloway’s body was found in a drainage
ditch off a highway in San Diego. Forensic pathologist and
deputy medical examiner Dr. Mark Super autopsied Holloway’s
body. At the time of her death, Holloway was 16 to 17 weeks
pregnant with Johnsen’s child. Dr. Super observed that
Holloway had suffered several face and scalp lacerations, facial
bone fractures, defensive wounds on her hands, and
strangulation abrasions on her neck. Her injuries were
consistent with assault with a scissor jack and strangulation, as
evidenced by hemorrhaging in her eyes, deep neck bruises, and
fractures in her larynx and hyoid bone. He opined that
Holloway died by strangulation and blunt force injury to her
head.
At the time of Holloway’s death, Johnsen was confined at
the San Diego County jail. Two days before the discovery of
Holloway’s body, Johnsen called his friend Mark Schmidt and
asked to speak with Robert Jurado. Schmidt, Jurado, Denise
Shigemura, and Holloway all went to Schmidt’s apartment to
await Johnsen’s call. When Johnsen called, Jurado and
Shigemura took the call in another room. Johnsen also spoke
privately to Holloway. Around then, Jurado’s girlfriend, Anna
Humiston, arrived at the apartment.
After Johnsen ended the call, Schmidt gave Jurado a Weed
Eater wire, which Schmidt characterized as a clear thin plastic
line used for lawn trimmers. Jurado looped the wire around his
neck, tightened it, and commented, “[t]hat will do.” At Jurado’s
insistence, Schmidt told Holloway to leave with everyone else.
At around 8:45 p.m., everyone except Schmidt left the
apartment.
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On May 16, Humiston called her friend Melissa Andre and
told her that she was involved in something very bad with
Jurado and Shigemura. Humiston told Andre that the three of
them had murdered Holloway on May 15. While Holloway was
sitting in the front passenger seat of Shigemura’s car, Jurado
and Humiston sat in the back seat. Jurado began strangling
Holloway with the wire as Humiston punched Holloway. “Why
are you killing me and my baby?” Holloway screamed, as she
begged them to “[p]lease stop.” They pulled to the side of the
highway, which allowed Jurado to throw Holloway’s body into a
ditch and beat her with a tire jack to confirm she was dead.
Another friend of Humiston’s, Mia Rodigues, testified that
Humiston told her on May 16 that she helped kill “Terry.” She
told Rodigues how it happened: while in the car, Humiston
pinned Holloway’s arms down as Jurado strangled her with a
rope and killed her with a car jack. With Humiston’s help,
Jurado then threw Holloway’s body into a ditch. On May 17,
Humiston and Rodigues spoke and discussed Holloway’s murder
again. According to Humiston, during the attack, Holloway
pleaded, “[w]hy me?” and “[t]ell me why.”
Holland testified regarding Johnsen’s notes confessing to
his involvement in Holloway’s murder, which occurred about a
year before the crimes at Rudy’s home. That handwritten note
was admitted into evidence. A handwriting expert confirmed
the note’s writing as consistent with Johnsen’s, and a
fingerprinting expert found latent prints from Johnsen and
Holland on the note.
Johnsen’s written confession offered an account consistent
with the testimony of the other witnesses. Johnsen called
Schmidt so he could speak with Jurado and Shigemura. All of
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them went to Schmidt’s house with Holloway, as did Humiston.
Jurado and Shigemura learned from Johnsen that Holloway
threatened to tell drug dealer Doug Mynatt that Johnsen,
Jurado, and Shigemura were planning to kill him. Johnsen was
also angered because Holloway was using methamphetamine
while pregnant with their child. Johnsen then spoke privately
with Holloway and conveyed his anger about her threats to
“snitch” on them for planning to kill Mynatt. He noted her
actions would “get a lot of people killed, including me.” Johnsen
spoke again privately with Jurado, who said they would need to
kill Holloway. If Johnsen could persuade Holloway to leave
Schmidt’s apartment with the others, Jurado agreed to “do the
rest.”
Johnsen then told Holloway that he would tell her
everything she wanted to know later, and he encouraged her to
leave with Jurado, Humiston, and Shigemura. Johnsen
promised to call her later that evening. Two days later, on May
17, the police informed Johnsen that Holloway had been
murdered. Johnsen told them he believed Brian Dick, a drug
dealer, was the perpetrator because Holloway owed him money.
On September 1, 1991, San Diego District Attorney
Investigator Anthony Bento interviewed Johnsen as a witness
in Holloway’s murder. Johnsen admitted his involvement in the
conspiracy to murder Mynatt. He also expressed sadness about
the death of Holloway and their unborn child. Jurado,
Shigemura, and Humiston pleaded guilty or were convicted of
Holloway’s first degree murder. (See People v. Jurado (2006) 38
Cal.4th 72, 82.) The record does not reflect whether Johnsen
was charged with any crimes related to Holloway’s murder.
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(b) Victim Impact Evidence
Dr. Lloyd Brown, the medical director of Leo Bragg’s
outpatient rehabilitation facility, testified about Leo’s recovery.
Leo spent half a year at the facility from June 1992 to December
1992. Before his arrival, Leo had already received physical
rehabilitation for his injuries, so Dr. Brown’s efforts centered on
restoring Leo’s cognitive and communication capabilities. Upon
Leo’s arrival, his ability to process information was severely
debilitated, and he could not use proper facial expressions or
speak except for an occasional word. Leo began to regain control
of his bladder, but it was not safe to leave him alone at any time
due to impulsivity that arose due to his brain injuries. After half
a year of cognitive rehabilitation, Leo left the facility still very
impaired; he still could not carry on a conversation orally or in
writing. In Dr. Brown’s view, Leo would never be able to live
alone or make his own decisions; he would need constant
supervision for the rest of his life.
The Braggs’ adult children testified about their mother’s
death and the caretaking duties they took on for their father.
Rudy constantly visualized her mother’s dead body, and her
mother’s death affected her daily. Rudy’s personality changed
after the murder, causing her to become fearful and avoid
people. Rudy also felt personal guilt for her mother’s death and
father’s near-death injuries, believing that she should have
realized her key was missing sooner and that she should not
have left town for the weekend. Leo Bragg, Jr., testified about
his difficulty coping with the loss of his mother.
After the attack, Leo spent three months in the hospital,
a few days with Rudy, and the next six months at a cognitive
rehabilitation facility in Tennessee. During Leo’s brief stay with
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Rudy, he could not communicate with her, his actions were
unpredictable, and he had no control over his body. Because his
injuries prevented him from communicating properly, Rudy felt
as though she had lost him too.
Leo, Jr., and his wife took on full-time caretaking duties
for his father. Constantly agitated, frightened, emotional, and
impulsive, Leo had to be constantly supervised; as a result, Leo,
Jr.’s wife quit her part-time college teaching job to care for him
and usher him between his medical and rehabilitation
appointments. Leo had to be retaught basic tasks as though he
were a child, which was made more difficult by the fact that they
could no longer communicate with him. He regularly broke
down emotionally every time he saw a picture of Juanita. After
15 months of familial caregiving, he was moved to an assisted
living facility. By that time, Leo could only muster smiles,
handshakes, and an occasional farewell.
2. Defense Case
Clinical psychologist Dr. Gretchen White prepared a
psychosocial history of Johnsen. She reviewed case materials,
educational records, and mental health records. She also
interviewed Johnsen’s family and his mental health clinicians.
Her report revealed that Johnsen had warning signs for
future psychological problems as early as infancy. Johnsen was
a “difficult” baby, cried often, had frequent infections, and had
difficulty sleeping. His father was routinely absent from
Johnsen’s childhood because of his naval service, so he barely
parented his sons. Johnsen was the eldest sibling, and he was
talented at the piano, which improved his self-esteem until he
quit playing at age eight or nine. Johnsen’s grandparents were
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involved in Johnsen’s life, including whenever his parents were
absent.
During his early childhood, Johnsen was prescribed
Ritalin for his defiant, erratic, and fidgety behavior in school.
Dr. White suspected that Johnsen had attention deficit
hyperactivity disorder (ADHD) and that his mother’s lack of
structure exacerbated its effects. His parents took him off
Ritalin at age eight or nine without medical consultation.
Johnsen’s father was concerned the drug was stunting his
growth, and his mother believed he no longer needed it because
he was doing well in school. Johnsen’s behavioral problems
returned after his prescription was discontinued.
During Johnsen’s early teenage years, his parents
separated and divorced. Following the separation, Johnsen’s
father became more involved in his life, but his involvement
declined when he remarried. Johnsen disliked his stepmother;
she in turn was critical of him. At one point, Johnsen gave his
father an ultimatum, demanding that his father choose between
him or his stepmother. When Johnsen was 16 years old,
Johnsen’s father discontinued his relationship with his sons,
and Johnsen’s tearful pleas for him to visit were rebuffed. After
that, Johnsen’s father only contacted his sons by sending cards
to them for their birthdays and for Christmas, with a few dollars
inside.
Robert Remmer, a friend of Johnsen’s mother who lived
with the Johnsens for about 10 years, babysat Johnsen when his
mother traveled for work. Remmer exerted minimal discipline
in Johnsen’s life, and he often smoked pot and ingested
methamphetamine with Johnsen and Johnsen’s brother, Kevin.
Dr. White identified Johnsen’s mother’s boyfriend, Jack
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Minteer, as a positive influence on his life when he was 17.
When Johnsen’s mother and Minteer broke up, his departure
disappointed Johnsen.
In middle school, Johnsen began using pot. He started
using methamphetamine about a year later, at age 14 or 15.
Johnsen may also have used LSD and cocaine. A neighbor of the
Johnsens told Dr. White about an incident in Johnsen’s teenage
years when the neighbor’s bathroom window screen was slashed
and a hand was stuck through it while his daughter was
showering. The neighbor went to Johnsen’s home, where he saw
a carpet knife on the table, and Kevin told him that Johnsen had
been cutting window screens around the neighborhood.
After Johnsen overdosed and was hospitalized at age 17,
he was enrolled in a drug treatment program with his brother.
While undergoing treatment, Johnsen lamented the absence of
his father in his life. A psychologist found that Johnsen’s loss of
his father from his life had a strongly negative impact on him.
The psychologist also noticed Johnsen had a fear of failing due
to anticipation of criticism and that his fear of failure infected
his daily life. He diagnosed Johnsen with an “under socialized,
nonaggressive” conduct disorder as well as cannabis and
amphetamine dependency. The psychologist spotted symptoms
consistent with ADHD, dysthymic disorder, and borderline
personality disorder, but he never formally diagnosed Johnsen
with any of those conditions because he was hesitant to label
teenagers whose brains and personalities were still in flux.
Upon Johnsen’s discharge, the treatment center
recommended that Johnsen be moved into a residential
treatment program, but he ended up moving back in with his
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mother. Following treatment, Johnsen maintained sobriety for
about six months.
Johnsen, his brother, and his mother were referred to
outpatient counseling with a family therapist. They received
counseling for 20 to 25 weeks. During these sessions, Johnsen’s
mother regularly complained about Johnsen and his brother,
and said she had no time to raise them because of her work.
Johnsen disliked these counseling sessions and often expressed
his anger and depression during them. But the therapist
avoided prescribing Johnsen antidepressant medication in light
of Johnsen’s history of drug abuse. These sessions caused the
therapist to believe that Johnsen suffered from dysthymic
disorder, borderline personality disorder, and major depressive
episodes. The therapist did not suspect that Johnsen suffered
from any antisocial personality disorders. At age 19, Johnsen
was once again entered into a drug treatment program.
A former director of the California Department of
Corrections testified about Johnsen’s three disciplinary reports
during his two-year pretrial detention, which included not being
dressed in time for court, not being out of jail clothes in a timely
manner, and unauthorized possession of the painkiller Motrin.
Based on Johnsen’s behavior while incarcerated, he concluded
that Johnsen would not be a danger to others if he were
sentenced to life without the possibility of parole. But he had no
answer to whether he was confident Johnsen would stop
soliciting the murder of witnesses and others from inside prison.
II. PRETRIAL ISSUES
A. Denial of Motion To Change Venue
Johnsen contends that the trial court erred in denying his
motion to change venue from Stanislaus County. According to
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Johnsen, the county’s media outlets engaged in “inflammatory
coverage” that publicized inadmissible evidence and erroneously
reported that Johnsen had “attempt[ed] to manipulate the
system and delay the trial, thereby costing the county thousands
of dollars.” He alleges that the court’s denial here deprived him
of a fair jury trial in violation of the Sixth Amendment to the
federal Constitution.
1. Background
Before trial, in November 1993, Johnsen moved for a
change of venue pursuant to section 1033. In support of his
motion, Johnsen compiled about 20 news articles pertaining to
his case and attached a survey report by Dr. Stephen J.
Schoenthaler, a criminal justice professor at California State
University, Stanislaus, which concluded that Johnsen could not
have a fair trial in Stanislaus County.
The district attorney opposed Johnsen’s motion, arguing
that Professor Schoenthaler’s survey did not even ask
interviewees the crucial question: whether they would be
willing to set aside their preexisting views and decide the case
based on evidence introduced at trial. The prosecutor’s
opposition also noted that all 35 relevant newscasts aired in
March 1992 in the weeks after Juanita’s murder and at the time
of Johnsen’s arrest — nearly two years before Johnsen’s trial
began in February 1994.
