People v. Johnson

• Citation: 859 P.2d 673,23 Cal.Rptr.2d 593,6 Cal.4th 1
• Decision Date: 18 October 1993
• Docket Number: No. S005232,S005232
• Court: United States State Supreme Court (California)
• Parties: , 859 P.2d 673 The PEOPLE, Plaintiff and Respondent, v. Laverne JOHNSON, Defendant and Appellant.

Page 593

23 Cal.Rptr.2d 593

6 Cal.4th 1, 859 P.2d 673

The PEOPLE, Plaintiff and Respondent, v. Laverne JOHNSON, Defendant and Appellant.

No. S005232.

Supreme Court of California,

In Bank.

Oct. 18, 1993.

Rehearing Denied Jan. 12, 1994.

[859 P.2d 677] [6 Cal.4th 13] Barry L. Morris, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Laurence K. Sullivan, Dane R. Gillette, Ronald S. Matthias, David Lew and Joan Killeen, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

I. INTRODUCTION

By information filed in San Mateo County Superior Court, defendant Laverne Johnson was charged with two counts of murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), and one count of arson of an inhabited dwelling (§ 451, subd. (b)). The information alleged the murders constituted a special circumstance of multiple murder (§ 190.2, subd. (a)(3)).

The jury found defendant guilty on all three counts, finding true the special circumstance allegation. The jury subsequently returned a death verdict, and the trial court sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We note that on April 15, 1993, defendant filed a habeas corpus petition with this court. We denied the petition on September 15, without issuing an order to show cause.

As will appear, we reject defendant's claims of prejudicial error and affirm the judgment in its entirety.

II. FACTS

On January 15, 1986, police officers and firefighters were summoned to a house fire in Daly City. Inside the house, the officers found the bodies of Maria Victoria Holmes, aged 52, and her daughter, Luisa Anna Castro, 32. The evidence indicated that two fires (one upstairs, and one downstairs) had been intentionally set, probably through the use of some flammable liquid. Victim Holmes evidently had been severely beaten and kicked. Her body showed extensive contusions and abrasions; her face was swollen and bloody. An autopsy indicated she died from 12 or more blows to her head and face. Victim Castro's body was burned beyond recognition; a large knife was found nearby. An autopsy determined, however, that she had died from strangulation; a wire was found wrapped tightly around her neck.

Further investigation revealed the following facts: Victim Holmes was a hotel manager who wore expensive jewelry and possessed an extensive collection of gold jewelry from Central America. She shared her home with her daughter, victim Castro, a nightclub security guard, who was currently dating defendant, a customer of the club. Castro also had a collection of gold jewelry and frequently boasted of it. On the night of the murders, Castro had prepared dinner for defendant at her home after they had driven her children to a babysitter. Later that evening, someone murdered the two women, stole their jewelry, and set fire to their home in an apparent attempt to cover up the crimes.

Defendant was arrested after a girlfriend, Roshaun Fuller, told police that he had admitted assaulting the women and taking their jewelry. According to Fuller The defense offered an alibi (defendant was seen engaging in a bar fight on the day in question) and evidence to cast doubts on Fuller's testimony, which was frequently contradictory and inconsistent. According to a defense investigator, Fuller admitted lying to police regarding defendant's admission that he assaulted both women.

[859 P.2d 678] defendant stated he "knocked out" Castro and, when victim Holmes came upstairs to investigate, he knocked her down and kicked her in the head. Defendant had been seen wearing, and later pawning, some gold jewelry, although it could not positively be traced to the victims. Defendant also admitted to the investigating officers some facts regarding his relationship with Castro, including sharing dinner with her at her home on or about the night of the murders. According to defendant, he left the house after Castro had become intoxicated and fallen asleep. Although defendant denied killing the women, at one point he told the interrogating officer that, "I probably did do it, but you are not going to get me to say I did do it."

At the penalty phase, the People admitted evidence of defendant's prior crimes, including four prior felony convictions for robbery, burglary, disorderly conduct (transmitting a false alarm), and theft, and numerous unadjudicated offenses including rapes, oral copulation, robberies, batteries and assaults.

