Johnson, In re

• Decision Date: 29 June 1998
• Docket Number: No. S027758,S027758
• Citation: 957 P.2d 299,75 Cal.Rptr.2d 878,18 Cal.4th 447
• Court: California Supreme Court
• Parties: , 19 Cal.4th 300A, 957 P.2d 299, 98 Cal. Daily Op. Serv. 5120, 98 Daily Journal D.A.R. 7183 In re Willie Darnell JOHNSON, On Habeas Corpus

Page 878

75 Cal.Rptr.2d 878

18 Cal.4th 447, 19 Cal.4th 300A, 957 P.2d 299,

98 Cal. Daily Op. Serv. 5120,

98 Daily Journal D.A.R. 7183

In re Willie Darnell JOHNSON, On Habeas Corpus.

No. S027758.

Supreme Court of California

June 29, 1998.

As Modified on Denial of Rehearing Sept. 23, 1998.

As Modified Oct. 1, 1998.

John T. Philipsborn, Richard C. Neuhoff, Aundre M. Herron, Jean R. Sternberg and Lynne S. Coffin, under appointments by the Supreme Court, San Francisco, for Petitioner.

Daniel E. Lungren, Attorney General, George Willliamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias, Ann K. Jensen, Dane R. Gillette, Joan Killeen, Morris Beatus and Donna B. Chew, Deputy Attorneys General, for Respondent.

WERDEGAR, Justice.

A Contra Costa County jury convicted petitioner Willie Darnell Johnson of the murder of Mrs. Willie Womble (Pen.Code, § 187; all further statutory references are to this code unless otherwise specified), the attempted murder of Angela Womble (§§ 187, 664), robbery in an inhabited dwelling (former § 213.5, see now § 212.5), and first degree burglary (§§ 459, 460). The jury found true robbery- and burglary-felony-murder special-circumstance allegations. (§ 190.2, former subd. (a)(17)(i) & (vii), see now subd. (a)(17)(A) & (G).) The jury also found petitioner personally used a firearm in the commission of these offenses (§ 12022.5) and inflicted great bodily injury in the commission of the attempted murder, the robbery and the burglary (§ 12022.7). The same jury sentenced petitioner to death. This court affirmed the judgment in its entirety. (People v. Johnson (1992) 3 Cal.4th 1183, 14 Cal.Rptr.2d 702, 842 P.2d 1.)

In a petition for writ of habeas corpus, petitioner alleged numerous claims attacking the judgment as to guilt and penalty. This court issued an order to show cause limited to the question why petitioner should not be granted relief on the ground he is factually innocent of the murder of Willie Womble, in that his deceased brother, Timothy Johnson, committed the crime.

After the filing of respondent's return and petitioner's traverse, we determined that disputed facts necessitated an evidentiary hearing. (See People v. Romero (1994) 8 Cal.4th 728, 737-740, 35 Cal.Rptr.2d 270, 883 P.2d 388.) The Honorable Richard L. Patsey We conclude the referee's findings are supported by substantial evidence and therefore deny the petition for writ of habeas corpus. We further deny petitioner's motion to reopen the evidentiary hearing to permit the taking of additional evidence.

                [957 P.2d 301] Judge of the Contra Costa County Superior Court, was appointed referee with directions to take evidence and make findings of fact on the following question:  "Is petitioner innocent of the murder of Willie Womble, in that his deceased brother, Timothy Johnson, committed the crime?"   After hearing the evidence, the referee found petitioner had not met his burden of establishing his innocence and made additional findings related to the credibility of the witnesses who testified before him
                

FACTUAL AND PROCEDURAL BACKGROUND

The events leading to petitioner's conviction and sentence are set forth in People v. Johnson, supra, 3 Cal.4th 1183, 14 Cal.Rptr.2d 702, 842 P.2d 1, and summarized here. The evidence at trial showed that on July 1, 1986, Angela Womble lived with her mother, Mrs. Willie Womble, and her 16-month-old son, Terrance (Tee Tee), on South 42nd Street in Richmond. Tee Tee's father was Angela's former boyfriend, Terrance (Tee) Henderson, a reputed drug dealer. While still Henderson's girlfriend, Angela had held sums of money for him. After their relationship ended in August 1984, however, she ceased to do so.

Having cashed a payroll check on July 1, 1986, that evening Angela put cash in envelopes to pay bills. Around 9:45 or 10 p.m., Angela heard a knock at the front door. She asked who was there and heard a man answer, "Ann, this is Allie. Come take me to the gas station." She recognized the voice as that of John Allen Duchine, a friend of Terrance Henderson, and opened the door. On her front porch were Duchine and another man whom she did not know; both were carrying guns. The two forced their way into the house, knocking Angela to the floor.