The trial court held a four-day hearing on Johnsen’s
motion. Reviewing the newscasts, the court noted that in the
aftermath of Juanita’s killing, journalists used fairly strong
language to describe the scene, characterizing it as “an awful
story,” a “tale too horrible to believe,” a “vicious and baffling
crime,” and a “brutal crime against innocent people” with “no
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motive.” On March 3, some newscasts noted a $10,000 reward
for information leading to the perpetrator’s arrest. Upon
Johnsen’s arrest, a few newscasts used photos of Johnsen as the
suspect, noting that Johnsen had been acting suspiciously.
Finally, on March 30, 1992, one newscast suggested that the
investigation into Johnsen had unearthed some evidence linking
him to the crime scene.
At the hearing, the court also considered testimony from
several experts. Professor Schoenthaler detailed his survey
findings, whose bottom-line findings purported to establish that
Johnsen could not receive a fair trial in Stanislaus County. To
conduct the survey, defense investigators randomly called
Stanislaus County phone numbers and asked 239 adult
respondents whether they had been exposed to pretrial publicity
pertaining to Johnsen’s case. The survey found that 70 percent
of respondents had already heard of Johnsen’s case, that 41
percent believed Johnsen killed Juanita, and that 60 percent
believed that Johnsen, if convicted, deserved the death penalty.
Prosecution expert Dr. Ebbe Ebbesen, a psychology
professor at University of California, San Diego, contested the
survey findings. Before Johnsen’s trial, Dr. Ebbesen had
testified in opposition to venue change motions 25 times. First,
he criticized change-of-venue surveys generally, arguing that
such studies are poor predictors of how jurors may behave at
trial. Second, Dr. Ebbesen contested the survey’s selection
methodology on the ground that the survey participants were
unrepresentative of the people who might be called for jury duty
and unrepresentative of those who might actually be selected for
the jury following voir dire. Third, Dr. Ebbesen rejected the
survey’s bottom-line conclusion in light of the questions asked,
opining that the questions did not accurately pinpoint
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respondents who had prejudged the case based on media
exposure. Finally, even taking the survey results at face value,
Dr. Ebbesen opined that 44.1 percent of residents had no
exposure to media publicity whatsoever and had no fixed view
about the case, and that less than one in four residents could
present impartiality problems in light of the case’s publicity.
After hearing from both sides, the court had “serious
doubts about the validity of the defendant’s survey.” Professor
Schoenthaler’s survey, according to the court, “was not
conducted in a manner to ensure that the respondents were
representative of the individuals who might serve on the jury for
this case,” and it failed to “ask a sufficient range and variety of
questions to provide good evidence about the meaning of the
responses.”
The court also found that based on Dr. Ebbesen’s
testimony, the survey “did not show the high numbers of persons
that were so affected that they could not be fair and impartial.”
“No more than 20 percent of the venire have knowledge and
attitudes that might prevent them from serving in a fair
manner.” The court also observed that “editorializing in both
[the defense expert’s] report and in his testimony” suggested
“some bias toward the defense.” In the end, the court credited
Professor Ebbesen’s report over Professor Schoenthaler’s
survey.
The court observed that the nature and gravity of
Johnsen’s offense supported a venue change, but that all of the
other legally relevant factors weighed in the other direction.
The court ultimately denied Johnsen’s motion, finding there was
not a reasonable likelihood that Johnsen could not receive a fair
and impartial trial in Stanislaus County. Still, the court left
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open the option for Johnsen to renew his venue change motion
if issues arose during the jury selection process. In response,
Johnsen sought a writ of mandate in the Court of Appeal, which
the court denied. (Johnsen v. Superior Court, writ petition
summarily denied Jan. 28, 1994, F020985.)
2. Discussion
The Sixth Amendment guarantees the right to “an
impartial jury.” (U.S. Const., 6th Amend.) In furtherance of
this right, California law provides that “the court shall order a
change of venue . . . [¶] . . . [o]n motion of the defendant, to
another county when it appears that there is a reasonable
likelihood that a fair and impartial trial cannot be had in the
county.” (§ 1033; see People v. Smith (2015) 61 Cal.4th 18, 39 [a
“ ‘ “reasonable likelihood” . . . “means something less than ‘more
probable than not’ ” and “something more than
merely ‘possible’ ” ’ ”].) To make this determination, the court
must consider “the nature and gravity of the offense, the nature
and extent of the media coverage, the size of the community, and
the community status of the defendant and the victim.” (Smith,
at p. 39.)
“The trial court’s essentially factual determinations such
as the gravity of the crimes, the size of the community, the
status of the defendant and victims, and the nature and extent
of the pretrial publicity, will be sustained if supported by
substantial evidence. We independently review the trial court’s
ultimate determination of the reasonable likelihood of an unfair
trial.” (People v. Cooper (1991) 53 Cal.3d 771, 806.) On appeal,
Johnsen must show both error and prejudice — i.e., it was (1)
“ ‘reasonably likely that a fair trial could not be had in’ ”
Stanislaus County at the time of his motion, and (2)
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“ ‘reasonably likely that a fair trial was not had’ ” based on voir
dire of prospective and actual jurors. (People v. Famalaro (2011)
52 Cal.4th 1, 21 (Famalaro).) Because we find no error in the
court’s denial of Johnsen’s motion to change venue, we do not
proceed to consider prejudice.
Beginning with the first factor, there is no doubt that the
nature and gravity of Johnsen’s alleged offenses — the capital
murder and attempted murder of an elderly couple while they
were asleep — are grave allegations that weigh in favor of a
venue change, as the trial court noted. (People v. Jennings
(1991) 53 Cal.3d 334, 360; People v. Hamilton (1989)48 Cal.3d 1142, 1159
.) As the press coverage highlights, people in the
community “lived in fear” after this violent home invasion and
viewed the “brutal crime against innocent people” as
particularly sensational. But because the nature and gravity of
the offenses in this case are not dispositive by themselves in
favor of a venue change (cf. Hamilton, at p. 1159 [there is no
“presumption in favor of a venue change in all capital cases”]),
we proceed to consider the other factors.
With respect to the second factor, substantial evidence
supports the trial court’s assessment that the nature and the
extent of media coverage in Johnsen’s case does not weigh in
favor of a venue change. According to Johnsen, some media
reports pertained to inadmissible evidence, hinted at Johnsen’s
confession, inaccurately reported that “detectives found a bloody
hammer, bloody tennis shoes and several of Sylvia Rudy’s
possessions in [Johnsen’s] apartment,” and were potentially
inflammatory by noting Johnsen’s possible involvement in a
different homicide and his invocation of his Fifth Amendment
right to silence. Johnsen also complains that a few articles
noted that his case had gone through several lawyers who had
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declared conflicts of interest through no fault of Johnsen’s and
that Johnsen had filed a $1 million lawsuit against one of his
former lawyers.
After reviewing all the media articles and newscasts
relating to Johnsen’s case, the court observed that there were
not so many articles pertaining to the case, approximately 30.
Even Professor Schoenthaler acknowledged that the media
publicity surrounding Johnsen’s case was “fairly moderate.”
While a few articles used strong language and speculated
beyond the facts of Johnsen’s case, the court noted that those
articles were few and far between, and the court chalked up
those discrepancies to “sensationalism . . . typical of the TV.”
Finally, given that most of the coverage occurred nearly
two years before Johnsen’s trial, the court noted that the
coverage was temporally limited and had largely subsided “over
the passage of time.” This conclusion was further bolstered by
the trial court’s observation, in response to Johnsen’s request for
additional peremptory challenges during voir dire, that few
jurors had even heard of the case. The court noted “any publicity
that [the jurors] had received was so attenuated and so long ago
that it didn’t have any effect at all.”
Substantial evidence supports the trial court’s factual
findings. Over a two-year period, there were a few dozen news
articles published about Johnsen’s case, and most were written
nearly two years prior to Johnsen’s trial. As we have recognized,
“[t]he passage of time ordinarily blunts the prejudicial impact of
pretrial publicity.” (People v. McCurdy (2014) 59 Cal.4th
1063, 1077; see People v. Bolin (1998)18 Cal.4th 297, 314
[“the
effect of the publicity” was less “substantial . . . after an
11-month interim” between the coverage and the defendant’s
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trial]; People v. Ramirez (2006) 39 Cal.4th 398, 434(Ramirez) [“passage of more than a year from the time of the extensive media coverage served to attenuate any possible prejudice”].) It is also true that strong language appeared in some articles. But their characterizations were not disproportionate to the facts and circumstances of the crimes. (People v. Suff (2014)58 Cal.4th 1013, 1048
[“ ‘Media coverage is not biased or
inflammatory simply because it recounts the inherently
disturbing circumstances of the case.’ ”].)
Moreover, the trial court took appropriate steps to avoid
prejudicial pretrial media coverage. Media reports conveying
dramatic facts that would not be admissible in court may
inflame potential jurors and render a future trial in the county
unfair. (See Williams v. Superior Court (1983) 34 Cal.3d 584,
592[media coverage of defendant’s charges of burglary and assault with a deadly weapon, which were later dismissed, “could nevertheless have inflamed potential jurors”].) Prejudice may also arise from media reports that suggest the defendant committed the offense. (See Martinez v. Superior Court (1981)29 Cal.3d 574
, 579–580) [finding potentially prejudicial an
article discussing a witness’s invocation of the 5th Amend.
during a codefendant’s trial and describing the witness’s
admission to being defendant’s partner in charged crimes and
disposing of weapons].) Such media coverage, especially when
widespread or occurring close in time to jury selection, “can
dangerously lead to prejudgment by the reader or listener of the
news coverage” and so generally “weigh[s] heavily” in favor of
changing venue. (Williams, at p. 591.) The trial court largely
avoided such pretrial publicity by, for example, excluding the
press from the suppression hearing on Holland’s testimony and
Johnsen’s confession to Holland.
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Next, we turn to the third factor, the size of the
community. “The size of the community is important because in
a small rural community, a major crime is likely to be embedded
in the public consciousness more deeply and for a longer time
than in a populous urban area.” (People v. Coleman (1989) 48
Cal.3d 112, 134; see Rideau v. Louisiana (1963)373 U.S. 723, 724, 726
[finding denial of venue change violated due process where a film of the defendant admitting to various offenses aired three times in a parish (similar to a county) with a population of 150,000 and was viewed by 24,000, 53,000, and 29,000 people]; People v. Duong (2020)10 Cal.5th 36, 50
[“ ‘populous metropolitan character of the community [can] dissipate[] the impact of pretrial publicity’ ”].) The trial court found that the size of Stanislaus County did not weigh in favor of Johnsen’s venue change motion. The parties stipulated that at the time of trial, the county was home to “405,000 people . . . . It’s not the largest county in California and it’s not the smallest.” In People v. Vieira (2005)35 Cal.4th 264
, we held that the size of
Stanislaus County alone did not weigh in favor of a venue
change at the time of another defendant’s trial in the 1990s. (Id.
at pp. 280–283 [finding that the size of Stanislaus County, with
a population of approximately 370,000 according to the 1990
census, did not compel a venue change].) When Johnsen’s trial
took place in 1994, the county’s population had risen by 35,000.
(Ibid.) In light of these data, substantial evidence supports the
court’s finding.
As for Johnsen’s social status, the court observed that
“[t]here’s no evidence that [Johnsen] was well-known in his
community or a public figure or that he grew up in Modesto and
lots of people know him, whether he went to school here or high
school or anything of that nature.” The absence of any
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reputation in Modesto renders Johnsen’s social status a
“ ‘neutral factor[].’ ” (Famalaro, supra, 52 Cal.4th at p. 23.) Nor does the social status of the victims favor venue change. Johnsen presented no evidence showing the Braggs were known in Stanislaus County. In fact, the record shows that they were Las Vegas residents who visited Rudy in Modesto for only a week annually. Since “[n]either defendant nor the victim[] w[as] known to the public prior to the crimes and defendant’s arrest,” their relative obscurity properly weighed against venue change. (Ramirez, supra,39 Cal.4th at p. 434
.)
In sum, although substantial evidence supports the trial
court’s findings that the nature and gravity of Johnsen’s crimes
favored Johnsen’s motion to change venue, all the other factors
weighed against his motion. Reviewing the legal question de
novo based on the factors above, we conclude Johnsen has not
shown a reasonable likelihood that a fair trial could not be had
in Stanislaus County at the time of his motion. The trial court
did not err in rejecting his motion.
B. Admission of Jail Informant Testimony
Johnsen alleges the incriminating statements elicited by
Holland outside the presence of Johnsen’s counsel violated his
right to counsel under the Sixth Amendment and article I,
section 15 of the California Constitution.
1. Background
Johnsen was arrested on March 26, 1992. A few days
later, on March 30, the prosecutor filed a complaint against
Johnsen, charging him with murder with special circumstances,
attempted murder, robbery, and burglary. The charges in the
information pertained exclusively to the crimes at Rudy’s home;
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none of the allegations were associated with Holloway’s death in
San Diego.
From June to August 1992, Johnsen was awaiting trial in
a jail cell adjacent to Holland’s. Holland had been previously
convicted of various forgery and counterfeiting offenses in
federal court, and he had ongoing state criminal proceedings
alleging forgery and auto theft. According to his testimony,
Holland had no prior history of “giv[ing] any information to law
enforcement officials of any type.”
