People v. Johnson, S178272.

Citation62 Cal.4th 600,364 P.3d 359,197 Cal.Rptr.3d 461
Decision Date21 January 2016
Docket NumberNo. S178272.,S178272.
CourtUnited States State Supreme Court (California)
Parties The PEOPLE, Plaintiff and Respondent, v. Billy Joe JOHNSON, Defendant and Appellant.

62 Cal.4th 600
364 P.3d 359
197 Cal.Rptr.3d 461

The PEOPLE, Plaintiff and Respondent,
v.
Billy Joe JOHNSON, Defendant and Appellant.

No. S178272.

Supreme Court of California

Jan. 21, 2016.


197 Cal.Rptr.3d 467

Mark D. Lenenberg, Simi Valley, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

CANTIL–SAKAUYE, C.J.

62 Cal.4th 607
364 P.3d 364

A jury convicted defendant Billy Joe Johnson of the first degree murder of Scott Miller (Pen.Code § 187, subd. (a) ),1 and found true the special circumstance allegations that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15) ), and for the benefit of, or at the direction of, and in association with a criminal street gang (§ 190.2, subd. (a)(22) ). The jury also convicted defendant of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)), and as an accessory after the fact (§ 32), and found true a criminal street gang enhancementallegation

197 Cal.Rptr.3d 468

as to all three counts. In connection with the murder and conspiracy counts, the jury further found true the allegation that a principal discharged a firearm. After the jury rendered its guilt phase verdicts, the court conducted a court trial on the special

364 P.3d 365

circumstance allegation that defendant previously had been convicted of murder (§ 190.2, subd. (a)(2) ), and found that allegation true. At the conclusion of the penalty phase trial, the jury returned a verdict of death. The court denied an automatic motion for modification of the death verdict to life without the possibility of parole (§ 190.4, subd. (e)), and sentenced defendant to death.2 DEFENDANT'S APPEAL is automatic. (§ 1239, subd. (B).) for the reasons that follow, we affirm the judgment.

62 Cal.4th 608

I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

a. Events prior to the murder of Scott Miller

Scott "Scottish" Miller was a founding member of an Orange County based White supremacist street gang called Public Enemy Number 1 (PEN1), which formed in the mid 1980s. By the mid to late 1990s, Miller's status within the gang had diminished, and he had become marginalized.

In February 2001, a local television station aired two news segments about PEN1. The segments featured an interview with Miller, who spoke candidly about the gang's activities, including its use of violence. Although news producers attempted to protect Miller's identity by disguising his face and voice, PEN1 gang members immediately recognized Miller by his tattoos, mannerisms, and the objects around him, including his pit bull.

The news segments were considered bad timing for PEN1, whose two main leaders were then being tried on charges of conspiracy to commit murder. As a result of the broadcasts, PEN1 leadership put a "green light" on Miller, marking him for execution. On several occasions during the year that followed, Miller told his girlfriend that he was concerned for his safety. According to one former gang member, however, Miller was still "running around" because no one had the courage to deal with him. Shortly before March 2002, officers in the gang unit at the Costa Mesa Police Department were actively looking for Miller to warn him that they had received credible information that PEN1 members were planning to kill him.

b. The murder of Scott Miller

On the evening of March 8, 2002, a little over one year after the news segments about PEN1, defendant's cousin hosted a party in Costa Mesa. Several members and associates of PEN1 attended the party, including Miller and defendant, who had recently transitioned to PEN1 after a falling out with the Nazi Low Riders, a White supremacist prison gang. Although defendant had known Miller for decades, he had not seen Miller since the news broadcasts had aired. According to the testimony of a mutual friend who also attended the party, Miller and defendant were laughing together and joked about Miller keeping "his guard up."

62 Cal.4th 609

Around 10:30 p.m. on the night of the party, Miller's now ex-girlfriend received a voicemail message from him. He sounded concerned. In the background she heard

197 Cal.Rptr.3d 469

voices, one of which she recognized as defendant's. Another woman who previously had dated Miller saw him when she first arrived at the party at 10:00 p.m. But she left the party shortly thereafter to buy drugs and by the time she returned around 11:00 p.m., Miller was no longer there.

Earlier that day, PEN1 member Michael Lamb had called Christina Hughes at her Anaheim apartment. He was looking for Tanya Hinton, a PEN1 associate who was staying there. Hughes told Lamb that Hinton was not at the apartment. He responded, "It is important, have her call me when she gets home." Hughes gave Hinton the message when Hinton arrived at the apartment in the early evening, but told Hinton that she did not want any visitors coming to her place. Shortly before 11:30 p.m., however, Hughes walked downstairs from the upper level of the two-story apartment and saw Hinton with Lamb and PEN1 member Jacob

364 P.3d 366

Rump on the first floor. Both men had recently been released from prison. When Hughes demanded that they go, Hinton assured her the group was leaving, and Hughes went back upstairs. Minutes later, Hughes heard a single shot fired outside in the alley. A neighbor whose home faced the alley also heard a gunshot, followed by the sound of screeching tires. Sometime between 11:30 and 11:35 p.m., Hughes and a friend went to the alley to investigate. She saw the dead body of a man she did not recognize and a large amount of blood.

Police responded to the scene about 20 to 25 minutes after the shooting, and found Miller's body facedown in the alley with blood coming from the head area. There was a bloody baseball cap and soda can underneath Miller's head, which suggested he had been surprised by the gunshot and dropped the items where he was shot. In the blood, police found tire impressions that were heading away from the location of the body. They also recovered a nine-millimeter Luger casing on the ground 15 feet from the body.

An autopsy showed Miller had died from a single gunshot to the back of his head, which lacerated his cerebellum and cerebrum. According to the forensic pathologist, Miller probably lost consciousness immediately and death occurred within minutes. The absence of burning, singeing, stippling, or soot at the entrance wound suggested the barrel of the gun was some distance from the skin, not in contact with it.

The day after the shooting, defendant called Miller's former girlfriend, asking her if she had heard what happened. He told her that "Scott is no longer with us" and something to the effect that if she needed anything, he would be there for her.

62 Cal.4th 610

That same day, defendant spoke with his friend and fellow gang member Donald McLachlan about his involvement in Miller's death. Defendant told McLachlan that he drove with Miller from the party in Costa Mesa to Anaheim, telling Miller they were going to get drugs. Defendant also indicated that he was walking next to Miller in the alley before he was killed. When Miller heard footsteps coming from behind, he asked defendant, "Are those PEN1 guys?" He was then introduced to Lamb and Rump. According to defendant, Miller seemed resigned to the idea that something was going to happen to him.

Defendant identified Lamb as the shooter. He also told McLachlan that he was angry and upset about the way the killing was handled and had confronted Lamb about it. Describing Miller as a "dear friend," defendant thought Miller should have been executed by a shot to the face, not to the back of the head. As defendant

197 Cal.Rptr.3d 470

envisioned the scenario, Miller should have been told to his face, "You had a good run, you ran afoul of the rules, it is time to go." Defendant explained that Miller had to be killed because of the news interview and "his actions ... in the neighborhood."

c. The investigation

Three days after the shooting, Lamb and Rump were taken into custody after leading police on a high-speed chase in a stolen car and fleeing into an Anaheim apartment complex. Just before his arrest, Lamb fired a shot at...

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