People v. Johnson

• Decision Date: 20 March 1974
• Docket Number: Cr. 7033
• Citation: 38 Cal.App.3d 1,112 Cal.Rptr. 834
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Welvie JOHNSON, Jr., and Mel Allen Kelly, Defendants and Appellants.

Page 834

112 Cal.Rptr. 834

38 Cal.App.3d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Welvie JOHNSON, Jr., and Mel Allen Kelly, Defendants and Appellants.

Cr. 7033.

Court of Appeal, Third District, California.

March 20, 1974.

As Modified on Denial of Rehearing April 10, 1974.

Hearing Denied May 22, 1974.

Evelle J. Younger, Atty. Gen. by Gregory Baugher, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Marsha B. Shanle, Santa Cruz, for defendant and appellant Johnson.

Robert M. Wheatley, Sacramento, for defendant and appellant Kelly.

FRIEDMAN, Acting Presiding Justice.

Three men held up a liquor store in Stockton. In the course of the robbery Mr. Nemie, the proprietor, was fatally shot and Linda Osborne, a customer, wounded. Defendants Johnson, Kelly and Maynard were tried by a jury. Johnson and Kelly were found guilty of Nemie's murder; of robbing Nemie and John Reyes, the liquor store clerk; of assault with a deadly weapon upon Miss Osborne. Maynard was acquitted. Johnson and Kelly appeal from the judgments.

According to the prosecution evidence, three men entered the store. Reyes was in front tending the store, and Nemie was in the back room working on the books. One of the men, identified as Kelly, pulled out a gun and ordered Reyes to lie down on the floor. The man identified as Johnson held a gun on Nemie and ordered Nemie to unlock the safe. He stood over Nemie as the latter knelt and turned the knob of the combination. Linda Osborne entered the store and was met by a man she identified as Maynard. She was ordered to go the corner of the store and sit down facing the corner. Reyes heard the cash registers being opened and the drawers emptied. Johnson ordered Nemie to hurry unlocking the safe. The robber in the front of the store called 'I have got it.' At that point a shot sounded. Nemie slumped over with a fatal bullet wound in his head. A second shot wounded Miss Osborne. Approximately $2,000 in paper money was taken. The robbers ran from the store.

At the trial Reyes identified Kelly as the man who had held him at gunpoint and identified Johnson as the man who had stood over Nemie. Miss Osborne identified Kelly as one of the two robbers. She said that the third man was wearing a cover over part of his face but identified Maynard as the man.

At the trial the prosecution produced no physical evidence to identify Johnson and Kelly as the robbers. None of the stolen money was recovered. The defense attempted to discredit the identification testimony of Reyes and Miss Osborne. It relied on the fact that shortly after the robbery two other suspects, Dean and McCoy, were taken into custody and mistakenly identified by Shoneff, a passerby who had seen three men run from the store and drive away. The defendants also relied on the fact that while Miss Osborne had made a tentative identification of Johnson from photographs, she also saw McCoy and identified the latter as the man who had stood over Nemie with the gun.

On appeal Kelly charges that his in-court identification by Reyes was based on a pretrial identification involving the use of impermissibly suggestive photographs. At the trial Kelly made no objection to Reyes' in-court identification; hence the claim of improper pretrial identification procedure will not be entertained on appeal. (People v. Williams, 2 Cal.3d 894, 909, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Dobson, 12 Cal.App.3d 1177, 1181, 91 Cal.Rptr. 443.) Had such an objection been made, the trial court could have inquired into Reyes' independent recollection as the source of his in-court identification of Kelly. (See People v. Martin, 2 Cal.3d 822, 831, 87 Cal.Rptr. 709, 471 P.2d 29.) Indeed, the record shows that Reyes had seen Kelly in the store on prior occasions and knew him by sight. The absence of an objection resulted in a record which does not contain the two sets of photographs of which Kelly now complains. This reviewing court is now asked to accept Kelly's claim of improper suggestion without opportunity to review the photographs. These circumstances demonstrate why such a claim should not be received for the first time on appeal.

We do not imply that Kelly's trial counsel was derelict in not objecting. Faulty identification was at the heart of the defense in the trial court. Kelly's trial lawyer vigorously and in detail cross-examined Reyes on the subject of the witness' identification of Kelly. The cross-examination included an extensive and detailed inquiry into the pretrial identification process. For all that appears in the record, the absence of objection in the trial court was a deliberate election by the defense.