Holland testified that Johnsen, while incarcerated,
solicited his fellow inmates to murder Landrum and Landrum’s
girlfriend, claiming that Landrum was framing him for
Juanita’s murder. Thinking it would “put an end” to Johnsen’s
solicitation and “get him to shut up,” Holland pretended that he
knew of a “colonel in San Diego” who would eliminate Johnsen’s
targets in return for a sizable fee. Johnsen named a list of
people he wanted the “colonel” to kill, including Landrum’s
girlfriend, mother, and uncle as well as Landrum. Johnsen also
demanded that Detective Grogan, Officer Vaugh, Thorne, and
Lee be eliminated. Johnsen outlined how he wanted them all to
be killed.
As collateral, Johnsen offered to prepare a written
confession detailing his involvement in Holloway’s murder in
San Diego. Holland initially rejected this proposal. Johnsen
then offered to reveal his involvement in the crimes at Rudy’s
home, which Holland accepted. From that point forward,
Johnsen described his crimes against the Braggs in 35 detailed
notes responding to Holland’s extensive questioning. Johnsen
eventually also told Holland about “how he ended up being
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involved in killing his girlfriend and his unborn child” a year
earlier.
Johnsen’s admissions worried Holland. Holland was
particularly perturbed by Johnsen’s lack of motive for killing the
Braggs. Johnsen told Holland he tried to kill them “because he
wanted to see if he could get away with killing somebody.”
Because of his concerns that Johnsen might “get off” and kill
others, Holland asked his attorney to convey all the information
he had learned to the district attorney. At that time, Holland
insisted he did not want “anything” in return, but he also did
not want to testify at trial because that would put him at risk
while incarcerated.
On June 26, Holland’s attorney arranged a tape-recorded
meeting with District Attorney Investigator Antone. Antone
told Holland that he understood Holland “may want to work a
deal or something along those lines.” Antone said he “was
definitely interested” in any information that Holland had to
offer and that he could guarantee Holland would not be
prosecuted for anything he disclosed. However, Antone also
clarified that the district attorney would make no promises for
Holland’s cooperation. Holland disclosed details to Antone
about the crimes at Rudy’s home, including Johnsen’s motive for
killing Juanita and Johnsen’s solicitation of fellow inmates.
Antone reminded Holland, “I’m not asking you to be a police
agent and do these things for me,” to which Holland responded:
“Oh, I do this on my own.”
Holland then told Antone that Johnsen had mentioned
being involved in a San Diego murder last year and that he
expected Johnsen to reveal his role in that crime later that
evening. Antone emphasized it was up to Holland whether he
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decided to inquire into the San Diego murder, saying, “I don’t
want get [sic] anything construed . . . where at some point in
time you come back and says, well I only did it for, cause Antone,
you know . . . said it would be okay.” Holland acknowledged that
he was not planning to ask Johnsen on behalf of the district
attorney and that he just wanted to know he would not be
prosecuted for lying to Johnsen. Antone confirmed that the
district attorney would not prosecute him for lying to Johnsen.
On July 3, Holland met with Antone without counsel. At
this tape-recorded meeting, Holland wanted assurances that a
leniency deal would be forthcoming. Antone explained that the
process of even arranging such a deal would require
coordination between multiple counties given the charges
pending against Holland, and Antone refused to say if any deal
was in the works. Holland told Antone he had convinced
Johnsen to write several incriminating notes, and Holland was
confident he could persuade Johnsen to prepare a signed
confession detailing “exactly what happened” at Rudy’s home.
Holland insisted that if he were to hand over that information
to convict Johnsen, it would only be used if he got a deal. Antone
left the room to confer with the deputy district attorney. Upon
his return, Antone refused to enter into any agreement, even
with a signed written confession.
In August, Holland called Antone to tell him that Johnsen
had accused Holland of being a snitch. To protect Holland from
potential retribution, the district attorney arranged for Holland
to be moved from the Stanislaus County jail to the San Joaquin
County jail.
By September, Holland refused to testify because the
district attorney had still not committed to any leniency
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agreement. After learning that they had secured a warrant to
search his jail cell, Holland promised to testify at trial about his
jailhouse conversations with Johnsen, all the notes they
exchanged, as well as Johnsen’s written confessions. On
September 4, Holland’s jail cell was searched; all of Johnsen’s
notes, including his confessions, and Holland’s handwritten
copies were confiscated and booked into evidence. Holland had
originally prepared “word for word” copies of Johnsen’s notes so
he could show Antone the useful information contained therein
without handing over Johnsen’s actual confessions until he
received a deal.
Before trial, Johnsen moved to suppress Holland’s
testimony, alleging that Holland was a government agent under
Antone’s direction and elicited inculpatory statements from
Johnsen about his arraigned offenses in violation of the Sixth
Amendment. During the suppression hearing, the court asked
Holland if “anyone from law enforcement t[old him] to continue
to gather information from [Johnsen].” Holland replied:
“Never.” Holland emphasized, “No one ever asked me to get
information on anything. I did this all on my own.”
In the end, the court observed, “Antone indicated he was
interested” in what Holland had to share regarding Johnsen’s
case, but he never “instruct[ed] [Holland] to elicit the
information” and he never promised anything in return.
Finding that neither of Holland’s meetings with Antone on June
26 and July 3 rendered him a government agent under the Sixth
Amendment, the court denied Johnsen’s motion to suppress.
Given their comprehensive detail, Holland’s testimony and the
incriminating notes Johnsen prepared became the cornerstone
of the prosecution’s case. After trial, the district attorney
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arranged for Holland’s state sentence to run concurrently with
his federal sentence.
2. Discussion
The Sixth Amendment to the United States Constitution
guarantees the assistance of counsel during all stages of a
criminal prosecution. In Massiah v. United States (1964) 377
U.S. 201, the high court held that once a defendant has been charged with any crime, any “government agent[]” who elicits incriminating statements from a defendant regarding that crime outside the presence of counsel violates this protection. (Id. at p. 206.) Statements made under such conditions “are inadmissible at a trial on the charges to which the statements pertain.” (People v. Dement (2011)53 Cal.4th 1, 33
, overruled on other grounds in People v. Rangel (2016)62 Cal.4th 1192
.) This prohibition on government agents applies equally to law enforcement officers and private persons enlisted by the government to elicit incriminating statements. “[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” (Kuhlmann v. Wilson (1986)477 U.S. 436, 459
.)
“A trial court’s ruling on a motion to suppress informant
testimony is essentially a factual determination, entitled to
deferential review on appeal.” (People v. Coffman & Marlow
(2004) 34 Cal.4th 1, 67(Coffman).) To prevail, Johnsen must show “ ‘that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.’ ” (Ibid.; see In re Wilson (1992)3 Cal.4th 945, 950
.)
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“Circumstances probative of an agency relationship include the
government’s having directed the informant to focus upon a
specific person, such as a cellmate, or having instructed the
informant as to the specific type of information sought by the
government.” (In re Neely (1993) 6 Cal.4th 901, 915 (Neely).)
Johnsen argues that the court erred in denying his motion
to suppress Holland’s testimony. He claims that Holland was
acting as a government agent as early as his June 26 meeting
with Antone and thus the Sixth Amendment demands
suppression of any information Holland exacted from Johnsen,
including his 14-page signed, written confession. There is no
question that Holland “ ‘deliberately elicited incriminating
statements’ ” (Coffman, supra, 34 Cal.4th at p. 67) from
Johnsen, so the merits of Johnsen’s claim turn on whether
Holland was in fact acting as a government agent when he
elicited Johnsen’s confession. We conclude he was not.
“Where the informant is a jailhouse inmate, the [agent
prong of the] test is not met where law enforcement officials
merely accept information elicited by the informant-inmate on
his or her own initiative, with no official promises,
encouragement, or guidance.” (Neely, supra, 6 Cal.4th at
p. 915.) Although Johnsen argues that Antone encouraged
Holland to elicit more incriminating information, his argument
has no basis in the record before us. Holland testified that he
primarily told his attorney about Johnsen’s confessions because
he was worried that Johnsen would avoid prosecution and
continue to murder others, not because of any desire to negotiate
a more lenient sentence for himself. During his June 26 meeting
with Antone, Holland was repeatedly informed that the district
attorney would accept any useful information Holland had to
offer about Johnsen’s case but would not make any promises of
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leniency. (People v. Williams (1988) 44 Cal.3d 1127, 1141 [“a
general policy of encouraging inmates to provide useful
information does not transform them into government agents”].)
While it is clear that early on Holland recognized
Johnsen’s confessions were sufficiently valuable that they could
be leveraged into some deal, Holland also understood he was
eliciting Johnsen’s confessions “on [his] own” initiative without
external direction, guidance, or encouragement. Holland
acknowledged this when he told Antone, “I do this on my own,”
and again when he testified in court, “I did this all on my own.”
(See People v. Fairbank (1997) 16 Cal.4th 1223, 1247[“If an informant ‘acts on his own initiative,’ even if he interrogates the accused, ‘the government may not be said to have deliberately elicited the statements.’ ”].) In addition, after each meeting with Antone, Holland signed a form clarifying that Holland received nothing in return for his disclosures. And unlike a repeat informant, Holland had never given authorities information about another inmate, so there is no indication that Holland was working under a preexisting agreement or continuing practice of collaboration with law enforcement. (See, e.g., United States v. Henry (1980)447 U.S. 264, 270, fn. 7
.)
As the trial court acknowledged, Holland was likely
motivated in part by “some self-interest . . . in working a deal for
himself.” Likewise, Antone’s instruction that Holland should
not consider himself a police agent “can be deemed as
self-serving.” For this reason, Antone’s statements that Holland
acted on his own do not, by themselves, establish that no agency
relationship existed. (See Coffman, supra, 34 Cal.4th at p. 67
[noting that a preexisting agreement “need not be explicit or
formal”]; Rest.3d Agency, § 1.02 com. a, p. 50 [“Although agency
is a consensual relationship, how the parties to any given
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relationship label it is not dispositive. Nor does party
characterization or nonlegal usage control whether an agent has
an agency relationship . . . .”].) Rather, we take into account the
totality of the circumstances, including the possibility that
attempts to disclaim agency may be self-serving. The trial court
considered this possibility and weighed it against Holland’s
“testimony and demeanor,” which suggested he was “ethically
motivated.” The court also noted that an agency theory
appeared inconsistent with Holland’s refusal to “give [Antone]
the information” and the need “to serve a search warrant to get
it.” The court reasonably concluded that “based on the totality
of the circumstances in this case” and “focusing on the state’s
conduct as a whole,” Holland did not act as a government agent.
The fact that Holland ultimately received leniency in
return for the information he elicited did not transform him into
a government agent because the district attorney did not offer a
leniency deal or even say a deal was in the works until
September, months after Johnsen had made his incriminating
statements to Holland. Although the district attorney did
appear to be back-channeling with other prosecutors’ offices to
work out a potential deal, there is no evidence that Holland was
aware of such discussions aside from Antone’s brief comment
that a deal of that magnitude would require significant
coordination between various district attorneys’ offices. We
conclude Holland was not acting as a government agent and that
the court did not err when it admitted Holland’s testimony about
Johnsen’s incriminating statements pertaining to his crimes at
Rudy’s home.
In addition, Johnsen challenges Holland’s efforts to elicit
inculpatory statements regarding his role in Holloway’s death.
This claim also lacks merit. At the time Holland elicited these
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incriminating statements, Johnsen had not been charged with
or arraigned on any crimes associated with Holloway’s death.
The Sixth Amendment protects a defendant’s right to counsel on
arraigned charges, not unarraigned offenses. (Kirby v. Illinois
(1972) 406 U.S. 682, 688–689.) Even assuming the Sixth
Amendment applied, we find no violation. As discussed,
Holland elicited all of the incriminating information about
Holloway’s death from Johnsen on his own accord as a private
citizen, not as a government agent.
III. GUILT PHASE
A. Alleged Instructional Errors
Johnsen argues the trial court committed reversible error
by failing to instruct the jury sua sponte on various jury
instructions with respect to Landrum’s testimony. In
particular, Johnsen asserts that because Landrum was an
accomplice to Johnsen’s crimes, the trial court should have
advised the jury with CALJIC No. 3.10 [definition of
accomplice]; CALJIC No. 3.11 [corroboration requirement];
CALJIC No. 3.18 [accomplice testimony should be viewed with
distrust]; and CALJIC No. 8.83.3 [corroboration requirement for
special circumstances]. He also challenges the court’s decision
to grant defense counsel’s request for the jury to be instructed
with CALJIC No. 2.11.5 [limitation on discussing why
coparticipant is not being prosecuted] as well as the court’s
refusal to give certain special instructions. According to
Johnsen, these instructional errors violated his rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution; article I, sections 7, 15, and 16 of the California
Constitution; and California law.
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1. Accomplice Testimony and Corroboration
Section 1111 bars any conviction predicated on “testimony
of an accomplice unless it [is] corroborated by such other
evidence as shall tend to connect the defendant with the
commission of the offense.” An accomplice is “one who is liable
to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the
accomplice is given.” (Ibid.) “To be chargeable with an identical
offense, a witness must be considered a principal under section
31.” (People v. Lewis (2001) 26 Cal.4th 334, 368–369 (Lewis); see § 31 [defining “principal”].) In other words, there must be evidence of that person’s “guilt . . . based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (People v. McCoy (2001)25 Cal.4th 1111, 1117
, italics omitted.)
Only when there is “substantial evidence that a witness
who has implicated the defendant was an accomplice” must the
trial court instruct on “the principles regarding accomplice
testimony.” (People v. Houston (2012) 54 Cal.4th 1186, 1223; seeLewis, supra,
26 Cal.4th at p. 369
[“Substantial evidence is ‘evidence sufficient to “deserve consideration by the jury.” ’ ”].) “ ‘But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.’ ” (People v. Gonzales and Soliz (2011)52 Cal.4th 254, 302
.)
