Johnson v. Soto

• Decision Date: 07 April 2015
• Docket Number: No. 2:12-cv-2887 MCE DAD P,2:12-cv-2887 MCE DAD P
• Court: U.S. District Court — Eastern District of California
• Parties: JOSEPH TERRELL JOHNSON, Petitioner, v. SOTO, Warden, Respondent.

JOSEPH TERRELL JOHNSON, Petitioner, v. SOTO, Warden, Respondent.

No. 2:12-cv-2887 MCE DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 7, 2015

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on December 1, 2006 in the Sacramento County Superior Court on charges of murder occurring during the commission of an attempted robbery, five counts of robbery, and two counts of attempted robbery, with the jury also finding that petitioner personally used a firearm during the commission of his crimes. Petitioner seeks federal habeas relief on the following grounds: (1) the trial court's denial of his motions to suppress pre-trial identifications and in-court identifications denied him his right to due process; (2) the trial court's exclusion of third-party culpability evidence violated his rights to a fair trial, to present a complete defense, and to due process; (3) the trial court's refusal to allow the defense to elicit from a prosecution witness petitioner's explanation for admissions made to his girlfriend violated his rights to a fair trial, cross-examination of the witnesses against him, and due process; and (4) the cumulative effect ofthe trial court's evidentiary errors violated his federal constitutional rights. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Background

In a published opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

During a two-week period in 2005, defendants Joseph Johnson and Jessica Nicole Holmes, along with Holmes's boyfriend, Corey Schroeder, robbed or attempted to rob at least five gas stations in the Sacramento area. Their mode of operation was virtually the same for each robbery: Schroeder would case the station, Johnson would rob the station attendant at gunpoint, and Holmes would drive them away. On the trio's last attempted robbery, Johnson shot and killed the station attendant, Prem Chetty.

Separate juries convicted Johnson and Holmes of murder during the commission of an attempted robbery, and multiple counts of second degree robbery and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 664.) They also found true gun-use enhancements and principal-armed enhancements as to each count. (Pen. Code, §§ 12022, subd. (a)(1), 12022.53, subds. (b), (d).) FN1

FN1. The information also charged Schroeder, but his trial was severed from defendants' trial.

The trial court sentenced Johnson to a prison term of life without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancement attached to the murder conviction, and an additional consecutive determinate term of 34 years four months for the remaining convictions and enhancements.

The trial court sentenced Holmes also to a prison term of life without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancements attached to the murder conviction, and an additional consecutive term of seven years eight months for the remaining convictions and enhancements.

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FACTS

June 25, 2005 Robbery at L & S Shell Gas Station, Madison Avenue and Auburn Boulevard (Count Three—Johnson only)

At about 11:20 a.m. on June 25, 2005, Johnson entered the automotive repair store adjacent to the L & S Shell gas station. Timothy Meton was working as the cashier. After the other customers left, Johnson pulled a gun from his waistband and demanded Meton give him "all the money."

As Meton took the money out of the cash register, Johnson "gestured" with the gun and told him to "[h]urry up." Meton gave Johnson all of the cash in the tray. Johnson told Meton to give him the money underneath the tray. Meton showed Johnson there was no money underneath the tray. Johnson stuffed the money into the front pocket of his sweatshirt and ran out the door toward a McDonald's restaurant located across the street. Meton estimated he gave Johnson about $700.

Meton participated in two lineups. The first, on July 10, 2005, was a photographic lineup that included Johnson. Meton did not identify anyone. The second, on July 15, 2005, was a live lineup. Meton requested the individuals each say "hurry up" and "underneath too." He identified Johnson after hearing the individuals speak. Johnson was the only person who was in both the photographic lineup and the live lineup.

Meton also identified Johnson in court as the robber.

Holmes's jury heard Holmes's July 11, 2005 interview with Sacramento County Sheriff's detectives. Regarding this robbery, Holmes stated Johnson had called her and asked her to pick him up. She, Schroeder, and another girl did so. Johnson directed Holmes to park at the McDonald's, and he went across the street to the Shell station. After he came back from the Shell station, he said, "Let's leave." After they drove out of the parking lot, Johnson told Holmes he had robbed the station. Holmes knew Johnson had a gun with him. She drove Johnson to another location, and he gave her $20 for the ride.