The defense relied primarily on background and character evidence, including testimony regarding defendant's troubled childhood, his lack of parental guidance, and the likelihood he would succeed in a supervised prison setting. Defendant personally testified regarding some of the foregoing matters, and attempted to mitigate some of the "prior crimes" evidence by explaining the extenuating circumstances surrounding them.

A defense psychologist, Dr. Fricke, testified regarding defendant's sociopathic personality. On rebuttal, a prosecution psychiatrist stressed defendant's antisocial and manipulative personality, and his potential dangerousness.

III. GUILT PHASE CONTENTIONS

A. Discharge of Juror Solano

Defendant first contends the court erred in discharging Juror William Solano after trial had commenced. In a related contention, defendant asserts he was wrongfully excluded from the in camera hearing held to determine whether Solano should be excused. We conclude neither contention has merit.

Near the close of the prosecution's case-in-chief, the court called for an in-chambers conference and revealed the following facts and observations: Juror Solano did not appear to be paying attention to the witnesses; instead, he was either watching the judge or defendant, or was "doodling" in his notebook. Solano "consistently smiled" at defendant, "to the extent that the teeth are showing." On many occasions, defendant smiled or nodded back at Solano. In addition, the court noted that Solano had been late in arriving at the courtroom at least three times, and that he tended to close his eyes and possibly "nod off" during court proceedings. The court further indicated that police records revealed Solano had been arrested for possessing narcotics, contrary to his jury questionnaire response that his only arrest was "for being out late while under age."

The court questioned the two courtroom deputies, who confirmed that Solano appeared to be paying no attention to the proceedings. Deputy Kutch read from his logbook, which indicated Solano had "nodded off" three times, had doodled for fifteen minutes on one occasion, and had nodded or smiled at defendant seven times during the trial. Deputy Steiner confirmed that Solano had closed his eyes for a short time on several occasions, and had frequently smiled at or greeted defendant before lunch breaks.

The prosecutor asked that Solano be examined regarding his fitness to remain on the jury. The prosecutor observed that on Defense counsel objected to the hearing, noting that several other jurors had also either closed their eyes during testimony or smiled at defendant. Counsel also requested that defendant be present at any further hearing on Solano's status as a juror. The court denied this request on the basis that the hearing was not part of the trial, did not involve defendant's guilt, and bore no reasonable relation to defendant's opportunity to defend himself. Additionally, according to the court, defendant's presence might intimidate Solano and make it more difficult to extract accurate responses from him.

[859 P.2d 679] one occasion he noticed [6 Cal.4th 17] that Solano's eyes were closed and his chin was resting on his chest. As Solano began to fall forward, he opened his eyes in a startled manner.

Defense counsel indicated that, in order to avoid alienating Solano, he too would not attend the hearing. The prosecutor likewise elected not to attend. The court thereupon questioned Solano in his chambers on a variety of subjects. When asked about his response to the questionnaire inquiry regarding prior arrests, Solano acknowledged he had been arrested when cocaine had been discovered nearby, and had also been arrested for public intoxication. When asked why he had failed to reveal that information, he replied that "I was just trying to get through with this questionnaire as soon as possible. It just didn't seem that important to me."

Solano also acknowledged he had closed his eyes occasionally during trial, and had nodded or smiled at defendant from time to time. According the Solano, these gestures and smiles were "just a reaction [to] someone smiling at me.... I smile back."

The court ruled that Solano should be excused because of his concealment of his prior arrests, and because of his sleeping during the course of the trial. The court replaced Solano with one of the alternate jurors, Samuel Ybarra.

1. Defendant's absence from hearing--Before examining the propriety of discharging Solano, we must determine whether the court erred in refusing to allow defendant personally to attend the in-chambers hearing regarding possible discharge of the juror.

The defendant has a constitutional (Cal.Const., art. I, § 15) and statutory (§§ 977, subd. (b), 1043, subd. (a)) right to be personally present at his trial. (See also United States v. Gagnon (1985) 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486, and cases cited [defendant has federal due process right to attend court proceedings if his presence has a reasonably substantial relation to his ability to defend himself].)

Under section 977, subdivision (b), the defendant "shall" be present at certain proceedings (arraignment, plea, preliminary examination, sentencing, and "those portions of the trial when evidence is taken before the trier of fact"), and "shall"...