The Attorney General contends there is minimal evidence
Landrum aided and abetted Johnsen’s offenses. According to
the Attorney General, Landrum was merely an accessory to
Johnsen’s crimes — i.e., a “person who, after a felony has been
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committed, harbors, conceals or aids a principal in such felony,
with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that
said principal has committed such felony or has been charged
with such felony or convicted thereof . . . .” (§ 32.) Because an
accessory is not “liable to prosecution for the identical offense
charged against the defendant on trial,” an accessory’s
testimony does not implicate section 1111. (§ 1111; see People
v. Horton (1995) 11 Cal.4th 1068, 1113–1114.)
We agree that the trial court did not err by declining to
give accomplice instructions. The trial evidence was
overwhelmingly oriented toward the theory that Johnsen
committed the crimes alone. As noted, the jury heard testimony
that Landrum was at Johnsen’s home the evening before the
March 1 crimes and that Landrum drove to his mother’s home
around 9:00 p.m. and spent the night there. Landrum also
explained how he came to briefly possess the property taken
from Rudy’s home — namely, Johnsen phoned him from the jail
and told him to dispose of the stolen property, which Johnsen
had stored in his own home. Landrum further testified that
Johnsen tossed Rudy’s key and a ball peen hammer out the car
window on their drive to San Jose. He also disavowed
participating in any of the crimes in Rudy’s home, including the
February burglary where Johnsen tried to enlist Landrum into
stealing Rudy’s television with him.
Lee also explained how Landrum’s mother took possession
of Rudy’s stolen property after Johnsen frantically dropped off a
paper bag with the stolen goods at Lee’s apartment. The jury
heard Thorne’s testimony, in which he described notes from
Johnsen instructing him to frame Landrum for the crimes at
Rudy’s home. Although Johnsen accused Landrum of
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participating in his crimes at Rudy’s home in his earliest two
accounts to Holland, Johnsen later admitted that he was solely
responsible. Most importantly, Johnsen’s 14-page handwritten
and signed confession was admitted into evidence alongside
Holland’s testimony that Johnsen eventually conceded that he
had committed all of the crimes on his own.
In the end, the only evidence at trial that potentially
connected Landrum to the March 1 crimes were Johnsen’s
earliest statements to Holland attempting to frame Landrum,
which he later retracted, and conflicting witness testimony
about whether Landrum had a bandage on his hand on March
1. Landrum testified against Johnsen pursuant to a grant of
immunity on these accessory offenses. He was never charged or
convicted of any principal offenses associated with the crimes
that took place in Rudy’s home. We therefore conclude that
Johnsen’s claim that the court failed to instruct the jury to view
Landrum’s testimony with skepticism lacks merit.
2. CALJIC No. 2.11.5 and Special Jury Instruction
No. 28
Before trial, Johnsen’s counsel moved to have the jury
instructed on CALJIC No. 2.11.5 and special instruction No. 28.
CALJIC No. 2.11.5 advises the jury to neither discuss nor
consider why other individuals are not also being prosecuted.
special instruction No. 28 would have modified CALJIC No.
2.11.5 to “permit the jurors to consider evidence of ‘the guilt of
any other person’ in determining whether there was reasonable
doubt of the appellant’s guilt.” At the time of Johnsen’s request,
the court briefly considered the special instruction in
conjunction with CALJIC No. 2.11.5 and observed that the
relevance of the special instruction would depend on how
Johnsen presented his theory of the case. Accordingly, the court
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placed the special instruction in its “possible” file for
consideration “[d]epending on how the argument goes.”
After closing arguments, the court instructed the jury
using the unmodified version of CALJIC No. 2.11.5 at the
request of Johnsen’s counsel. Johnsen did not reintroduce his
request for special instruction No. 28, and the court did not
revisit it or rule on it one way or another. The court scribbled
on the special instruction that it had been “[g]iven elsewhere.”
On appeal, Johnsen now contends that the trial court erred both
by providing CALJIC No. 2.11.5 and by refusing to provide
special instruction No. 28.
Johnsen begins by arguing that he did not forfeit his
CALJIC No. 2.11.5 claim by requesting the instruction and by
not asking the court to limit its application. Even assuming
Johnsen’s argument was not forfeited, we find that the
instruction was not erroneous. It is well established that
CALJIC No. 2.11.5 “should be clarified or not given when a
nonprosecuted participant testifies at trial.” (People v. Crew
(2003) 31 Cal.4th 822, 845(Crew).) Whether a person “ ‘was or may have been involved in the crime[s]’ for the purposes of CALJIC No. 2.11.5 is a ‘separate issue’ [citation] from . . . whether [he or she] was an accomplice.” (People v. Williams (1997)16 Cal.4th 153, 226
.) On the other hand, this instruction
“is not error when it is given together with other instructions
that assist the jury in assessing the credibility of witnesses.”
(Crew, at p. 845)
The Attorney General observes that in Crew, we upheld a
conviction where the jury was instructed with CALJIC No.
2.11.5 because the jury also received instructions to consider
“any evidence of witness credibility, including the existence or
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nonexistence of a bias, interest, or other motive (CALJIC No.
2.20), and to consider the instructions as a whole (CALJIC No.
1.01).” (Crew, supra, 31 Cal.4th at p. 845.) Further, during
closing arguments in Crew, defense counsel raised the
unprosecuted coparticipant’s immunity agreement as a ground
to discount his testimony. (Ibid.) Given these considerations,
we concluded in Crew that the trial court’s inclusion of CALJIC
No. 2.11.5 was not error.
Similar circumstances were present here. Not only was
the jury advised with both CALJIC No. 2.20 and CALJIC No.
1.01, but Johnsen’s counsel also warned the jury during closing
arguments that “Mr. Landrum has been given immunity from
prosecution for stolen property and drug offenses. This is some
evidence of motive of bias to testify in this case.” Moreover, the
defense’s case largely rested on the theory that Landrum, not
Johnsen, committed the crimes at Rudy’s home. Central to this
theory were Johnsen’s efforts to show Landrum’s mother was
Landrum’s only alibi the night of February 29 and the morning
of March 1, and that he variously handled the goods taken from
Rudy’s home. At the same time, the defense sought to
undermine Landrum’s credibility by (1) arguing his testimony
was unreliable because he had ingested “crank” the night before
and (2) introducing testimony that Landrum had a bandaged
wound on his hand during the Johnsens’ move on March 1. As
a result, notwithstanding CALJIC No. 2.11.5, the jury received
other instructions to assist them in evaluating Landrum’s
credibility as a nonprosecuted coparticipant. Consequently,
Johnsen’s claim lacks merit.
Johnsen has also failed to establish instructional error
with respect to special instruction No. 28. There is no precedent
that compels the trial court to instruct the jury specifically on
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the reasonable doubt standard in the context of third party
culpability when the jury has already received a general
instruction on the reasonable doubt standard. (See People v.
Gutierrez (2009) 45 Cal.4th 789, 825 [“because the jury could
have acquitted defendant had it believed that a third party was
responsible for [the victim’s] death, no third party culpability
instruction was necessary”].)
3. Special Jury Instruction No. 14
Johnsen also challenges the court’s denial of related
defense-requested instructions, which he asserts “were
necessary to guide the jury’s consideration of Landrum’s
testimony” and of third party culpability.
Special instruction No 14 read: “The testimony of a
witness who provides evidence against a defendant for
immunity from punishment, or for any other personal
advantage, must be examined to determine whether this
testimony has been affected by the grant of immunity, by
personal interest, by expectation of reward, or by prejudice
against the defendant.” In denying special instruction No. 14,
the court found that it would be duplicative of CALJIC No. 2.20.
As noted, CALJIC No. 2.20 permits the jury to consider any
evidence of witness credibility, including “[t]he existence or
nonexistence of a bias, interest, or other motive.” (CALJIC No.
2.20.) The Attorney General reiterates special instruction No.
14 would have been redundant. We agree. Having been
instructed with CALJIC No. 2.20, the jury was already aware
that it could consider any “bias, interest, or other motive” in
assessing witness credibility, including a grant of immunity.
Johnsen claims our reasoning in People v. Hunter (1989)
49 Cal.3d 957 supports his position. But in Hunter, we found no
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error in the court’s refusal to instruct the jury to view an
immunized witness’s testimony with “ ‘greater care and caution’
than the ‘testimony of an ordinary witness.’ ” (Id. at p. 976.) “No
California authority supports [Johnsen’s] contention that an
immunized witness, unlike an informant, is so analogous to an
accomplice that a trial court must, upon request, give cautionary
instructions as to the trustworthiness of immunized witness
testimony.” (Id. at p. 977.)
B. DNA Evidence Chain of Custody
Johnsen contends the trial court improperly rejected his
motion to exclude the expert testimony of molecular biologist
Julie Cooper. During trial, Cooper testified about her analysis
of DNA extracted from hair found on pantyhose in Rudy’s home.
Before Cooper analyzed the hair, it was accidentally broken into
two hair fragments at the Department of Justice’s crime lab in
Modesto. On appeal, Johnsen asserts the trial court abused its
discretion by finding that the hair’s chain of custody had been
established with reasonable certainty.
1. Background
Several prosecution witnesses testified regarding the
hair’s chain of custody from its initial discovery until the point
where the DNA analysis dissolved it. Detective Buehler first
discovered a pair of pantyhose on an armchair in Rudy’s living
room. The pantyhose were delivered to the state Department of
Justice’s lab in Modesto. There, criminalist Dr. Richard Lynd
discovered a single four-inch blond hair inside. Through
microscopic analysis, Dr. Lynd concluded the hair came from a
Caucasian person’s head, which may have been Johnsen’s, given
similarities in color, length, texture, and microscopic
characteristics. Dr. Lynd’s analysis ruled out Juanita, Rudy,
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and Landrum as possible sources of the hair. Later, the hair
was brought to a Stockton lab, where it was analyzed. The
criminalist sealed the hair in a plastic petri dish with tape and
returned it to the Modesto lab.
On June 3, 1992, Dr. Lynd unsealed the petri dish to
photograph the hair. While doing so, he found the hair “taped
to the plastic container.” In his efforts “to get [the hair] out,” Dr.
Lynd inadvertently “broke the hair in two pieces.” He
photographed the evidence on a slide and returned it to storage.
Two weeks later, Dr. Lynd retrieved the evidence to take
another round of photographs. He then “removed the hair from
the slide, rinsed the mounting media off of the hair and
packaged it for shipping for the DNA analysis.” Dr. Lynd did
not normally wear a mask, hairnet, or gloves while working.
On June 22, 1992, Detective Bill Grogan transported the
hair evidence to Cellmark Diagnostics, a DNA testing lab.
Cooper, a Cellmark molecular biologist, opened the container to
find “two very fine blond hairs” and “nothing else.” Cooper
testified that she “did not examine both ends of both pieces of
hair [with] more than just a quick glance,” but she thought “at
least one of those hairs did have an end which looked thicker
and could have been a pulled root.”
Three months later, Cooper again visually examined the
hair. She noticed that the “[t]wo pieces of hair . . . looked like
they had an end that breathed out a bit which, from my
experience, I know that hairs usually with a root, that’s the
fatter end.” She said she was simply making a lay observation
because Cellmark is “not a hair analyzing laboratory.” She
clipped what appeared to be the fatter ends off the hair and
placed them into a single tube for PCR analysis. This process
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consumed the hair pieces altogether. As a result, the jury heard
Cooper’s testimony on the results of her DNA analysis, but the
hair fragments were never admitted into evidence at trial.
Upon hearing Cooper’s testimony, Johnsen’s counsel did
not move to strike her findings based on inadequate chain of
custody or on any other ground. After hearing testimony on the
hair’s chain of custody, the court credited Dr. Lynd’s explanation
that he accidentally broke a single hair into two when
extricating it from the tape as adequate justification for the two
hair pieces. The court also noted that Cooper’s subsequent
impression that “there were two hairs [that] both had roots” was
easily explained because her perception was based on mere
visual observation that both hairs “looked like they had an end
that breathed out a bit” without actually confirming that they
were in fact root ends. The court accepted Cooper’s assertion
that she “never looked at [the hairs] closely.” In the end, the
court found there was only “bare speculation that it’s not the
same hair” and that the speculation should bear on the weight
of the evidence, not admissibility.
2. Discussion
Johnsen argues that the apparent presence of root ends on
both hairs is a “critical anomaly” and “indicat[es] that the hair
evidence had been altered either by contamination or by
substitution/addition of one or both of the hair fragments.” The
crux of Johnsen’s claim is that it is factually impossible to break
a single hair with one root end into two hairs each with root
ends. Given this, Johnsen complains that the presence of two
hairs each with root ends is clear evidence of tampering.
Although Johnsen’s counsel expressed general concerns
about the hair’s chain of custody at trial, Johnsen never objected
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to Cooper’s testimony on the record before or after it was
introduced. Thus, the Attorney General asserts, Johnsen’s
claim is forfeited. Johnsen concedes that the record does not
show his counsel moved to strike Cooper’s testimony at any
point. Nevertheless, Johnsen asserts his trial counsel rendered
ineffective assistance (1) by eliciting testimony from Cooper
reiterating that Johnsen’s DQ-Alpha type matched the blond
hair found in the pantyhose and (2) by failing to have Cooper’s
testimony stricken altogether.
