People v. Johnson

• Citation: 233 Cal.App.3d 425,284 Cal.Rptr. 579
• Decision Date: 14 August 1991
• Docket Number: No. HOO5433,HOO5433
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary Neal JOHNSON, Defendant and Appellant.

Page 579

284 Cal.Rptr. 579

233 Cal.App.3d 425

The PEOPLE, Plaintiff and Respondent, v. Gary Neal JOHNSON, Defendant and Appellant.

No. HOO5433.

Court of Appeal, Sixth District, California.

Aug. 14, 1991.

Review Denied Nov. 21, 1991.

[233 Cal.App.3d 432] Kyle Gee, Oakland, for defendant/appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., for plaintiff/respondent.

ELIA, Associate Justice.

Gary Neal Johnson appeals a judgment of conviction entered after severed trials on charges of murder and kidnapping, with allegations of firearm use, prior convictions, and special circumstances.

In the first trial, the jury found defendant guilty of the second degree murder of Adrianne Gilliam, who disappeared in June 1979.

In the second trial, concerning events in August 1986 arising out of a failed drug transaction, the jury found defendant guilty of the first degree murder of James Carver. The jury found true the allegation that defendant used a firearm in the commission of the offense. (Pen.Code, § 12022.5.) ¹ The jury also found defendant guilty of kidnapping Jeff Powers (§ 207, subd. (a)), and found true the allegation that he used a firearm in committing the kidnapping. The jury found not true the special circumstance allegation that the murder of James Carver occurred during the commission of the kidnapping. (§ 190.2, subd. (a)(17)(ii).) Defendant waived jury trial on the prior felony allegations and on the prior murder special circumstance. The trial court found true the allegations that defendant had previously been convicted of a serious felony (§ 667) and had served prison terms for two prior felony convictions (§ 667.5, subd. (b)). The trial court also found true the prior murder special circumstance allegation. (§ 190.2, subd. (a).)

Following Johnson's unsuccessful motion to strike the special circumstance finding and to reduce the degree of the murder conviction, the trial court sentenced him to state prison as follows: first, a determinate sentence of 14 years, comprised of a five-year midterm on the kidnapping count with a two-year enhancement for firearm use, two one-year enhancements for prior prison terms, and a five-year prior serious felony enhancement; next, an indeterminate sentence of 15 years to life imprisonment for the second degree murder conviction, to run consecutively to the determinate sentence; finally, a sentence of life imprisonment without possibility of parole for the first degree murder conviction, to run consecutively to the indeterminate sentence.

Defendant now appeals, claiming reversible error in both trials. Finding none, we affirm the judgment.

I. First Trial

A. Facts

Adrianne Gilliam was 16 years old when she first met defendant. Three weeks after meeting him, she moved in with him. They lived together for the next three years. On June 22, 1979, she disappeared and was never seen again.

At the time of her disappearance, Adrianne worked for a temporary agency as a nursing assistant. On June 22, 1979, she had been assigned to work at the Skyline Convalescent Home.

Adrianne reported for work on that date at about 7 a.m. Because she was not wearing a nurse's uniform, the nurse in charge of staffing sent Adrianne home. She was upset at not being allowed to work.

Clarice Johnson, defendant's mother, was living with defendant and Adrianne in June 1979. Clarice last saw Adrianne when she came home from work, unhappy at having to change her clothes. Adrianne never returned after leaving a second time for work that morning.

On the day of Adrianne's disappearance, defendant worked from about 6:45 a.m. to 3:15 p.m. without leaving his work premises. During the weekend of June 23-24, 1979, defendant telephoned Paul Skinner, his employer, to say that he might not come to work on Monday because his wife was missing and he had to look for her.

Police investigations into Adrianne's disappearance began in 1979, when defendant made a missing-person report, and continued sporadically for the next seven years.

Initial efforts failed to yield significant clues. On Monday, June 25, 1979, defendant provided police investigators with a list of people to contact. He also informed them that Adrianne frequently hitchhiked. The following day, believing the police were not doing all they could to find Adrianne, defendant confronted the investigators in an emotional manner, demanding to speak to the chief of police.

Within a couple of days after Adrianne's disappearance, defendant contacted her mother, Rosemary Daubek, and her brother, Randy Miller. He asked a friend to help him search for Adrianne in the San Jose area. Defendant seemed distraught at her disappearance.

