People v. Johnson
| Decision Date | 02 January 1987 |
| Docket Number | Cr. 22040 |
| Citation | 233 Cal.Rptr. 562,730 P.2d 131,43 Cal.3d 296 |
| Court | California Supreme Court |
| Parties | , 730 P.2d 131 The PEOPLE, Plaintiff and Respondent, v. Joe Edward JOHNSON, Defendant and Appellant. |
Robert R. Bryan, San Francisco, under appointment by the Supreme Court, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Gregory W. Baugher and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment imposing a sentence of death, prosecuted under the 1978 death penalty law (§ 190.1 et seq.). 1 We conclude that the improper and prejudicial admission of the rape victim's hypnotically induced testimony as to the identity of her assailant warrants reversal of the guilt and penalty judgments. (People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, cert. den. 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114; People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635.) For purposes of retrial, we uphold a parole search of defendant's residence.
In an amended information filed by the District Attorney of Sonoma County, defendant Joe Edward Johnson was charged with the murder of Aldo Cavallo, on or about July 24, 1979, in violation of section 187. For enhancement purposes it was further alleged that defendant personally used a deadly or dangerous weapon, a barbell, in the commission of the murder. (§ 12022, subd. (b).) Count I also alleged two special circumstances--that the murder was committed (1) while defendant was engaged in the commission or attempted commission of a robbery in violation of section 211 (§ 190.2, subd. (a)(17)(i)), and (2) while defendant was engaged in the commission or attempted commission of a burglary in violation of section 459 (§ 190.2, subd. (a)(17)(vii)).
Defendant was separately charged with burglary in violation of section 459 (count II) and robbery in violation of section 211 (count III), each of which included the enhancement allegations of personal use of a deadly or dangerous weapon (§ 12022, subd. (b)) and the intentional infliction of great bodily injury (§ 12022.7).
In count IV, defendant was charged with the rape of S. on or about July 28, 1979, in violation of section 261, subdivisions (2) and (3). It was further alleged that defendant was armed with and personally used a firearm (§§ 12022, subd. (a), 12022.5), and intentionally inflicted great bodily injury (§ 12022.7).
Based on the circumstances of the alleged rape, defendant was also charged with assault with intent to commit murder in violation of former section 217 (count V), robbery (§ 211) (count VI), and assault with a deadly weapon (§ 245, subd. (a)) (count VII). In count VIII, defendant was charged with possession of a concealable firearm by an ex-felon (§ 12021). Counts V, VI, and VII also alleged that defendant was armed with and personally used a firearm (§§ 12022, subd. (a), 12022.5), and intentionally inflicted great bodily injury (§ 12022.7). In counts IV, V and VI, it was further alleged that defendant's personal use of a firearm during the aforementioned crimes precluded the granting of probation or suspension of sentence, since defendant had previously been convicted of assault with intent to commit murder (former § 217) and escape by violence (§ 4530, subd. (a)).
Finally, for additional enhancement purposes, it was alleged that defendant had previously been convicted of assault with intent to commit murder (former § 217), battery (§ 4501.5), and escape by violence (§ 4530, subd. (a)), each resulting in state prison sentences, after which defendant had failed to remain free of prison custody and the commission of a felony offense, for a period of five years (§ 667.5).
Defendant entered pleas of not guilty as to all counts, denied all enhancement and special circumstances allegations, and denied the prior convictions alleged in the information. The superior court denied his motion to suppress evidence (§ 1538.5). Defendant's motion to sever the rape and murder charges was also denied. Pursuant to his motion for change of venue, venue was ordered transferred for trial to Sacramento County.
Defendant thereafter advised the court that he wished to enter a plea of not guilty by reason of insanity to the murder charges (counts I, II and III). He also filed a second motion to sever the rape and murder charges, which was denied. Defendant then admitted the prior convictions alleged in the information, and withdrew his plea of not guilty by reason of insanity to counts I, II and III, entering a plea of not guilty.