Both defendants assail a ruling rejecting an offer of the expert testimony of a doctor of psychology dealing with the ability of witnesses accurately to perceive, recall and relate and with the distorting effects of excitement and fear on perception and recollection.

Evidence Code section 780 enumerates the varieties of impeaching evidence a jury may consider, including (under subdivision (c)) the witness' capacity to perceive, recollect and communicate. Comtrary to defendants' argument, it does not follow that a party has a right to impeach a witness by calling another witness to testify as to the former's capacity. Evidence Code section 801, subdivision (a), limits expert testimony to subjects beyond the range of common experience, thus codifying the decisional rule vesting the trial court with discretion over the subject matter of expert testimony. (See People v. Cole, 47 Cal.2d 99, 105, 301 P.2d 854.) In cases not involving sex offenses California courts usually reject attempts to impeach a witness by means of psychiatric testimony. (Ballard v. Superior Court, 64 Cal.2d 159, 172, 49 Cal.Rptr. 302, 410 P.2d 838.) In People v. Russel, 69 Cal.2d 187, 70 Cal.Rptr. 210, 443 P.2d 794, the court explained in detail the criteria guiding discretion in permitting this sort of impeachment. The court declared in part: '(T)he evidence should be examined with a view to preserving the integrity of the jury as the finder of facts: expert opinion is admitted in this area in order to inform the jury of the effect of a certain medical condition upon the ability of the witness to tell the truth--not in order to decide for the jury whether the witness was or was not telling the truth on a particular occasion.' (People v. Russel, supra, 69 Cal.2d at p. 196, 70 Cal.Rptr. at p. 217, 443 P.2d at p. 801.) The court also suggested (Ibid., p. 195, fn. 8, 70 Cal.Rptr. 210, 443 P.2d 794) that the expert witness may be in no better position to evaluate credibility than the jurors.

It is at once evident that the nature of the occurrence and the apparent psychological health of the witness, i.e., existence of a 'medical' condition, are factors in the trial judge's discretion. The present occurrence was frightening but hardly deranging. There is no evidence or claim of emotional disturbance or psychological 'abnormality' of any of the prosecution witnesses. (Cf. Jefferson, California Evidence Benchbook, § 28.5; Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Cal.L.Rev. 648.) In rejecting defendants' offer of the psychologist's expert testimony, the trial court declared in effect that the testimony would take over the jury's task of determining the weight and credibility of the witness' testimony. The ruling was well within the range of discretion.

Defendants join in attacking the constitutionality of Penal Code section 189, the felony-murder statute. They base their claim upon federal Supreme Court decisions invalidating statutory presumptions in criminal cases unless there is a rational connection between the fact proved and the fact presumed. (See, e.g., Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 23 L.Ed.2d 57.) Defendants' theory is that proof of robbery has no rational connection with premeditation and malice, which are the two mental factors essential to first degree murder.

The State Supreme Court has said that the felony-murder rule serves 'to posit the existence of malice aforethought . . ..' (People v. Ireland, 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 197, 450 P.2d 580, 589, quoted in People v. Burton, 6 Cal.3d 375, 385, 99 Cal.Rptr. 1, 491 P.2d 793.) It has referred to the rule as an 'imputation of malice' (People v. Burton, supra) and an 'implication of malice' (People v. Poddar, 10 Cal.3d 750, 755, 518 P.2d 342). Although these expressions arouse notions akin to the presumption concept, they were not uttered in the context of the present problem.

A presumption is an assumption of one fact which the law requires to be drawn from another fact; it may be either conclusive or rebuttable. (Evid.Code, §§ 600, subd. (a), 601.) The felony-murder rule does not make the basic felony the source of a presumption (assumption, deduction or inference) of premeditation or malice. Rather, it dispenses with premeditation and malice as elements of first degree murder. It is a 'highly artificial concept,' a special expression of state policy designed as a deterrent to the use of deadly force in the course of the enumerated felonies, embracing accidental or negligent as well as deliberate killings. (See People v. Poddar, supra, 10 Cal.3d at p. 756, 518 P.2d 342; People v. Phillips, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Washington, 62 Cal.2d 777, 781, 44 Cal.Rptr. 442, 402 P.2d 130; 1 Witkin, Cal.Crimes, p. 283.) Bottomed as it is upon a misapprehension of the California felony-murder concept, defendants' novel constitutional argument fails.

Defendant Kelly in particular asserts inapplicability of Penal Code section 189, because it was Johnson, his confederate, who fired the fatal shot. He claims that armed robbery is included in fact within the offense of murder, hence that the felony-murder rule does not apply to him under the theory expressed in People v....