June 28, 2005 Robbery at Arco Gas Station, Walerga Road and Hillsdale Boulevard (Count Four—Johnson and Holmes)

On June 28, 2005, Kuljit Rai was working alone at his Arco gas station on the corner of Walerga Road and Hillsdale Boulevard in Sacramento County. At about 2:00 p.m., Johnson entered the store and robbed Rai at gunpoint of about $75. After Johnson ran out, Rai followed him and saw Johnson get into the back passenger seat of a small, white, four-door car. Rai could not see anyone else in the car.

The store's surveillance tape showed a White male in a white tank top enter the store. The tape also shows Johnson entering the store.

On July 15, 2009, Rai identified Johnson at a live lineup as the robber. Rai also identified Johnson in court as the robber.

During closing arguments, Johnson conceded his guilt to this crime.

June 28, 2005 Attempted Robbery of Shell Gas Station, Auburn Boulevard and Antelope Road (Count Five—Johnson and Holmes)

About 30 minutes after the Arco robbery, Johnson attempted to rob a Shell gas station at the corner of Auburn Boulevard and Antelope Road in Citrus Heights. Ewa Her was working at that station when, at about 2:30 p.m., he heard a voice behind him coming from the cash register counter. He turned around and saw Johnson standing at the counter and pointing a gun at him. Johnson repeatedly demanded Her to give him the money. When Her did not, Johnson put his hand on top of the gun and pulled back the slide. Her "freaked out" and ran to the back room. He never gave Johnson any money.

About a minute before Johnson came into the store, a White man in a white tank top came into the store and purchased a soda and some chips. Her did not attend a live lineup and he did not identify Johnson at trial.

There were two minors in the store at the time of the robbery. One of the minors saw Johnson put a glove on his right hand and possibly his left, pull a gun out, and heard him tell the clerk to give him money. The minors both identified Johnson at a live lineup and at trial as the robber.

Holmes's jury heard Holmes's statement that she had driven Johnson to this gas station, and she drove away after Johnson came back from the store.

During closing argument, Johnson conceded his guilt to this count.

June 30, 2005 Robbery of Arco/Valero Gas Station at San Juan Avenue and Winding Way (Count Nine—Evidence Presented to Holmes's Jury Only)

Thomas Claussen was working alone the evening of June 30, 2005, at the Arco/Valero gas station at San Juan Avenue and Winding Way.FN2 A tall, Black male entered the store. The man was slim, about 18 years old, wearing a blue Kobe Bryant jersey, a black baseball hat, and a glove on his hand. The man aimed his gun at Claussen and demanded money. Claussen gave the man all of the money in the cash drawer, about $130. After the robber left, Claussen went outside, but he could not see the man. Claussen saw a maroon pickup truck leave the area, but he did not know if the truck was related to the robbery.

FN2. The Attorney General refers to the station both as an Arco station and as a Valero station. Claussen testified he worked forValero but the station was branded as an Arco station. To avoid confusion, we will refer to it as an Arco/Valero station.

Claussen attended a live lineup that included Johnson. However, Claussen was unable to identify anyone as the robber of his store. On the sheriff's department lineup identification form, Claussen wrote that the robber was darker skinned than any of the lineup participants.

Holmes told detectives she drove Johnson to the Arco/Valero station. Johnson told her where to park. Johnson went into a nearby liquor store and then went into the Arco/Valero station. Johnson said nothing about a robbery when he came back to the car. Holmes did not know Johnson had robbed the station until a couple of days later.

Deputies later seized a Kobe Bryant jersey from the home where Johnson had been living. Johnson appears to be wearing the same jersey in a DMV photo.

As to Holmes, the court declared a mistrial on this count after her jury announced it was deadlocked. The prosecutor subsequently moved to dismiss the charge, and the court granted the motion.

June 30, 2005 Robbery of Chevron Gas Station at Dewey Drive and Madison Avenue (Count Six—Johnson and Holmes)

Also on June 30, 2005, at about 8:20 p.m., Johnson entered a Chevron gas station on the corner of Dewey Drive and Madison Avenue, walked to the counter, pointed a gun at the employee, Jesus Fernandez, and demanded all the money. Fernandez put all of the money from the cash

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