People v. Johnson

• Decision Date: 23 June 2004
• Docket Number: No. F042905.,F042905.
• Citation: 119 Cal.App.4th 976,14 Cal.Rptr.3d 780
• Parties: The PEOPLE, Plaintiff and Respondent, v. Glen Maurice JOHNSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

14 Cal.Rptr.3d 780

119 Cal.App.4th 976

The PEOPLE, Plaintiff and Respondent, v. Glen Maurice JOHNSON, Defendant and Appellant.

No. F042905.

Court of Appeal, Fifth District.

June 23, 2004.

Certified for Partial Publication.^*

Rehearing Denied July 21, 2004.

Review Denied Sept. 29, 2004.^**

Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOMES, J.

BACKGROUND

A jury found Glen Maurice Johnson guilty of second degree murder, conspiracy to murder, and accessory to murder, found all 13 allegations of overt acts true, and found all three allegations of arming of a principal with a firearm true. (Pen.Code, §§ 32, 182, subd. (a)(1), 187, subd. (a), 12022, subd. (a)(1).) On appeal, he argues, inter alia, that insufficiency of the evidence and instructional error on reasonable doubt require reversal. We will reject the insufficiency of the evidence argument, but instructional error on reasonable doubt will require that we reverse the judgment and order a new trial.

DISCUSSION

1. Sufficiency of the Evidence^**

2. Instructions on Reasonable Doubt

"The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock `axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.' [Citation.]" (In re Winship (1970) 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368.) Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged." (Id. at p. 364, 90 S.Ct. 1068.)

The record shows that during jury selection the court amplified at length on the standard reasonable doubt instruction (CALJIC No. 2.90):

"Q. [Prospective juror], tell us what you've done in your life, decisions you've made, where there has been absolutely no doubt in your mind.

"A. Starting a family.

"Q. Starting —

"A. No doubt in my mind that I wanted children.

"Q. No doubt in your mind that you wanted children. Did you have some doubt whether you could support them and nurture them properly?

"A. Yes.

"Q. So there was doubt, wasn't there[?] [¶] Is this the right time?

"A. Yeah.

"Q. That went through your mind. [¶] So we have eliminated that one. [¶] Can you come up with another one — absolutely no doubt in your mind?

"A. I wanted to go to college.

"Q. Okay. Did you go to college?

"A. Yes.

"Q. But when you went to college, when you left home, is there a little bit of question in your mind — did you leave home to go to college?

"A. Yes.

"Q. Was there a little bit of question in your mind?

"A. Yes.

"Q. Okay. We have eliminated that one. [¶] Can you come up with absolutely no doubt[?] [¶] Still looking for that. We will be here for a long long time and never come up with anything — you won't. [¶] What are you going to do when you're here on a jury and you want to be convinced beyond all possible doubt when it's never happened in your life?

"A. Good question.

"Q. There is a solution to it. What's the solution?

"A. Beyond a reasonable doubt.

"Q. Very good. See how smart this jury is getting. You're really now getting into it. That's what I like. [¶] If you work at it, all of you can figure it out."

The court authorized the prospective jurors to find Johnson guilty even if they were to have "some doubt" about his guilt and characterized a juror who renders a guilty verdict with "no doubt" about his guilt as "brain dead":

"So you've got to be convinced beyond a reasonable doubt, not beyond all possible doubt. [¶] ... [I]f any of you think you can sit in a jury trial in a criminal case and render a guilty verdict and walk out of this courtroom feeling good about the verdict because there is absolutely no doubt in your mind, it will not happen. Even if you render a guilty verdict, there will be some doubt in your mind[s]. [¶] If there is no doubt in your mind, then I can tell you you were brain dead during the trial — you are brain dead. That's not going to happen."

The court gave the prospective jurors the "legal definition" of reasonable doubt:

"When we say you have to be convinced beyond a reasonable doubt, we mean an abiding conviction of the truth of the charge. That's what you have to have, an abiding conviction of the truth of the charge."

The court equated proof beyond a reasonable doubt to everyday decision-making in a juror's life:

"Q. ... Let me just try something, because, you know what, just like the decisions that [prospective juror] made ... in her life that she thought she was sure of until we questioned her, every decision you make in your life is based on ... what's reasonable and possible. [¶] Can you think of anything you did today where you made decisions based on reasonable or possible?

