People v. Johnson, D026826

Decision Date24 March 1998
Docket NumberNo. D026826,D026826
Citation72 Cal.Rptr.2d 805,62 Cal.App.4th 608
Parties, 98 Cal. Daily Op. Serv. 2166, 98 Daily Journal D.A.R. 2972 The PEOPLE, Plaintiff and Respondent, v. Anthony L. JOHNSON, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Pamela A. Ratner, Deputy Attorneys General, for Plaintiff and Respondent.

KREMER, Presiding Justice.

Anthony L. Johnson was convicted of numerous violent sexual offenses, kidnappings and robberies. He was sentenced to 5 consecutive life terms plus 440 years. On appeal,

he contends he was denied his right to testify in his own defense, one count was not supported by substantial evidence, he should not have been convicted of both kidnappings and kidnappings for robbery based on the same conduct and he contends the abstract of judgment must be modified to conform to the oral pronouncement of judgment. We conclude the court erred in denying Johnson his constitutional right to testify but find the error harmless beyond a reasonable doubt. We also agree the simple kidnapping convictions on counts 9, 14, 40, 48 and 67 should be reversed and the abstract of judgment should be corrected to conform to the oral pronouncement of judgment. In all other respects, we affirm.

FACTS

Because of the nature of the issues on appeal, it is not necessary to set out a detailed recitation of the facts of each of the sexual assaults, except as to one victim which we discuss in more detail in the unpublished part of this opinion. The evidence shows Johnson kidnapped, robbed and committed brutal sexual offenses against seven different women over a period of several years. Six of the offenses involved a distinctive modus operandi of approaching the victim very late at night as she was getting out of her car or shortly thereafter, 2 forcing her back into the driver's seat while the assailant sat in the back seat, threatening to kill the victim if she did not obey, directing her to drive the car only a short distance (i.e., a matter of blocks), having her park the car and then pulling her into the back seat where he sexually assaulted her. As to the remaining victim (discussed in more detail in the unpublished part), Johnson assaulted her early in the morning while she was jogging near a college campus. In all the cases, Johnson raped and sodomized the victims, usually more than once and often in cycles. Johnson also had most of the victims orally copulate him or he orally copulated them. Johnson demanded money from the victims and went through most of their purses before leaving. After the attack, all of the victims had physical injuries or a demeanor consistent with having been forcibly raped and sodomized.

Two of the victims identified Johnson in a line-up. DNA evidence recovered in five of the cases matched Johnson with a random match probability of 1 in 3,600,000. Additionally, Johnson's fingerprints were recovered from two of his victim's vehicles, including one of the two cases where no DNA evidence was recovered. As to the one remaining victim where there was neither DNA nor fingerprint evidence, blood testing indicated Johnson could not be excluded as a donor of the sperm found in the victim and a pubic hair with characteristics similar to Johnson's pubic hair was found in the victim's car.

Johnson did not present any evidence except a stipulation that, if called to the stand, a police detective would testify he interviewed a witness who saw a person matching the description of the victim who was attacked near the college campus followed by a Black man (Johnson is Black) but did not pay much attention to them as they both appeared to be "homeless types."

We set out in more detail the circumstances surrounding his denial of his right to testify. At trial, after the prosecution had completed its case-in-chief, defense counsel requested and was granted an in camera hearing. Johnson was present during the in-chambers conference. Defense counsel told the court he had "an ethical conflict" with Johnson about Johnson's desire to take the stand and testify. Defense counsel explained, "I cannot disclose to the court privileged communications relating to that, but I'm in a position where I am not willing to call Mr. Johnson as a witness despite his desire to testify." In response to the court's question, Johnson indicated defense counsel had accurately described the situation and defense counsel indicated he would "[n]ot voluntarily" call Johnson as a witness.

The court, misunderstanding the situation, told Johnson that his attorney had decided it was not in Johnson's "best interest to testify" and confirmed Johnson wanted to testify. The following exchange then occurred "[DEFENSE COUNSEL]: Judge, this is not a trial tactic issue. This is an ethical conflict. If it were just a trial tactic, you know, in other words, a decision of what's the best choice, I always defer to the client's wishes in circumstances like this.