Even assuming Johnsen’s claim is not forfeited, we reject
it on the merits. We clarified in People v. Riser (1956) 47 Cal.2d
566(Riser), that “the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering . . . .” (Id. at p. 580.) There, we “set[] forth the rules for establishing chain of custody: ‘The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.’ ” (People v. Diaz (1992)3 Cal.4th 495, 559
(Diaz).)
The trial court acted within its discretion when it held the
district attorney had properly accounted for the hair’s chain of
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custody and thus Cooper’s testimony offered only “the barest
speculation that there was tampering.” (Riser, supra, 47 Cal.2d
at p. 581.) By furnishing firsthand testimony from Dr. Lynd that he accidentally broke one hair into two pieces at the Modesto lab, the prosecution made “at least a prima facie showing that the evidence had not been tampered with,” at least not in any way that could alter the subsequent forensic analysis. (People v. Williams (1989)48 Cal.3d 1112, 1135
.) Aside from Cooper’s testimony that she may have seen two root ends, there is no evidence supporting Johnsen’s theory that the hair was tampered with. The trial court properly held that testimony about the hair was admissible and that the discrepancies, if any, raised by Cooper’s visual perception go to the weight of that evidence. (Diaz, supra,3 Cal.4th at p. 559
.)
C. Alleged Error in Stating Reasonable Doubt
Standard
Johnsen alleges that statements made by the prosecution
and defense diluted the reasonable doubt standard and shifted
the burden of proof to Johnsen. He complains that this error
violated his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights and corresponding rights in the state Constitution.
1. Background
In his opening argument, the district attorney recited the
jury instruction defining reasonable doubt (CALJIC No. 2.90),
and he then informed the jury:
“[H]aving that definition which the Court will
read to you in mind, you can see that reasonable
doubt doesn’t mean a mere possible doubt. It does
not mean proof to an absolute certainly [sic] and it
doesn’t mean proof beyond a shadow of a doubt.
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“I’m going to suggest to you that, based on this
definition of reasonable doubt, if any one of you feels
that he or she might have a reasonable doubt, he or
she should be able to do three things. One, they
should be able to put the doubt into words; two, they
should be able to point to something in the evidence
that makes them have that doubt; and, three, that
juror should be able to convince his or her fellow
jurors that the doubt is reasonable.
“If you can’t do all three of these things then I
suggest to you, ladies and gentlemen, the doubt that
you are contemplating is the imaginary or mere
possible doubt that is referred to in the Court’s
instruction.”
Johnsen’s counsel did not object at the time to the
prosecution’s characterization of the reasonable doubt standard.
During closing argument, however, defense counsel
directly confronted the prosecutor’s opening comments:
“[The prosecutor] talked about a method to decide
whether or not any doubt that you might have on
any particular fact is reasonable.
“And I agree with the first two steps that he said
to take, and that number one step is articulate the
doubt. If you have a doubt that you can talk about,
if you can put it into words, if you can articulate it,
it may be reasonable doubt. If you can point to a
particular piece of evidence to support that doubt
and say, “I don’t feel good about this evidence and it
makes me doubt which it’s offered to prove,” those
are two steps that you should do.
“However, [the prosecutor] is wrong on the third
step. You’re not required and you don’t need to be
able to convince your fellow jurors regarding
whether or not the doubt is reasonable. Your job is
not to convince others. Your job is to deliberate.
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Your job is to deliberate and decide in your own mind
whether each piece of evidence is reasonable,
whether it’s unreasonable, what it means, what it
doesn’t mean. And if you have doubt, you’re entitled
to retain that doubt and to consider it a reasonable
doubt, even though you cannot convince another
juror or the rest of your fellow jurors about that
particular issue.
...
“I can’t articulate for you or I can’t say for you
what is reasonable and what is unreasonable but I
think if you can state it in your mind, if you can talk
about it to someone else and point to a piece of
evidence that you think is crucial and critical to the
prosecution’s case that you have a doubt about, that
creates in your mind a doubt which is reasonable,
and you can talk about[,] then you have not been
convinced beyond a reasonable doubt, to a moral
certainty.
“It’s not necessary, as I said before, it’s not
necessary that you’re able to convince anybody else
in this jury. Your duty is to deliberate, which means
to discuss, listen with an open mind, state your
opinion, listen to other people’s opinions. But if you
believe something to be such that it creates a doubt
in your mind and you can’t get rid of that doubt then
you don’t have to change your mind. You’re entitled
to maintain that opinion as long as you deliberate
fairly.”
During his rebuttal, the prosecutor clarified:
“Reasonable doubt is the burden of proof which
the People shoulder. And the operative word is
‘reasonable.’ If you don’t have any method of
assessing whether or not any doubt that you have is
reasonable or unreasonable, then the instruction is
meaningless. The concept is useless.
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“And you have to test the reasonableness of any
doubt. And one of the ways you do that is to discuss
any perceived doubt with your fellow jurors, put it
into words, test it, and see if anybody else agrees
with you that that is a reasonable doubt. That’s how
you test it. There’s no other way to assess any doubt.
There’s no way to tell whether a doubt is fanciful,
imaginary, or just a mere possible doubt.”
After closing arguments, the court instructed the jury with
CALJIC No 2.90. As given, the instruction provided:
“A defendant in a criminal action is presumed to
be innocent until the contrary is proved, and in the
case of a reasonable doubt whether guilt is
satisfactorily shown, the defendant is entitled to a
verdict of not guilty. This presumption places upon
the People the burden of proving the defendant’s
guilt beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not
a mere possible doubt because everything relating to
human affairs and depending on moral evidence is
open to some possible or imaginary doubt. It is the
state of the case which, after the entire comparison
and consideration of all the evidence, leaves the
mind of the jurors in that condition that they cannot
say they feel an abiding conviction to a moral
certainty of the truth of the charge.”
The court also instructed the jury with CALJIC No. 17.40.
As given, that instruction provided:
“The People and the defendant are entitled to the
individual opinion of each juror.
“Each of you must consider the evidence for the
purpose of reaching a verdict if you can do so. Each
of you must decide the case for yourself, but should
do so only after discussing the evidence and
instructions with the other jurors.
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“Do not hesitate to change an opinion if you are
convinced it is wrong. However, do not decide any
question in a particular way because a majority of
the jurors, or any of them, favor such a decision.”
2. Discussion
As an initial matter, the Attorney General argues that
Johnsen forfeited his challenge to the alleged misconduct. “It is
well settled that making a timely and specific objection at trial,
and requesting the jury be admonished (if jury is not waived), is
a necessary prerequisite to preserve a claim of prosecutorial
misconduct for appeal.” (People v. Seumanu (2015) 61 Cal.4th
1293, 1328(Seumanu).) Johnsen did not object to the district attorney’s characterization of the reasonable doubt standard. While failure to object would not forfeit his claim when doing so would have been futile or an admonition would be insufficient to cure the purported harm, the record does not suggest that a timely objection would be futile or insufficient. (People v. Centeno (2014)60 Cal.4th 659, 674
(Centeno).) Thus, Johnsen
has forfeited this challenge on appeal.
Johnsen claims that his counsel rendered ineffective
assistance by failing to object. To demonstrate ineffective
assistance of counsel, Johnsen “must show that counsel’s
performance was deficient, and that the deficiency prejudiced
the defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521, citing Strickland v. Washington (1984)466 U.S. 668, 687
(Strickland).) On direct appeal, a finding of deficient performance is warranted where “(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013)57 Cal.4th 986, 1009
.)
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“[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not
find ineffective assistance of counsel on appeal unless there
could be no conceivable reason for counsel’s acts or omissions.”
(People v. Weaver (2001) 26 Cal.4th 876, 926.)
We have said that “the decision . . . whether to object to
comments made by the prosecutor in closing argument is a
highly tactical one.” (People v. Padilla (1995) 11 Cal.4th 891,
942.) Instead of registering a contemporaneous objection, defense counsel appears to have made a tactical choice to undermine the prosecutor in his own closing remarks. In Centeno, we held that there was “no reasonable tactical purpose” for defense counsel’s failure to object to the prosecutor’s use of an improper hypothetical that was reasonably likely to have misled the jury regarding the reasonable doubt standard. (Centeno, supra,60 Cal.4th at p. 676
.) The prosecutor in Centeno mischaracterized the reasonable doubt standard for the first time during rebuttal arguments. By contrast, the prosecutor in this case made nearly identical misstatements during both his opening and rebuttal arguments. Defense counsel may have made a strategic decision to rely on the counterarguments he had already made during his closing statement rather than objecting to the prosecutor’s rebuttal statements. Such a tactical choice was not objectively unreasonable underStrickland, supra,
466 U.S. 668
.
Even assuming Johnsen did not forfeit the claim of
prosecutorial misconduct, his allegations do not warrant
reversal. To determine whether a prosecutor has committed
reversible misconduct in this context, we examine (1) whether it
was reasonably likely that the prosecutor’s statements misled
the jury on reasonable doubt and (2) whether there is “a
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reasonable probability that the prosecutor’s argument caused
one or more jurors to convict defendant based on a lesser
standard than proof beyond a reasonable doubt.” (Centeno,
supra, 60 Cal.4th at pp. 674, 677.)
We find that the prosecutor’s statements were reasonably
likely to mislead the jury. As to the prosecutor’s statement that
the reasonable doubt standard requires jurors “to point to
something in the evidence that makes them have that doubt,”
we found a similar mischaracterization to be misconduct in
People v. Hill (1998) 17 Cal.4th 800 (Hill). There, the prosecutor
“addressed the concept of reasonable doubt, stating: ‘it must be
reasonable. It’s not all possible doubt. Actually, very simply, it
means, you know, you have to have a reason for this doubt. There
has to be some evidence on which to base a doubt.’ ” (Id. at p. 831,
first italics added.) Over a defense objection, the court allowed
the prosecutor to continue, at which point she informed the jury:
“ ‘There must be some evidence from which there is a reason for
a doubt. You can’t say, well, one of the attorneys said so.’ ”
(Ibid., italics added by Hill.) While we observed those remarks
were “somewhat ambiguous,” (ibid.) we concluded that the
prosecutor had engaged in misconduct because it was
“reasonably likely” the jury understood this comment “to mean
defendant had the burden of producing evidence to demonstrate
a reasonable doubt of his guilt” (id. at p. 832). We ultimately
reversed Hill’s judgment due to a litany of misconduct, including
error in diluting the reasonable doubt standard. (Id. at p. 815.)
Here, as in Hill, it is reasonable to construe the
prosecutor’s remarks — “[t]here has to be some evidence on
which to base a doubt” — to preclude jurors from having
reasonable doubt solely based on the insufficiency of the
prosecution’s evidence. (See Hill, supra,17 Cal.4th at p. 832;
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People v. Young (2005) 34 Cal.4th 1149, 1195–1196 [prosecutor
“may not suggest that ‘a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her
innocence’ ”].) The prosecutor’s remarks also erroneously
suggest that a juror is precluded from considering factors such
as common sense and life experience to form a reasonable doubt.
The fact that defense counsel not only did not object to the
misstatement but affirmatively agreed with it heightened the
likelihood that the misstatement misled the jury.
The prosecutor also misstated the law by advising the jury
that in evaluating whether a perceived doubt is reasonable, a
“juror should be able to convince his or her fellow jurors that the
doubt is reasonable.” It is misconduct to “ ‘attempt to absolve
the prosecution from its prima facie obligation to overcome
reasonable doubt on all elements.’ ” (Hill, supra, 17 Cal.4th at
p. 829.) “Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous.” (People v. Collins (1976)17 Cal.3d 687, 693
, superseded by statute on another ground as stated in People v. Boyette (2002)29 Cal.4th 381, 462, fn. 19
.) Embedded in this right is the well-settled principle that a single juror may validly hold reasonable doubt even if all other jurors disagree. Under such a scenario, the jury has not reached a unanimous verdict, and the defendant may not be found guilty. (See Ramos v. Louisiana (2020) __ U.S. __, __ [140 S.Ct. 1390, 1395
].) Thus, the prosecutor rendered an
incorrect characterization of the reasonable doubt standard by
suggesting that any single juror’s personally held doubt cannot
be “reasonable” unless at least he or she can persuade another
juror. The Attorney General does not dispute that the
prosecutor misstated the applicable legal standard.
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Nevertheless, we conclude that it was not reasonably
likely that the prosecutor’s misstatements caused one or more
jurors to convict Johnsen on a standard lower than beyond a
reasonable doubt. The court provided the jury with correct
instructions on reasonable doubt and directed the jury to follow
these instructions in the event of any conflicting statements.
The court began by instructing the jury with CALJIC No. 1.00,
which provided in relevant part: “You must accept and follow
the law as I state it to you, whether or not you agree with the
law. If anything concerning the law said by the attorneys in
their arguments or at any other time during the trial conflicts
with my instructions on the law, you must follow my
instructions.” The court then instructed with CALJIC No. 2.90,
which stated that “[a] defendant in a criminal action is
presumed to be innocent until the contrary is proved . . . . This
presumption places upon the People the burden of proving the
defendant’s guilt beyond a reasonable doubt.” This instruction
clarified that Johnsen is presumed innocent until proven guilty
and that the prosecutor had the sole obligation to present
evidence of guilt beyond a reasonable doubt. The court also
provided CALJIC No. 17.40, which stated that the parties “are
entitled to the individual opinion of each juror,” that each juror
“must decide the case for yourself,” and that no juror should
“decide any question in a particular way because a majority of
the jurors or any of them favor such a decision.” With this
instruction, each juror presumably understood that he or she
was entitled to make his or her own assessment of reasonable
doubt and that persuading “a majority of the jurors or any of
them” is not necessary. Defense counsel also stressed to the
jury: “[I]t’s not necessary that you’re able to convince anybody
else in this jury,” and “if you believe something to be such that
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it creates a doubt in your mind and you can’t get rid of that doubt
then you don’t have to change your mind. You’re entitled to
maintain that opinion as long as you deliberate fairly.”
