People v. Johnson

• Decision Date: 23 February 1989
• Docket Number: No. S004425,S004425
• Citation: 767 P.2d 1047,47 Cal.3d 1194,255 Cal.Rptr. 569
• Court: California Supreme Court
• Parties: , 767 P.2d 1047 The PEOPLE, Plaintiff and Respondent, v. James Willis JOHNSON, Defendant and Appellant. Crim. 22503.

Page 569

255 Cal.Rptr. 569

47 Cal.3d 1194, 767 P.2d 1047

The PEOPLE, Plaintiff and Respondent, v. James Willis JOHNSON, Defendant and Appellant.

Crim. 22503.

No. S004425.

Supreme Court of California,

In Bank.

Feb. 23, 1989.

Rehearing Denied May 4, 1989.

James Kyle Gee, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Herbert F. Wilkinson, Dane R. Gillette and Mark S. Howell, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

Defendant was convicted of the first degree murder (Pen.Code, § 187) ¹ and robbery ( § 211) of Edward Dukar with findings of personal use of a firearm ( §§ 12022.5, 1203.06). A special circumstance allegation under the 1978 death penalty law was found true: that the murder was committed while the defendant was engaged in the commission or attempted commission of robbery. ( § 190.2, subd. (a)(17)(i).) The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239.)

I. GUILT PHASE FACTS

A. Prosecution Case.

Defendant was convicted of killing Edward Dukar on October 31, 1980, in Dukar's jewelry store in a small shopping center in Milpitas. The principal prosecution witness was Miller Peter Hodges, an accomplice, who testified as part of a plea bargain.

Hodges testified that he, defendant, and Thomas Fields drove to Dukar's jewelry store to rob him. Both defendant and Fields were armed. Fields and Hodges waited in the parked car while defendant went into Dukar's store to check out the situation. He returned a few minutes later saying there were some customers in the store and another sales clerk. After waiting a few minutes for the customers to leave, defendant returned to the store followed by Hodges and Fields. Defendant began talking to Dukar while Fields and Hodges talked to the clerk, Gary Ingalls. Ingalls was about to ask Dukar for the key to the display case when defendant pulled a gun and shot Dukar. Upon hearing the shot, Hodges and Fields ran from the store to the car.

Defendant fired three more shots at Dukar, broke the glass in the jewelry case, took two trays of rings, and fled. Defendant left behind a jewelry catalog that Dukar had given him earlier.

Hodges testified that defendant was carrying jewelry trays when he got to the car. An object about the size of a wallet fell from defendant's inside pocket. Defendant got in the car, and the three drove off.

When police arrived at the store, they found a wallet outside with the names of defendant's sisters imprinted on it. Inside the store they found the catalog that defendant had handled. On it were two of defendant's fingerprints. The coroner's report stated that Dukar had died from gunshot wounds to the head and chest.

Defendant was identified by store customers and nearby tenants. The most positive identification was by Marine Recruiting Sergeant W.M. Goodwin who had an office in the shopping center. Goodwin had stopped to say hello to Dukar while Dukar was talking to defendant shortly before the shooting. Goodwin identified defendant at a corporeal lineup and at trial. Gary Ingalls, the store clerk, said he recognized defendant at a lineup but was nervous and made no identification of him until the preliminary examination. Dolly Johnson, who had been in the store the first time defendant entered, had marked her card with a "possible" identification of defendant at the lineup. She was 99 percent sure at that time. She had asked the lineup participants to smile, and defendant had forced a smile. Later, when she saw defendant smiling naturally in court, she was 100 percent sure that defendant was the man who had smiled at her in Dukar's store. Less certain identifications of defendant were also made by Brad Kisela and Charles Ray, who had been in the store when Dolly Johnson was there.