"THE COURT: What exactly are you trying to tell me ... that you won't examine him if he takes the stand?

"[DEFENSE COUNSEL]: I think under the--based upon the information I have, I would be ethically barred from calling him as a witness under the law as I have come to know it and very specifically researched it regarding this particular issue.

"THE COURT: Okay. [p] It's always very difficult for a trial judge based on my experience at least to sit in on these. It is like having both your hands tied behind your back because you have to make a decision. If your call based on what you know is that you have an ethical problem that will compel you not to call him and that that's over his objection, then I'll note it for the record. He will not be called--

"[DEFENSE COUNSEL]: That's fine.

"THE COURT:--Based on that. And we'll go forward. And you have in essence done everything you are required to do as an attorney by placing it on the record. And at this point in time I'm going to have to abide by it because you're the one that's making the call on the ethical issue.

"[DEFENSE COUNSEL]: Yes. I just want to be clear that this isn't a judgment situation that falls in the realm of a trial tactic. It's more than that.

"THE COURT: All right. [p] I will note, then, that you believe that there are ethical reasons, strong ethical reasons, apparently, because otherwise we wouldn't be sitting in here right now,--

"[DEFENSE COUNSEL]: Correct.

"THE COURT:--That cause you to come to the conclusion that you cannot under any circumstances call the client. And I will note that. And I will note that it's over his objection, and that he desires to testify."

Johnson did not testify.

DISCUSSION

I

A. Development of the Right to Testify

Under the early common law, interested parties, including persons accused of committing a crime, were disqualified from presenting sworn testimony. (97 C.J.S., Witnesses, § 120, p. 545; Ferguson v. Georgia (1961) 365 U.S. 570, 573, 81 S.Ct. 756, 758, 5 L.Ed.2d 783.) This disqualification of parties from presenting sworn testimony was clearly established by the end of the 16th century in civil cases on the basis the party's testimony was untrustworthy. (Ferguson v. Georgia, supra, at p. 573, 81 S.Ct. at p. 758.) Disqualification of criminal defendants "seems to have come somewhat later. In the sixteenth century it was necessary for an accused to conduct his own defense, since he was neither allowed to call witnesses in his behalf nor permitted the assistance of counsel. [Citation.] The criminal trial of this period has been described as 'a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning.' [Citation.] In the process the defendant could offer by way of explanation material that would later be characterized as testimony. [Citation.]" (Id. at pp. 573-574, 81 S.Ct. at p. 759.)

By the 17th century in England, a criminal defendant was allowed to call witnesses and by 1701 had the right to call witnesses to testify under oath but the defendant himself was still precluded from giving sworn testimony. (Ferguson v. Georgia, supra, 365 U.S. 570, 574, 81 S.Ct. 756, 759.) This rule deeming criminal defendants incompetent to give sworn testimony was adopted in this country. (Ibid.)

By the mid-19th century, parties and interested witnesses in civil cases were allowed to give sworn testimony in England and in most states in this country. (O'Neill, Vindicating the Defendant's Constitutional Right to Testify at Criminal Trial: The Need for an On-the-Record Waiver (1990) 51 U. Pitt. L.Rev. 809, 813, citing inter alia Popper Criminal defendants, however, were still deemed incompetent to testify. The two main arguments against permitting criminal defendants to testify were: (1) criminal defendants were so likely to commit perjury to avoid conviction that their testimony was inherently untrustworthy 3 and (2) permitting criminal defendants to testify would erode the constitutional right to remain silent and the presumption of innocence because suspicion would fall on the defendant who failed to testify. 4

                History and Development of the Accused's Right to Testify (1962) Wash.  U.L.Q. 454, 458.)   The elimination of the disqualification was based primarily on an argument that "a witness's motive for lying should go to the weight, not the admissibility, of testimony."  (Ibid.) As one legal commentator argued in 1835:  " '[A]ll evidence should be taken at what it may be worth, that no consideration which has a tendency to produce
...

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