"A. Yes, went to lunch close by so I wouldn't be late.

"Q. Possible [sic] went to a restaurant close by — that you went to a place that had food poisoning problems?

"A. Hopefully not, but possible.

"Q. If you had gone to one of the restaurants you're familiar with, you wouldn't have to worry about that. Was it reasonable for you to go that distance and try to be here on time[?] [¶] The answer is no.

"A. No.

"Q. So that's reasonable to go to a local restaurant."

With another prospective juror, the court continued to equate proof beyond a reasonable doubt to everyday decision-making in a juror's life:

"Q. How many of you drive an automobile[?] [¶] Everybody. [¶] How many of you are good drivers[?] [¶] Well, quite a few. [¶] All right. Let's try [prospective juror].

"A. My name's —

"Q. [Prospective juror], let me ask you a question first. You're a good driver?

"A. Yeah.

"Q. How many years have you been driving?

"A. Five.

"Q. You're still in the thinking stage after five years of driving. Been driving as long as I do, you don't have a mind anymore when you're behind a wheel. [¶] When you come to an intersection, the intersection controlled with lights and the light is green, what do you do[?] [¶] What do you as a good driver do?

"A. Drive through, look for pedestrians.

"Q. What else do you do[?] [¶] [Prospective juror], are you a good driver?

"A. I guess when I want to be.

"Q. When you want to be. [¶] What do you do when you come to an intersection and the light is green?

"A. Look both ways.

"Q. Good. Look both ways. [¶] Have your foot on the gas, get ready to take it off if you have to. Anything could happen in the intersection. [¶] Am I right so far[?] [¶] Okay. As you get close to that intersection with the green light, actually take it off the gas, put it on the brake, stop, get out, walk around the front, look at the cross-traffic lights to make sure they're red. [¶] Do you do that?

"A. No.

"Q. Is it possible those lights could malfunction, electrical mechanical malfunction?

"A. Possible.

"Q. Sure. If they malfunction, couldn't there be a serious accident there? [¶] Why don't you get out and check that?

"A. `Cause I guess I ain't a good driver.

"Q. You don't, because it is not —

"A. Reasonable.

"Q. Very good, [prospective juror] — not reasonable. [¶] Everything you do, you can look at what's reasonable and possible, and I tell you every decision you make along in your life are [sic] based on — that human beings — power of reason — something animals don't have. [¶] So we have that power of reason, and with that we can make these decisions along the way. [¶] So that's — that's not a definition of reasonable doubt, but that's what we want you to bring to court with you, the same thing you use every day in making your decision[s]. [¶] ... [¶] We found out now what you have to do. Go back to the jury room and figure out what happened beyond a reasonable doubt, not beyond all possible doubt. [¶] But the first thing you have to decide as jurors is: Is what happened beyond a reasonable doubt, because you are never going to know what really happened beyond all possible doubt, nor am I. We weren't there."

After one prospective juror acknowledged difficulty in passing moral judgments on others, the court gave the instruction that jurors are not to "pass a moral judgment" but are simply to make the "kind of decisions you make every day in your life":

"There is no place for you to pass a moral judgment in this court. The thing that you're doing is kind of decisions you make every day in your life, figuring out what happened, whether the defendant is guilty or not guilty.

"That's the kind of thing, the secular things, that you decide every day in your life."

After another prospective juror expressed an inability as a matter of conscience and religion to participate in a jury trial, the court instructed that jurors who find an accused person guilty or not guilty engage in the same decision-making process they "use every day. When you get out of bed, you make those same decisions."

In argument to the jury, the prosecutor took his cue from the court's reasonable doubt instructions, characterized a juror who could return a guilty verdict without "some doubt" about Johnson's guilt as "brain dead," and equated proof beyond a reasonable doubt to everyday decision-making in a juror's life:

"As Judge Oberholzer explained to you even with yourself, the things that you've done in your own life, there has always been, at the minimum, some kind of bit of doubt in the back of your mind about whether or not what you're doing is right or wrong. Even though you felt really strongly about it, there is still kind of lingering doubt. That's always going to be there.

"The Judge said something to you...