Trial commenced on January 26, 1981. At the conclusion of the guilt trial, the jury found defendant guilty of all charges except those set forth in count VII (assault with a deadly weapon, a pistol, upon the person of S.). After the penalty trial on count I, the jury fixed defendant's penalty at death. The trial court declined to modify the verdict (§ 190.4, subd. (e)), and on the remaining charges imposed consecutive sentences of eight, two, and three years on count IV (for violation of §§ 261, subds. (2) and (3), 12022.5, and 12022.7, respectively), and one year four months each on counts II and V; imposition of sentence was stayed on counts III and VI pursuant to section 654; and imposition of sentence was suspended on count VIII. Defendant was further sentenced to an additional year for each of his three prior felony convictions. This appeal followed.
On Thursday, July 26, 1979, the body of Aldo Cavallo was discovered in the bed of his Santa Rosa condominium. The body was lying under tightly tucked sheets and blankets pulled up to the chin, and was entirely covered by the bedspread. It was determined that the cause of death was "skull fractures with subdural and interstitial hemorrhage to the brain due to trauma and force." The injury was apparently inflicted by a barbell found at the foot of the bed, and could have been caused by only one blow. Type A blood, Cavallo's blood type, was found on the barbell.
The testimony of several neighbors and friends indicated that the crime occurred during the evening of Tuesday, July 24, 1979. Only one of these witnesses gave a description of a suspect. A neighbor, Jackie Wilkey, testified that on Tuesday evening, about 10 p.m., she noticed a man standing outside her apartment. When she attempted to approach the man, he ran between the condominiums. The man was tall, over six feet, with hair very close to the sides and higher on top. The man could have been Black.
Investigators found a window open in Cavallo's apartment. A nearby door, which could be opened by reaching through the window, was unlocked. A screen, apparently taken from the open window, was leaning against a patio chair. A fingerprint was obtained from the screen. Although experts for the prosecution and defense differed on whether the fingerprint was sufficiently legible for identification, the prosecution expert identified it as matching defendant's right thumbprint. A black glove was found in the apartment.
It appeared that the apartment had been burglarized and a television removed. Police located a purchase receipt and other documents for a Bohsei color television set, purchased from Long's Drugstore on December 2, 1978. The warranty registration card for that television, listing a serial number, had been completed by Cavallo and sent to Bohsei Enterprise Company in Los Angeles. The television was later located in defendant's residence, in a search conducted August 9, 1979, pursuant to a parole search condition.
Two boxes of Monark .22 caliber cartridges were found in Cavallo's residence, in addition to two other boxes of cartridges, two shotguns, and a shotgun case. No handgun was located.
The prosecution presented expert testimony that the Monark cartridges were packaged in April 1952, based on the inscriptions on the boxes. Monark was a brand name of Federal Cartridge Company until 1963; the cartridges themselves were manufactured until 1973.
The prosecution also presented testimony that Cavallo had owned a .22 caliber High Standard handgun that looked like a Field King or Sport King model. One witness testified that Cavallo had stated he kept a handgun in his nightstand.
On Saturday, July 28, 1979, Ms. S. attended the 8 a.m. mass at St. Eugene's Catholic Church in Santa Rosa. She remained in the church after the service to say the rosary. As she knelt, she noticed a tall Black man at the side door, about 12 feet away, who was looking around the church. The man walked toward S. and said, S. directed the man to the priest's house across the courtyard.
The man began walking away, then turned around and walked back to S. He opened his jacket and revealed a handgun. He said, "keep quiet now and you won't get hurt," and told S. to walk to the back of the church. He directed her to the "crying room," and then into a bathroom.
The assailant fired the gun into the toilet and told S. to "take off your pants" and to "get on the toilet," which she did. He then said "have you ever fucked a black man before?" and "when was the last time you were fucked by your husband?" and "something about play with pussy or something." The assailant had intercourse with S. and then told her to put on her pants.
The assailant next asked S. if she had any money. When she replied that she had no dollars, just change, he grabbed S.'s purse and looked through it.
S. was then told to "put your sweater over your head so you don't see me," which she did. She next recalled "groping around the pews," feeling "excruciating pain in her head,"...
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76 Hawai'i 474, State v. Propios
...was conducted for a supervisory purpose, and not as a subterfuge for subsequent criminal prosecution. 6 People v. Johnson, 43 Cal.3d 296, 730 P.2d 131, 233 Cal.Rptr. 562 (1987), cert. denied, 493 U.S. 829, 110 S.Ct. 98, 107 L.Ed.2d 62 (1989). The court in Johnson held that a warrantless par......