People v. Johnson

• Decision Date: 27 May 1971
• Docket Number: Cr. 18931
• Citation: 95 Cal.Rptr. 316,18 Cal.App.3d 458
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Lewis JOHNSON, Defendant and Appellant.

Page 316

95 Cal.Rptr. 316

18 Cal.App.3d 458

The PEOPLE, Plaintiff and Respondent, v. Robert Lewis JOHNSON, Defendant and Appellant.

Cr. 18931.

Court of Appeal, Second District, Division 1, California.

May 27, 1971.

Rehearing Denied June 25, 1971.

See 96 Cal.Rptr. 695.

Hearing Denied July 21, 1971.

Donald F. Roeschke, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

THOMPSON, Associate Justice.

This is an appeal from a conviction after jury trial of first degree murder, attempted robbery, burglary, and conspiracy to commit burglary and robbery. We modify the judgment and affirm it as modified.

Viewed as it must be in the light most favorable to the judgment, the record discloses the following. On March 23, 1969, between 4 and 5 p.m., appellant discussed the possibility of committing a robbery with Messrs. Francioni, Hackler, Barnes, Hofmann, Miss Patricia Lambert, and a girl identified as 'Beckie.' Appellant mentioned 'an easy hit at a photographer.' Miss Lambert had posed for Jack Richardson, a professional photographer, the preceding September. She drew a sketch of the interior of Richardson's apartment. Appellant, Hofmann, Barnes, Francioni, and Hackler left for the Richardson apartment, Francioni and Hackler in a Dodge Polara and appellant and the others in another vehicle. Appellant instructed the others to go to the apartment and once there to shake the curtains to signal that it would be all right for him to come up.

On arrival at the apartment building, appellant told the others to check the area. He asked Francioni and Hofmann if they had their guns. They indicated they did. Hofmann, Francioni, and Hackler went to the Richardson apartment. Pretending to be policemen, they forced their way in. Francioni demanded Richardson's wallet. When Richardson replied, 'what do you want?' he was pistol-whipped, beaten, and kicked. In the ensuing struggle, Hackler was shot in the stomach and Richardson was shot and killed.

Melvin Andres, who lived in the same house with appellant, Miss Lambert, and Beckie, was present there on March 23 when Hofmann, Barnes, Hackler, and Francioni came to the residence. He left soon after they arrived and before the others began their conversation planning the Richardson robbery. Andres returned to the house at about 1:15 the following morning. Appellant said 'that everything was f d up.' Andres asked what he meant and appellant replied, 'Glenn got shot.' Andres asked, 'How?' Appellant responded that 'they' went after a photographer in Hollyowod. Andres asked if the photographer had been shot and whether he was alive or dead. Appellant replied that the victim had been shot and that he did not know if he were alive. Appellant said that he had sent Barnes out to bury the gun.

Andres left the house and returned at approximately 6:30 a.m. Barnes appeared shortly thereafter. Barnes told appellant that 'they' had dropped Hackler off in Santa Ana to seek help for his gunshot wound, telling Hackler to inform the police that he had been shot while being robbed. Barnes said that he had 'dropped the Dodge at the Holiday Inn Motel' and that it was bloodstained from Hackler's wound. Appellant told Barnes to get rid of the car by taking it to San Diego and burning it if necessary.

Andres drove Barnes to the Holiday Inn Motel where Barnes entered the Dodge. Andres followed Barnes about 100 miles south on the San Diego Freeway to a beach 3 to 5 miles south of Solano. There Barnes took the license plates off the car, doused the auto with gasoline, and set it on fire. He threw the license plates away as Andres drove him back to Los Angeles.

Upon returning to appellant's house, Andres observed a .45 caliber pistol apparently bloodstained. Francioni, who was also present, said that he had heard that the police were looking for a suspect who matched his description, including 'long, curly, kinky hair.' Appellant told Francioni to get a haircut. Hofmann was also present. As he and appellant left, Hofmann said that they were going to arrange an alibi.

A few days later, appellant told Andres, 'Those guys missed $1800 in Richardson's apartment.' Andres told appellant to stop worrying about the money and start thinking of getting out of town. Appellant replied that the neighborhood was 'hot' and that he should not be around in it.

After a jury trial, appellant was adjudged guilty of the first degree murder of Richardson, the attempted robbery of the victim, the burglary of the Richardson apartment, and of conspiracy to commit burglary and robbery. After a jury deadlock in the penalty phase of the trial, he was sentenced to life imprisonment on the murder count and to state prison on the other counts to run concurrently with the life sentence. Execution of sentence on the latter counts was stayed pending service of the sentence of life imprisonment.

On appeal, appellant contends: (1) the trial court erroneously instructed on the burden of proof of establishing that Andres was or was not an accomplice; and (2) the conviction must be reversed for insufficiency of evidence corroborating accomplice testimony. He also contends, and respondent concedes, that the judgment must be modified to add that the stay of execution on Counts II, III, and V shall become permanent upon the completion of service of the term to which appellant was sentenced in Count I (murder). ¹

Burden of Proof of Accomplice Status

The incriminating evidence against appellant consisted principally of testimony of Hackler, Miss Lambert, Hofmann, Francioni, and Andres. The trial court instructed the jury that Hackler, Miss Lambert, Hofmann, and Francioni were accomplices as a matter of law and that their testimony was insufficient to convict appellant unless it were corroborated. The only potential corroboration consisted of testimony by Andres. There was in turn conflicting evidence whether or not Andres was himself an accomplice. The trial judge squarely met the problem by instructing on the distinction between an accessory after the fact and an accomplice (see People v. Wolden, 255 Cal.App.2d 798, 804, 63 Cal.Rptr. 467), and informing the jury that it must decide whether Andres was an accomplice or merely an accessory. The court defined the burden of proof on the issue of Andres' status as follows: 'You are instructed that at the outset of your deliberations, you must presume that Andres was not an accomplice; the defense has the burden of proof insofar as raising a reasonable doubt on this issue only. This means that you must consider all of the evidence to determine if it causes you to have a doubt that Andres was not an accomplice. If you have such a doubt, you must then determine if it amounts to a reasonable doubt, as has been defined. If you have such a reasonable doubt, then you cannot use Andres' testimony as possible corroboration, and you should vote for acquittal. If you find that the defense has failed to raise a reasonable doubt as to this issue, and you find that Andres was an accessory only, then you may consider his testimony in deciding whether or not the testimony of an accomplice, or accomplices, has been corroborated.'

Appellant contends that the instruction as given is erroneous and that the trial court should have instructed as requested by appellant, that the burden of proof was on the prosecution to establish that Andres was not an accomplice. Counsels' briefs indicate that their research has disclosed no California decision dealing directly with the problem here presented. Our independent research has been similarly barren. Decisions of other jurisdictions, however, appear uniformly to place the burden on the defendant to establish that a witness is an accomplice thus triggering the need for corroboration of his testimony. ² Secondary authority states the same rule. (VII Wigmore, Evidence (3d ed.) § 2060, 'The...