In addition to the prosecutorial misconduct claim, Johnsen
alleges his counsel rendered ineffective assistance by agreeing
with the prosecutor’s assertion that jurors must be able to “point
to something in the evidence” that supports their reasonable
doubt. We need not decide whether the decision to agree with
the prosecutor on this point was deficient because, even if it was,
Johnsen was not prejudiced. (See Strickland, supra, 466 U.S. at
p. 697 [“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that course should
be followed”].) Just as instructing with CALJIC Nos. 1.00, 2.90
and 17.40 mitigated any misimpression the prosecutor’s
misstatements of the reasonable doubt standard would have
given, it likewise reduced any risk the jury would be misled by
defense counsel’s similar misstatements.
In sum, we find no reasonable probability that the
prosecutor’s or defense counsel’s misstatements caused any
jurors to convict Johnsen based on a lesser standard than proof
beyond a reasonable doubt.
IV. PENALTY PHASE
A. Juror Misconduct
Johnsen claims Juror Y.P.’s out-of-court discussion with
her priest on the Catholic Church’s (the Church) position on
capital punishment just before the penalty phase violated his
rights under the First, Sixth, Eighth, and Fourteenth
Amendments. He argues that the court (1) did not conduct an
adequate investigation into Juror Y.P.’s misconduct and (2)
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should have removed Juror Y.P. on its own motion because her
misconduct biased her against Johnsen.
1. Background
On March 10, the court adjourned for a two-week break in
advance of the penalty phase. Before dismissing the jury, the
court said: “Remember it’s your duty not to converse among
yourselves or with anyone else . . . or to form or express any
opinion thereon until the cause is finally submitted to you.”
The next day, Juror Y.P. reached out to her Catholic priest
over the phone. Leaving a voicemail, Juror Y.P. inquired
whether it was a sin for Catholics to vote to impose the death
penalty. The priest returned her call later that day and
informed her that he had spoken to a different judge about her
message. When Juror Y.P. reiterated her question, the priest
replied that he would answer her question, but he advised her
that she had a duty to disclose this conversation to the judge
presiding over Johnsen’s case. Juror Y.P. agreed to do so.
The priest then asked her whether the Church’s views
would change the way she felt about the case. She said no, she
simply wanted to know the Church’s views. He then told Juror
Y.P. that voting for the death penalty was not a sin as the
Church “do[es] believe in capital punishment.” Shortly
thereafter, Juror Y.P. called the court and spoke to the bailiff.
According to the bailiff, Juror Y.P. said she had asked a priest
about the death penalty and “the priest told her that the
church’s position was that it wasn’t against the death penalty.”
A few days later, the court, prosecutor, and defense
counsel convened to discuss the juror’s out-of-court conduct. The
court noted that Juror Y.P. had violated her oath not to discuss
any aspect of Johnsen’s case with nonjurors. Then, with both
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attorneys present, the court phoned Juror Y.P. During the call,
Juror Y.P. stressed that she had not discussed any details about
Johnsen’s case with her priest. She said she simply inquired
about the Church’s position on capital punishment because she
was “just curious to know if it was a sin.” Despite her curiosity,
Juror Y.P. insisted, “Even if [the priest] were to tell me yes, it is
a sin, it doesn’t mean I wouldn’t [vote for the death penalty] or
vice versa. I just wanted to know.”
The court then gave the parties an opportunity to question
Juror Y.P. They declined to do so. After ending the call with
Juror Y.P., the court informed both parties, “[I] don’t see any
reason to do anything” about Juror Y.P.’s conduct. According to
the court, Juror Y.P. “shouldn’t have actually been talking about
the death penalty, although we didn’t really specifically tell
them not to talk about the death penalty. But it does involve
the case.” Defense counsel observed, “I think it’s technically a
violation but I don’t think there’s much substance to it.” In the
end, neither party accepted the court’s invitation “to bring a
motion” to remove Juror Y.P. from the jury.
2. Discussion
The Attorney General argues that Johnsen forfeited his
juror misconduct claims because he did not ask the court to
conduct further inquiry, nor did he ask the court to remove Juror
Y.P. However, the trial court has an independent “duty to
conduct an investigation when the court possesses information
that might constitute good cause to remove a juror . . . whether
or not the defense requests an inquiry, and indeed . . . even if
the defense objects to such an inquiry.” (People v. Cowan (2010)
50 Cal.4th 401, 506.) Thus, Johnsen’s failure to object at trial
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did not forfeit his claim that the court failed to adequately
investigate alleged juror misconduct.
As for Johnsen’s claim that the trial court erred by failing
to remove Juror Y.P. on its own motion, we have held that a
defendant forfeits such claims of prejudicial juror misconduct
when defense counsel does not “propose additional questions [be
asked of jurors], object to any juror’s continued service, or
request a mistrial on the ground of juror misconduct.” (People
v. Foster (2010) 50 Cal.4th 1301, 1341; see People v. Holloway (2004)33 Cal.4th 96, 124
.) Defense counsel declined the trial
court’s invitations to question Juror Y.P. and to bring a motion
to remove Juror Y.P. from the jury. When the court informed
the parties that it did not “see any reason to do anything” about
Juror Y.P.’s conduct, defense counsel agreed. By failing to seek
Juror Y.P.’s excusal or otherwise object to the court’s course of
action, Johnsen forfeited his claim that the court should have
removed Juror Y.P. As discussed below, this claim also fails on
the merits.
As to the merits, we first address whether the trial court
conducted an adequate investigation into Juror Y.P.’s alleged
misconduct. When a court becomes aware of possible juror
misconduct, it must “ ‘ “ ‘make whatever inquiry is reasonably
necessary’ to determine whether the juror should be
discharged.” ’ ” (People v. Martinez (2010) 47 Cal.4th 911, 941.) The nature of the court’s inquiry may consist of a full hearing or informal questioning of the juror in the presence of counsel. (People v. Fuiava (2012)53 Cal.4th 622, 712
.) “The specific procedures to follow in investigating an allegation of juror misconduct are generally a matter for the trial court’s discretion.” (People v. Seaton (2001)26 Cal.4th 598, 676
.)
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According to Johnsen, the trial court’s inquiry was
inadequate because the court did not ask “questions designed to
probe the effect of the priest’s information on Juror Y.P.’s ability
to decide [Johnsen’s] fate free from outside influence” and did
not question Juror Y.P. in person. As noted, in the presence of
Johnsen’s counsel and the prosecutor, the court asked Juror Y.P.
about her conversation with her priest. After hearing Juror
Y.P.’s account, the court accepted her assertion that the
Church’s views had no effect on her assessment of Johnsen’s
case. The court then took the precaution of inviting either party
to move to remove Juror Y.P. After both parties declined to do
so, the court did not remove her on its own motion. Implicit in
the court’s decision was a finding that Juror Y.P. had been
forthright about her conversation and her statement that it
would not affect her views of the case. On this record, we have
no basis to second-guess the trial court’s credibility
determination.
Nor did the court abuse its discretion by questioning Juror
Y.P. telephonically. The court opted for a telephonic inquiry to
expeditiously determine whether Juror Y.P. had discussed the
case before or after she had returned her verdict at the guilt
phase. As the prosecutor observed, the parties would have
responded differently if Juror Y.P. had “talked to the priest
during deliberations. Then we have a whole different ball game.
Then the question becomes whether [Johnsen] wants to move
for a mistrial or whether mistrial is an appropriate remedy or
whether we can substitute an alternate, tell them to go back in
and deliberate the guilt . . . .” The court agreed that it could not
leave this inquiry until the jurors returned from their two-week
break. Although an in-person examination may have been
preferable, the court did not abuse its discretion by choosing to
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conduct a telephonic inquiry to quickly determine the extent of
Juror Y.P.’s out-of-court contact.
As for Johnsen’s claim that the trial court erred by failing
to remove Juror Y.P. on its own motion, we ask “whether there
is any overt event or circumstance . . . which suggests a
likelihood that one or more members of the jury were influenced
by improper bias.” (In re Hamilton (1999) 20 Cal.4th 273, 294, italics omitted.) A finding of “juror misconduct ‘raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.’ ” (In re Hitchings (1993)6 Cal.4th 97, 118
.) The Attorney General contends that even assuming Juror Y.P. committed misconduct, “there is not a substantial likelihood that Juror Y.P. was biased on the issue of punishment.” “[Juror] bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.” (In re Carpenter (1995)9 Cal.4th 634, 653
; see People v. Nesler (1997)16 Cal.4th 561, 579
[“If we find a
substantial likelihood that a juror was actually biased, we must
set aside the verdict, no matter how convinced we might be that
an unbiased jury would have reached the same verdict, because
a biased adjudicator is one of the few structural trial defects that
compel reversal without application of a harmless error
standard.”].) Our review “accept[s] the trial court’s credibility
determinations and findings on questions of historical fact if
supported by substantial evidence,” and we independently
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examine the mixed question of “[w]hether prejudice arose from
[the] juror misconduct.” (Nesler, at p. 582.)
We agree with the Attorney General that, even assuming
without deciding that there was misconduct, any attendant
presumption of prejudice has been rebutted. As noted, Juror
Y.P. asked her priest whether it would be a “sin” for her to vote
for the death penalty. Her priest said the Church “believes in
the death penalty,” so it would not be sinful to vote for the death
penalty. But the priest did not indicate it was desirable to vote
for the death penalty in any given case, nor would a reasonable
listener understand the priest’s response to generally favor
imposing capital punishment. Contrary to what Johnsen
claims, Juror Y.P.’s question and her priest’s reply did not
“relieve” her of the personal burden of sentencing him to death.
There is no evidence that the priest opined further on the death
penalty or that any other discussion transpired. We cannot say
that Juror Y.P.’s out-of-court contact with her priest was
inherently and substantially likely to result in bias. (See People
v. Danks (2004) 32 Cal.4th 269, 310–311 [“[W]e are unwilling to
ascribe to any perceived stereotype that jurors who receive
advice from Christian spiritual leaders, or are exposed to
Biblical passages, per se suffer a diminished sense of
responsibility for their penalty verdict, and are automatically
rendered incapable of fairly evaluating the evidence and law
before them.”].)
Nor can we conclude on the record before us that it is
substantially likely that Juror Y.P. was actually biased against
Johnsen. Although we recognize that a juror’s insistence that
she is not biased against a defendant does not end the court’s
inquiry (see Crawford v. United States (1909) 212 U.S. 183, 196),
the record shows that Juror Y.P. repeatedly clarified to her
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priest and later to the court that the Church’s views would have
no effect on her assessment of Johnsen’s case. Immediately
after her conversation with her priest, Juror Y.P. informed the
bailiff. The court credited Juror Y.P.’s assurances that “[e]ven
if [my priest] were to tell me yes, it is a sin, it doesn’t mean I
wouldn’t [vote for the death penalty] or vice versa. I just wanted
to know.” Juror Y.P. reiterated that the Church’s position on
the death penalty was “not going to change the way [she] feel[s]”
about Johnsen’s case. Nothing in her out-of-court conversation
or her statements to the court suggested that she had prejudged
the case before any penalty phase testimony had been
introduced or that she was predisposed to one result over the
other. Nor does the record indicate that Juror Y.P.’s ultimate
vote would be motivated by her religion. In fact, her colloquy
with the court conveyed the opposite.
This case is distinguishable from Hill, where we
emphasized that “an appeal to religious authority in support of
the death penalty is improper because it tends to diminish the
jury’s personal sense of responsibility for the verdict.” (Hill,
supra, 17 Cal.4th at pp. 836–837.) In reversing the defendant’s
conviction and death judgment, we made clear “that to ask the
jury to consider biblical teachings when deliberating is patent
misconduct.” (Id. at p. 836, fn. 6.) Here, the record provides no
basis to second-guess the trial court’s finding that Juror Y.P.’s
discussion with her priest would not influence her views on the
case. Nor is there any indication that Juror Y.P. consulted or
mentioned her religious views or the Church’s position on the
death penalty during jury deliberations.
In sum, the record does not show a reasonable likelihood
that Juror Y.P. was biased against Johnsen.
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B. Victim Impact Evidence
1. Evidence of Leo’s Rehabilitation
Johnsen argues that penalty phase evidence presented on
Leo’s physical recovery exceeds the bounds of permissible victim
impact evidence (Payne v. Tennessee (1991) 501 U.S. 808) and violates his rights under the Eighth and Fourteenth Amendments as well as state law. The crux of his claim is that “the rationale for victim impact evidence set forth in Payne simply does not justify permitting victim impact testimony for any crimes other than the capital crime” and that during the penalty phase “a defendant’s moral culpability must be assessed on the basis of that [capital] crime alone.” Johnsen asks us to narrowly construe “victim,” to mean “capital victim” to the exclusion of impact testimony on Leo, a surviving victim of the murder-robbery. Johnsen acknowledges we have rejected similar arguments before. (See People v. Mitcham (1992)1 Cal.4th 1027
, 1062–1063; People v. Karis (1988)46 Cal.3d 612, 649
.) Nevertheless, he asks us to reconsider these prior
holdings.