B. Defense Case.

Defendant presented alibi testimony by his mother, stepfather, stepbrothers, his girlfriend, two women who were living at his mother's house, and employees of Hillhaven Convalescent Home in East Palo Alto. Their testimony was to the effect that defendant left home with his stepbrothers and girlfriend about 12:10 or 12:30 p.m. on the day Dukar was killed to attend a Halloween party at Hillhaven where defendant's stepbrother Barry worked. They arrived 10 to 15 minutes after leaving defendant's house. The witnesses' testimony varied, however, as to the time. The group could have arrived anywhere from 12:30 to 1:35. The varied defense testimony indicated that defendant stayed for 45 minutes to an hour.

Police had been dispatched to the murder scene about 12:52 p.m. It takes about 29 minutes to drive from the murder scene to defendant's residence.

Defendant's family testified that he had lost his wallet in early 1980. They remembered his complaints about it and searching the house for it. Department of Motor Vehicles' records showed that defendant had obtained a duplicate license in February 1980.

Defendant presented expert testimony that there were no fingerprints on the catalog of sufficient quality for comparison purposes. Defendant's mother testified that a few days before the robbery Hodges had come to her house with some jewelry cases and catalogs. Defendant had handled the catalog and had advised his mother not to deal with Hodges.

II. JURY SELECTION ISSUES

A. Representative Cross-section.

Defendant contends that the granting of hardship exclusions because of the projected length of the trial tended to systematically exclude poor persons in a disproportionate manner. His contention fails. Claims of denial of a fair cross-sectional jury are analyzed by ascertaining whether a cognizable class has been excluded. (People v. Fields (1983) 35 Cal.3d 329, 345, 197 Cal.Rptr. 803, 673 P.2d 680.) Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class. (People v. Estrada (1979) 93 Cal.App.3d 76, 91, 155 Cal.Rptr. 731; see also People v. Fields, supra, 35 Cal.3d at pp. 348-349, 197 Cal.Rptr. 803, 673 P.2d 680; People v. Milan (1973) 9 Cal.3d 185, 195-196, 107 Cal.Rptr. 68, 507 P.2d 956.)

Defendant also contends that the process of death-qualifying a California jury results in the systematic underrepresentation of Blacks and women on capital juries and denied him his right to a representative jury at the guilt phase. A majority of this court rejected such an argument in People v. Fields, supra, 35 Cal.3d at pages 349-350, footnote 7, 197 Cal.Rptr. 803, 673 P.2d 680 (plur. opn.), at 374, 197 Cal.Rptr. 803, 673 P.2d 680 (Kaus, J., conc.).

Defendant further contends that the exclusion for cause of prospective jurors who would automatically vote against a death sentence deprived him of a representative jury. This claim has been rejected by both this court and the United States Supreme Court. (People v. Miranda (1987) 44 Cal.3d 57, 78-79, 241 Cal.Rptr. 594, 744 P.2d 1127; Lockhart v. McCree (1986) 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137.)

Defendant also assigns as error the trial court's denial of his motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748. In Wheeler, we held that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Id. at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.) The United States Supreme Court similarly held in Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 that the Equal Protection Clause forbids peremptory challenges of potential jurors solely on account of their race when the defendant is a member of that race. Such challenges may not be used "to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black." (Id. at p. 97, 106 S.Ct. at p. 1723.)

We recognized in Wheeler, and the United States Supreme Court recognized in Batson, that peremptory challenges have historically served as a valuable safety valve in jury selection. We said in Wheeler that such challenges are permissible so long as they are based on specific bias, which we defined as a bias relating to the particular case on trial or the parties or witnesses thereto: "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror's objectivity on no more than the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another' [citation [47 Cal.3d 1216] --upon entering the box the juror may have smiled at the defendant, for instance, or glared at him." (Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)

Batson does not use the term "specific bias." It permits challenges so long as they may be justified by "a neutral explanation related to the particular case to be tried." (Batson v. Kentucky, supra, 476 U.S. at p. 98, 106 S.Ct. at p. 1723.) The court emphasized, however, "that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause." (Id. at p. 97, 106 S.Ct. at p. 1723.)

Under Wheeler and Batson, if a party believes his opponent is...