At least once in July 1979 defendant consulted psychic Kathlyn Rhea in an attempt to discover Adrianne's whereabouts. He had two theories about the disappearance: one, that she had gone to her grandmother in New Jersey; the other, that she had met with foul play. He showed Ms. Rhea a letter from the grandmother, dated July 4, 1979, indicating that the grandmother had not seen Adrianne. Ms. Rhea described psychic impressions of a car with blue metal, a car with a blood-stained interior, and an area in some hills located near water. Defendant drove through the Santa Cruz mountains searching for signs of Adrianne.

The investigation resumed in 1984. Sergeant James Morin contacted Adrianne's mother and grandmother, checked IRS records under Adrianne's social security number, and left messages for defendant, who failed to return the calls. Defendant did not wish to discuss the case. When Sergeant Morin pressed him for details, he became upset.

In 1985 defendant married Lenora Colburn. They moved to Kansas, where they owned and operated a bar. Defendant's mother lived with them. One night some bikers came to the bar, bringing their own liquor. Defendant and Lenora decided to drink with them. Lenora became intoxicated and went home to bed. She woke to find defendant beating and threatening to kill her, telling her that what had happened to Adrianne would happen to her. Clarice attempted to intervene. Defendant dragged her from the room by the throat. Lenora escaped and sought shelter at a women's crisis center. She told a worker there that defendant had indicated he had killed Adrianne and could kill her, too. Lenora acknowledged on cross-examination that at the time of the beating she had been intoxicated and could not remember precisely what defendant had said. After she had had time to think about what had happened, she did not take defendant's comments as an admission that he had killed Adrianne. She did not at that time report his statements to the police.

Defendant had struck Lenora once before, when she was taunting him about possibly having killed Adrianne.

Sergeant John Kracht took over the investigation in 1986. He interviewed defendant, who denied any involvement in Adrianne's disappearance.

Sergeant Kracht also interviewed Pam Miller, Adrianne's sister. While living in a foster home, Pam had visited Adrianne and defendant regularly during 1978 and 1979. Pam claimed to have visited every weekend and testified to seeing defendant strike Adrianne during each of her visits. Sometimes he slapped her. Occasionally he would hit her with a closed fist. Usually the abuse would occur in response to Adrianne's "talking back" to him. Pam had never reported the abuse to anyone, fearing that to do so would jeopardize her visits to Adrianne. She maintained her silence after Adrianne disappeared because she did not associate the abuse with the disappearance. She decided to tell what she had seen when Sergeant Kracht told her that defendant had admitted to another county jail inmate that he had killed Adrianne.

Pam's social worker could not recall meeting Adrianne and did not remember Pam's visits to Adrianne. The visits would have been arranged through the social worker or her foster parents. Had she known of the abuse, the social worker would have stopped the visits.

Pam's foster father testified that Pam had a good relationship with her sister, but that she had probably made at most about a half-dozen visits to Adrianne.

Ken Hewitt, a friend of defendant, testified that Adrianne and defendant appeared to be compatible and in love. He never witnessed physical violence or serious arguments between them.

Clayton Meece, another friend of defendant, testified that Adrianne and defendant appeared to get along well most of the times he saw them together. He did not see any physical violence or serious arguments between them. However, once when Meece arrived at their home for a visit, defendant and Adrianne were teary-eyed and told him to come back another time. Their behavior led him to suppose they had had some kind of problem. Also, Clarice Johnson once called Meece at 3 a.m. to tell him that defendant was in the hospital, having tried to kill himself. Defendant told Meece his suicide attempt had to do with a disagreement with Adrianne. These two occurrences led Meece to think that the relationship was deteriorating.

Defendant's statements to various witnesses concerning the circumstances of Adrianne's disappearance varied considerably. In 1979 he told the police investigator he suspected Adrianne may have tried to hitchhike home from the convalescent hospital because she had hitchhiked frequently in the past. He gave no information corroborating this suspicion. Defendant told his friend Ken Hewitt that a nurse at the hospital had seen Adrianne hitchhiking home. Ken told Sergeant Kracht that defendant said people at the convalescent home had seen Adrianne getting into "either a blue 1957 Chevrolet or a blue older beat-up Chevrolet." When Pam Miller telephoned to arrange another visit with Adrianne, defendant told her Adrianne had disappeared. He told Pam she had come...