We decline to do so. “Although victim impact is not
expressly enumerated as a statutory aggravating factor, . . . such
evidence [i]s generally admissible as a circumstance of the crime
under section 190.3, factor (a).” (People v. Brown (2004) 33
Cal.4th 382, 396 (Brown).) Johnsen’s argument that victim
impact evidence is exclusively limited only to impact evidence
on the deceased victim is unavailing; the language of factor (a)
is not so narrow. That provision authorizes consideration, at the
penalty phase, of “[t]he circumstances of the crime of which the
defendant was convicted in the present proceeding and . . . any
special circumstances. . . .” (§ 190.3, factor (a), italics added.)
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Leo’s near-death injuries occurred alongside Juanita’s
murder while Johnsen was robbing them, a special circumstance
found by the jury. According to Dr. Brown, the injuries Leo
sustained during Johnsen’s assault rendered him incapable of
oral or written communication. Leo’s adult children testified
regarding their increased caregiving duties of Leo, directly
attributable to Leo’s injuries and the murder of their mother,
Juanita, who would have otherwise cared for Leo.
Their victim impact testimony was also admissible during
the penalty phase because it concerned the effect of Johnsen’s
violent crimes against Juanita on her family, including Leo.
(See People v. Davis (2009) 46 Cal.4th 539, 618; People v. Taylor (2001)26 Cal.4th 1155
, 1171–1172.) Finally, the testimony regarding Leo’s rehabilitation was not “so voluminous or inflammatory as to divert the jury’s attention from its proper role or invite an irrational response” in violation of due process. (Taylor, at p. 1172; see People v. Roldan (2005)35 Cal.4th 646, 731
.)
2. Alleged Instructional Error
Johnsen argues that the trial court erred in denying two
defense-requested jury instructions pertaining to the victim
impact evidence. Johnsen’s proposed penalty phase instruction
No. 35 read:
“Evidence has been introduced for the purpose of
showing the specific harm caused by the defendant’s
crime. Such evidence, if believed, was not received
and may not be considered by you to divert your
attention from your proper role of deciding whether
defendant should live or die. You must face this
obligation soberly and rationally and you may not
impose the ultimate sanction as a result of an
irrational, purely subjective response to emotional
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evidence and argument. On the other hand,
evidence and argument on emotional though
relevant subjects may provide legitimate reasons to
sway the jury to show mercy.”
The court declined to instruct the jury to this effect,
characterizing the proposed instruction as “unnecessary.” In
People v. Russell (2010) 50 Cal.4th 1228, we found no error in
the trial court’s refusal to give an identical jury instruction to
the one at issue here because it was confusing and because other
instructions already advised the jury to determine the facts and
apply the law as directed. (Id. at p. 1265 & fn. 6.) As in Russell,
we conclude the trial court here did not err in refusing to
instruct the jury with proposed instruction No. 35.
The court also refused defendant’s penalty phase
instruction No. 61, which the court opined was an incorrect
statement of law. That instruction would have provided: “The
facts of this case may arouse in you a natural sympathy for the
victim or the victim’s family. Such sympathy, while natural, is
not relevant to the penalty decision in this case. [¶] You are to
base your decision on the evidence, the arguments of counsel,
and the law stated in these instructions. You are directed not
to consider any feelings of sympathy you may feel for the parties
injured or aggrieved in this case.” During the penalty phase,
however, “the jury may exercise sympathy for the defendant’s
murder victims and for their bereaved family members” in
aggravation, as a circumstance of the crime. (People v. Pollock
(2004) 32 Cal.4th 1153, 1195; see § 190.3, factor (a).) The trial
court was correct to deny this instruction, which erroneously
stated that the jury must “not . . . consider any feelings of
sympathy . . . for the parties injured or aggrieved.”
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C. Admission of Photographs of Deceased Victim
Theresa Holloway
Over an objection by Johnsen’s counsel, the trial court
admitted into evidence three postmortem photographs of
different parts of Holloway’s body. The three photos showed
close-up shots of injuries to Holloway’s face, neck, and scalp.
Johnsen renews his argument that these photographs should
have been excluded from the penalty phase as irrelevant and
more prejudicial than probative. (Evid. Code, §§ 210, 352.)
Johnsen begins by disputing the relevance of the photos
pursuant to section 190.3, factor (b). Factor (b) authorizes
admission of evidence of Johnsen’s unadjudicated violent
criminal activity as a factor in aggravation during the penalty
phase. Johnsen’s primary argument is that photos of Holloway’s
bodily injuries are not relevant because Johnsen did not
personally injure Holloway; thus, her injuries could not be
indicative of Johnsen’s state of mind when he aided and abetted
her murder.
We have said that “[v]iolent ‘criminal activity’ presented
in aggravation may be shown in context, so that the jury has full
opportunity in deciding the appropriate penalty to determine its
seriousness.” (People v. Melton (1988) 44 Cal.3d 713, 757.) Here, the photos were not introduced to ascertain Johnsen’s state of mind with respect Holloway’s death but rather to convey to the jury the unusual context and circumstances of Johnsen’s prior violent criminal activity, which the prosecution had to prove beyond a reasonable doubt. (§ 190.3, factor (b); see People v. Robertson (1982)33 Cal.3d 21, 54
.) Johnsen did not injure
Holloway himself, but the other crime’s evidence and Johnsen’s
written confession strongly suggest that he directed Jurado to
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kill Holloway to prevent her from disclosing their plans to kill
Mynatt.
Contrary to Johnsen’s claim that the photographs were
cumulative of other testimony, they did have probative value
during the penalty phase. They rendered Johnsen’s written
confession more credible and enabled the pathologist to
effectively communicate the peculiar nature of Holloway’s
injuries to the jury. (See People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 423 [“ ‘[a]utopsy photographs are
routinely admitted to establish the nature and placement of the
victim’s wounds’ ”].) In other words, the photos had a “tendency
in reason to prove or disprove a[] disputed fact that is of
consequence” (Evid. Code, § 210), and the court correctly
concluded that they are relevant under Penal Code section
190.3, factor (b).
As to whether the photos were more prejudicial than
probative, we are mindful that Evidence Code section 352
confers on the trial court “broad discretion” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124) to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury” (Evid. Code, § 352). Our review is limited to whether the trial court’s determination under section 352 constituted an “abuse of discretion.” (Rodrigues, at p. 1125.) Our intervention is only warranted when “the probative value of the photographs clearly is outweighed by their prejudicial effect.” (People v. Crittenden (1994)9 Cal.4th 83, 134
.)
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The trial court noted that the prosecution selected only
three autopsy photos — each depicting a different injury point
on Holloway’s neck, face, and head — out of nearly 100 photos.
While recognizing that in general photos of a deceased victim
may provoke a visceral reaction, we have reviewed the
challenged photos and conclude that the photos, while
unpleasant, were not likely to evoke a visceral reaction
disproportionate to the murder itself. Because the photos’
probative value was not clearly outweighed by their prejudicial
effect (Evid. Code, § 352), we conclude that the court did not
abuse its discretion in admitting the photographs.
D. Alleged Prosecutorial Misconduct
Johnsen contends the prosecutor committed multiple acts
of prejudicial misconduct in his opening and closing argument
during the penalty phase, requiring reversal. But Johnsen did
not preserve his objection to much of the alleged misconduct,
and in any event, his claims either lack merit or do not rise to
the level of prejudicial misconduct.
“The same standard applicable to prosecutorial
misconduct at the guilt phase is applicable at the penalty
phase.” (People v. Valdez (2004) 32 Cal.4th 73, 132(Valdez); see People v. Guerra (2006)37 Cal.4th 1067, 1153
.) “ ‘ “Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ ” ’ ” (People v. Sattiewhite (2014)59 Cal.4th 446, 480
(Sattiewhite).) Johnsen raises no claims pursuant to the
California Constitution, so we consider his federal claims alone.
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1. Comments on Society and the Integrity of the Law
(a) Background
During his opening argument, the district attorney told
the jury, “[Y]ou are representatives of 30 million Californians,
the great majority of whom are law abiding citizens. You owe
them and yourselves a conscientious, courageous and thorough
review of the evidence in this phase of the trial. You owe
yourselves and them the imposition of a just and appropriate
punishment. [¶] I urge you to remain faithful to your oath and
to do the right thing. Fellow citizens expect that you will
discharge your duty and they are entitled to the discharge of
that duty.” The prosecutor also contextualized societal values,
saying, “By subjecting certain murderers to death, society
acknowledges the level of their evil and their depravity and the
preciousness of the innocent lives which such murderers
violently and prematurely ended.” He observed that “[a] society
which lacks the will to protect its citizens from the likes of the
Brian Johnsens of the world, is as immoral as it is weak and
criminally negligent. Fortunately we live in a society which has
the courage and the will to confront evil and eradicate it.”
Johnsen’s counsel did not object to any of the prosecutor’s
remarks. Instead, defense counsel responded in his opening
argument: “The prosecutor has asked you to return a death
sentence and the message is if you vote for the death penalty,
you’re tough on crime; and if you vote for life without possibility
of parole, well, then you’re not tough on crime because you’ve
got all these 30 million people behind you. [¶] Well, that’s not
true.” Defense counsel said: “There’s 12 people and they’re all
individuals. Each one of you are the ones who are responsible
for making this decision. You don’t have to worry about the 30
million people out there.”
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In rebuttal, the prosecutor told the jury: “You are here to
apply the law of the State of California in a capital murder case
and that law requires that you weigh the aggravating and
mitigating circumstances in deciding whether to impose the
penalty of death.” “You will be voting for death to, one, maintain
the integrity of the law, to insure that it works the way it has
been designed to work. You will be voting for death to impose a
just and an appropriate penalty.”
Johnsen’s counsel responded: “I think that Mr. Fontan
[the prosecutor] is wrong when he says we have to kill Mr.
Johnsen to maintain the integrity of the law. What we have to
do to maintain the integrity of the law is do the right thing.”
“[K]illing Mr. Johnsen would certainly not make the system
work better, make anybody have more respect for the system,”
defense counsel said. “The system will be in good shape, thank
you, tomorrow and next week and next month and next year
whether you kill Mr. Johnsen or whether you sentence him to
life without possibility of parole.”
Although Johnsen’s counsel never objected to the
prosecutor’s remarks, he requested defendant’s penalty phase
instruction No. 60: “After weighing all the aggravating and
mitigating factors, it is up to you individually to decide which of
the punishments, life without parole or death, should be
imposed in this case. You must always keep in mind that each
of you bears the ultimate moral responsibility to determine the
appropriate penalty under all the circumstances of this case.”
The district attorney opposed this request.
The court asked Johnsen’s counsel if he would be satisfied
if, instead of giving the requested instruction, the court modified
CALJIC No. 8.88 to include the word “individually” so that it
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would read: “To return a judgment of death, each of you
individually must be persuaded that the aggravating
circumstances are so substantial in comparison with the
mitigating circumstances that it warrants death instead of life
without parole.” (Italics added.) Johnsen’s counsel replied:
“Well, all right. I think that’s appropriate.” The court
instructed the jury accordingly.
(b) Discussion
On appeal, Johnsen contends that the prosecutor’s
reference to “[a] society which lacks the will to protect its
citizens from the likes of the Brian Johnsens of the world, is as
immoral as it is weak and criminally negligent” shamed jurors
into favoring the death penalty to uphold social expectations
rather than engaging in an “ ‘individualized inquiry’ ” of
Johnsen as compelled by the Eighth Amendment. (Romano v.
Oklahoma (1994) 512 U.S. 1, 7.)
To the extent Johnsen’s claim of prosecutorial misconduct
alleges a due process violation, he has forfeited it by failing to
“ ‘ “make a timely objection and ask the trial court to admonish
the jury,” ’ ” as there is no indication a timely objection would
have been inadequate. (Sattiewhite, supra, 59 Cal.4th at
p. 480.) However, his “failure to object at trial does not preclude him from raising . . . on appeal” a claim under Caldwell v. Mississippi (1985)472 U.S. 320
(Caldwell). (Sattiewhite, at
p. 481; see Caldwell, at pp. 328–329 [a verdict “made by a
sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant’s death rests
elsewhere” violates the 8th Amend.].)
The prosecutor’s remarks here did not run afoul of the
Eighth Amendment. “It [i]s not improper for the prosecutor to
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argue that the jury would be acting as the representative of the
community or for society as a whole.” (People v. DeHoyos (2013)
57 Cal.4th 79, 149.) In Sattiewhite, we declined to find misconduct because the prosecutor “accurately described the jurors as the conscience of the community.” (Sattiewhite, supra,59 Cal.4th at p. 481
; seeCaldwell, supra,
472 U.S. at p. 333
[capital jury may be asked to decide penalty “on behalf of the community”].) Here, as in Sattiewhite, the prosecutor “did not urge the jury to abrogate their personal responsibility to determine the appropriate punishment” or “suggest to the jury that ‘the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.’ ” (Sattiewhite, at p. 481.) The prosecutor merely told jurors that they “owe [them]selves and [others] the imposition of a just and appropriate punishment” and that a death verdict would be consistent with societal values. (See People v. Zambrano (2007)41 Cal.4th 1082, 1179
[“the community . . . has the right to express its values by imposing the severest punishment for the most aggravated crimes”], disapproved on other grounds in People v. Doolin (2009)45 Cal.4th 390, 421, fn. 22
.) And as in
Sattiewhite, the court here instructed the jury to determine
“individually” whether death is the appropriate penalty.