Angela sat on the floor, looking at the men, for one or two minutes. At trial she testified lights were on in the breakfast nook and the bathroom; she could not remember whether the kitchen and living room were illuminated; the porch light was off. There was a street light to the north of the Womble residence. Angela testified Duchine's companion, whom she later identified as petitioner, was wearing a white T-shirt and jacket and a shiny stud earring and was carrying a shotgun about 20 inches in length with a barrel about the size of a 50-cent piece.

Mrs. Womble ran to the living room and began to hit petitioner, trying to force him to let go of his gun and demanding he leave her house. Petitioner pushed Mrs. Womble to the ground with his gun. Angela told her mother to stop and sit down.

Duchine demanded Angela give him money. She got up and retrieved the money from the bill payment envelopes, giving it to Duchine; she then returned to the living room and sat down. Duchine ordered her to give him all the money. Angela said she had given him all she had, but he demanded, "Where's Tee's money?" Angela said she did not have Tee's money. Duchine accused her of lying and again asked where the money was.

Angela, carrying Tee Tee, and Duchine went to Mrs. Womble's bedroom. Duchine rummaged through the room, looking for money. Eventually Angela returned to the living room. Twenty seconds to a minute later, Duchine also returned. Angela later discovered several items in her bedroom had been moved. Duchine and petitioner spoke with each other, but Angela could not hear what they said.

Petitioner pumped the shotgun and fired it into the ceiling. Angela urged her mother to lie down. Petitioner again fired into the ceiling, then pointed the weapon down and fired into the back of Mrs. Womble's head. Petitioner and Duchine then pointed their weapons at Angela, who also had lain down on the floor. She tried to duck, but felt she had been shot. Ten or fifteen seconds later, Duchine and petitioner left the house, closing the front door behind them.

Angela crawled to the front door, but could not open it. Tee Tee pulled the door open Various neighbors of the Wombles testified as to their observations on the night of the crimes. Police officers who responded to the call testified they were able to see in the lighting conditions present in the Womble residence. Other testimony showed petitioner and Duchine were together on the day of the crimes and after the crimes participated together in a telephone call.

[957 P.2d 302] for her and she screamed for help. Several neighbors responded. [18 Cal.4th 453] Angela told one of her neighbors she had been shot by Duchine and another man. A police officer arrived and asked Angela who had shot her. She named Duchine and described him; she said she did not know the other man, but gave a brief description of him.

The day after the offense, a detective interviewed Angela at the hospital where she was receiving treatment. She had difficulty breathing and was connected to an oxygen machine. The detective showed her two photographic lineups, each consisting of six photographs. In the first lineup, Angela positively identified Duchine's photograph. In the second, Angela identified petitioner's photograph, saying she was not positive but he looked like the man who shot her mother. She gave a verbal description of the gunman and said that friends and relatives had told her Duchine's accomplice was "Willie Johnson." In a later telephone interview, Angela again described the man in a fashion generally consistent with her earlier descriptions.

On July 17, having learned petitioner was in custody in Martinez, the detective attempted to arrange for Angela to view a live lineup. Petitioner refused to participate despite advice that he did not have a right to refuse and that the refusal could be used against him in court.

No physical evidence linked petitioner to the crime. The defense was misidentification. Dr. Elizabeth Loftus, a professor of psychology, testified about factors affecting human perception, memory and identification.

HABEAS CORPUS PROCEEDINGS

As noted, this court affirmed petitioner's conviction and sentence on appeal in 1992. During the pendency of the appeal, petitioner filed a petition seeking a writ of habeas corpus on the ground, inter alia, of his actual innocence of the capital offense. In support, petitioner submitted the declarations of various individuals to the effect that Timothy Johnson, petitioner's brother (who had died in 1989), acknowledged to them his guilt, and implied petitioner's innocence, of the offenses for which petitioner had been sentenced to death. Petitioner also filed the declaration of John Allen Duchine, petitioner's accomplice, who had been convicted at his separate trial of murder and other charges arising out of the Womble shootings. Duchine declared petitioner had not been present during the offenses and that Timothy Johnson was the person who fired the shots.

Evidence presented at the hearing

The thrust of petitioner's case at the evidentiary hearing was to establish Timothy Johnson's guilt by showing that, at the time of these offenses, Timothy was engaged in a turf war with the Henderson family over the crack cocaine trade in the Easter Hill neighborhood of Richmond, in furtherance of which Timothy planned and executed the Womble robbery murder. Petitioner also presented the testimony of various witnesses to the effect that he and Timothy were similar in appearance. ¹

Petitioner presented evidence showing that during the summer of 1986 Timothy Johnson was engaged in selling and using crack cocaine. Timothy had...