As for the district attorney’s statement urging the jurors
to “confront evil and eradicate it,” the word “it” could have been
understood by a reasonable juror to label Johnsen an “evil” that
must be “eradicate[d].” “A prosecutor is allowed to make
vigorous arguments and may even use such epithets as are
warranted by the evidence, as long as these arguments are not
inflammatory and principally aimed at arousing the passion or
prejudice of the jury.” (People v. Pensinger (1991) 52 Cal.3d
1210, 1251.) The prosecutor’s suggestion that Johnsen is “evil,”
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followed by a call to “eradicate” such evil, borders on
“inflammatory” rhetoric. (Ibid.; see People v. Fosselman (1983)
33 Cal.3d 572, 580 [a prosecutor may “ ‘use appropriate epithets
warranted by the evidence,’ ” but “the prosecutor’s
inflammatory characterization of defendant” could not be
condoned].) But the comment was limited and fleeting such that
any error was nonprejudicial.
2. Comments on Johnsen’s Lack of Sympathy and
Mercy
During his opening argument, the district attorney asked
the jury several rhetorical questions, including: (1) “Why should
Brian Johnsen’s life be spared when he failed to show any
compassion or sympathy for his victims at the time he
committed his murders?”; (2) “Why should a cold-blooded,
cavalier, thrill-killer like Mr. Johnsen be permitted to live after
killing twice and attempting to kill again?”; and (3) “Why should
[Johnsen] live while the remains of his victims decay in the
earth and their survivors are condemned to grieve the manner
and tragedy of the death of their loved ones each and every day
that they live?” Johnsen did not object to these comments, nor
has he shown that a sustained objection and an admonition from
the court would have been inadequate. (Seumanu, supra, 61
Cal.4th at p. 1328.) Thus, he has forfeited this claim on appeal.
We also reject it on the merits. Section 190.3, factor (k)
permits penalty phase consideration of any “circumstance which
extenuates the gravity of the crime even though it is not a legal
excuse for the crime.” “[R]emorse, which by definition can only
be experienced after a crime’s commission, is something
commonly thought to lessen or excuse defendant’s culpability.”
(Brown v. Payton (2005) 544 U.S. 133, 142–143.)
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Contrary to Johnsen’s arguments, the prosecutor did not
attempt to turn Johnsen’s lack of remorse or mercy for his
victims into an aggravating factor. Rather, the rhetorical
questions are most reasonably read to advise the jury that
Johnsen’s lack of compassion or sympathy weighs against
mitigation. Although a prosecutor may not “argue that the
absence of such mitigating factors [such as the lack of remorse]
is itself an aggravating factor justifying the death penalty”
(People v. Dyer (1988) 45 Cal.3d 26, 82, italics omitted), the prosecutor may argue “a particular mitigating circumstance, such as [Johnsen’s] remorse for his victims, is lacking from the case” (ibid.) and may also “urge[ the jury] not to be swayed by arguments for sympathy” (People v. Sanders (1995)11 Cal.4th 475, 554
). Here, the district attorney pointed to Johnsen’s lack
of remorse or mercy for his victims, and urged the jury not to
offer any sympathy. Such arguments opposing mitigation do not
offend due process.
3. Comments on Conspiracy Evidence
Johnsen alleges the prosecutor’s reference to Johnsen’s
participation in a conspiracy to kill Mynatt mischaracterized the
section 190.3, factor (a) motive evidence behind Holloway’s
killing as a factor (b) violent criminal activity.
In his opening remarks, the district attorney asked the
jury to “[t]hink about the motive. [Johnsen] decided to
participate in [Holloway’s] murder because she was going to go
to the object of a plot he was involved with, a plot to kill another
person. So we have a killer here . . . who not only premeditates
and deliberates his killings, we have a killer that kills so he can
continue to kill. That was his motive. He had his girlfriend
killed so he could kill Doug Mynatt.” (Italics added.) As noted,
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the district attorney also introduced section 190.3, factor (a)
motive evidence that Jurado, Shigemura, Humiston, and
Johnsen killed Holloway because they were concerned that
Holloway might tell Mynatt about Johnsen’s plans to kill him.
Johnsen claims that his confession to Holloway’s murder
disavowed any intent to kill Mynatt, instead evincing a fear that
Mynatt would kill “all of [them]” if Holloway “ratted” them out.
His confession stated, “I had no choice. It was her or all of us.”
Thus, Johnsen claims he never intended to kill Mynatt and
observes Mynatt was never murdered. Because there was
insufficient corroborating evidence to establish the conspiracy
under factor (b), Johnsen argues that the prosecutor’s remarks
transformed his unproven conspiracy crime into a standalone
aggravating factor in violation of due process.
We conclude Johnsen’s claim lacks merit. Both parties are
entitled to “ ‘ “fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.” ‘ ”
(People v. Ward (2005) 36 Cal.4th 186, 215.) “ ‘ “Whether the inferences the prosecutor draws are reasonable is for the jury to decide.” ’ ” (Valdez, supra,32 Cal.4th at p. 134
.) The
prosecutor’s theory that Johnsen’s motive for killing Holloway
to conceal a plot to kill Mynatt was a “reasonable inference”
based on the evidence presented. Importantly, the court
instructed the jury that it could consider “[e]vidence regarding
a plot to kill a Doug Mynatt . . . only to establish the motive for
the murder of Terry Holloway.” Johnsen does not demonstrate
how the court’s admonishment was insufficient to prevent the
jury from misinterpreting or misapplying the motive evidence
pertaining to Holloway’s killing. Accordingly, Johnsen’s
misconduct claim fails.
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E. Cumulative Error
Johnsen asserts that the combined errors during the guilt
and penalty phase warrant reversal of his conviction, his death
sentence, or both. During the guilt phase, we found error with
respect to the prosecutor’s misstatement of the reasonable doubt
standard. (Ante, at pp. 59–64.) At the penalty phase, we have
acknowledged the prosecutor’s potentially inflammatory
comment about Johnsen during penalty phase arguments.
(Ante, at pp. 81–82.) We conclude that their cumulative effect
does not rise to the level of prejudice necessary to reverse
Johnsen’s conviction or his sentence.
F. Challenges to the Death Penalty
Johnsen raises myriad challenges to the constitutionality
of California’s death penalty regime. While he acknowledges we
have consistently found similar claims to be meritless, he
nevertheless asks us to reconsider our precedent. We decline to
do so.
Johnsen contends his conviction and sentence are invalid
because state judges are subject to direct elections, retention
elections, or both. Pointing to the 1986 election where California
voters declined to retain three high court judges ostensibly due
to their views disfavoring the death penalty, Johnsen argues
political disincentives to “make defense-favorable rulings in
capital cases” result in a “tilted system.” Although Johnsen is
certainly entitled to “impartial” judges, he “is not . . . entitled to
have his appeal decided by justices who have never formed or
expressed opinions or thoughts on general topics such as the
propriety of the death penalty.” (People v. Kipp (2001) 26
Cal.4th 1100, 1140(Kipp); see People v. Prince (2007)40 Cal.4th 1179, 1299
; People v. Avila (2006)38 Cal.4th 491, 615
[“This
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PEOPLE v. JOHNSEN
Opinion of the Court by Liu, J.
court’s review process is not impermissibly influenced by
political considerations.”].) Even if judicial elections were a
conflict of interest, they “would apply equally to all California
judges and, under the common law rule of necessity, the justices
of this court [and our lower courts] would not be disqualified.”
(Kipp, supra, at p. 1141.)
Section 190.3, factor (a), which allows the jury to consider
the individualized circumstances of the capital offense, does not
result in arbitrary or capricious imposition of the death penalty.
(Brown, supra, 33 Cal.4th at p. 401.) On the contrary, section
190.3, factor (a) guarantees “each case is judged on its facts, each
defendant on the particulars of his offense.” (Brown, at p. 401.)
We have previously held that the jury is not required to
unanimously agree on: (1) which circumstances of the crime are
aggravating; (2) whether Johnsen engaged in prior violent
criminal activity under section 190.3, factor(b); (3) whether
Johnsen committed a prior felony under section 190.3, factor (c);
and (4) which sentencing factors were aggravating. (People v.
Bunyard (2009) 45 Cal.4th 836, 860–861; see also Brown, supra,33 Cal.4th at p. 402
; People v. O’Malley (2016)62 Cal.4th 944, 1014
(O’Malley).)
Johnsen asserts it is unconstitutional to allow the same
jury that convicted him to decide whether he also committed
other criminal activity. We have concluded otherwise. (See
People v. Hawthorne (1992) 4 Cal.4th 43, 76–77.) “[D]ue process
does not preclude the consideration of this type of evidence by a
penalty jury [that] has found the defendant guilty of murder,”
and “the strong legislative preference for a unitary jury
outweighs any ‘supposed disadvantage’ to defendant in the
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PEOPLE v. JOHNSEN
Opinion of the Court by Liu, J.
single-jury process.” (People v. Balderas (1985) 41 Cal.3d 144,
204.)
Johnsen also complains that section 190.3 factor (i), which
requires the sentence to consider the defendant’s age at the time
of the offense, is unconstitutionally vague. We have held that
“[t]he use of defendant’s age as a sentencing factor [citation] is
not impermissibly vague under the Eighth Amendment.”
(O’Malley, supra, 62 Cal.4th at p. 1013.)
Johnsen raises several objections to CALJIC No. 8.85, all
of which we have denied previously, and we again deny them
here. “The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating factors . . . .” (People v. Mitchell
(2019) 7 Cal.5th 561, 589(Mitchell).) Nor must the court advise the jury which factors to consider aggravating or mitigating, as “[t]he aggravating or mitigating nature of the factors is self- evident within the context of each case.” (People v. Hillhouse (2002)27 Cal.4th 469, 509
.) “The use of certain adjectives such as ‘extreme’ and ‘substantial’ in the list of mitigating factors in section 190.3 does not render the statute unconstitutional.” (People v. Thompson (2010)49 Cal.4th 79, 144
.) And the court need not specify a burden of proof for aggravating or mitigating sentencing factors. (People v. Jackson (2014)58 Cal.4th 724, 773
.)
We have previously held that “neither the cruel and
unusual punishment clause of the Eighth Amendment, nor the
due process clause of the Fourteenth Amendment, requires a
jury to find beyond a reasonable doubt that aggravating
circumstances exist or that aggravating circumstances outweigh
mitigating circumstances or that death is the appropriate
penalty.” (People v. Blair (2005) 36 Cal.4th 686, 753.) Johnsen
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PEOPLE v. JOHNSEN
Opinion of the Court by Liu, J.
asserts that the failure to require written jury findings is
unconstitutional, but “[j]urors need not make written findings
in determining penalty.” (People v. Valdez (2012) 55 Cal.4th 82,
180.)
Johnsen challenges CALJIC No. 8.88, but “[w]e repeatedly
have rejected identical claims . . . .” (People v. Catlin (2001) 26
Cal.4th 81, 174.) “The court’s use of CALJIC No. 8.88, which instructs that jurors must be ‘persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances’ to warrant a death judgment, is not unconstitutionally vague, appropriately informs jurors, and does not violate the Eighth and Fourteenth Amendments to the federal Constitution.” (Mitchell, supra,7 Cal.5th at p. 589
.) “CALJIC No. 8.88 does not misstate the law by asking jurors whether the circumstances ‘warrant[]’ death . . . .” (People v. Manibusan (2013)58 Cal.4th 40, 100
.) “The trial court need not instruct jurors that . . . they should impose life imprisonment without the possibility of parole if they find that the mitigating circumstances outweigh the aggravating circumstances.” (People v. Valdez, supra, 55 Cal.4th at pp. 179–180.) “CALJIC No. 8.88 is not constitutionally defective for failing to inform the jury that is has the discretion to impose a sentence of life without the possibility of parole even in the absence of mitigating circumstances.” (People v. Linton (2013)56 Cal.4th 1146, 1211
.) Likewise, we decline to revisit our precedent
holding that “[t]he jury is not required to unanimously find that
certain aggravating factors warrant the death penalty under the
federal Constitution, and the equal protection clause does not
compel a different result.” (Mitchell, at p. 588.)
Contrary to Johnsen’s contention that California law fails
to meaningfully narrow the pool of all those convicted of murder
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PEOPLE v. JOHNSEN
Opinion of the Court by Liu, J.
for death penalty eligibility, section 190.2 “adequately performs
the constitutionally mandated narrowing function.” (People v.
D’Arcy (2010) 48 Cal.4th 257, 308.) “Our state death penalty statute is not unconstitutional for failing to require intercase proportionality review or disparate sentence review.” (People v. Eubanks (2011)53 Cal.4th 110, 154
.) “California’s use of the death penalty does not violate international law, the federal Constitution, or the Eighth Amendment’s prohibition against cruel and unusual punishment in light of ‘evolving standards of decency.’ ” (Mitchell, supra,7 Cal.5th at p. 590
.)
CONCLUSION
We affirm the judgment.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
IKOLA, J.*
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
89
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Johnsen
_________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S040704
Date Filed: February 1, 2021
__________________________________________________________________________________
Court: Superior
County: Stanislaus
Judge: David G. Vander Wall
__________________________________________________________________________________
Counsel:
Neoma Kenwood, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Ryan B. McCarroll and A. Kay Lauterbach,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Neoma Kenwood
1569 Solano Avenue
Berkeley, CA 94707
(510) 528-4775
A. Kay Lauterbach
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7671
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