People v. Johnson, No. S105857.

CourtUnited States State Supreme Court (California)
Writing for the CourtCANTIL–SAKAUYE, C.J.
Citation353 P.3d 266,190 Cal.Rptr.3d 536,61 Cal.4th 734
PartiesThe PEOPLE, Plaintiff and Respondent, v. Lumord JOHNSON, Defendant and Appellant.
Decision Date09 July 2015
Docket NumberNo. S105857.

61 Cal.4th 734
353 P.3d 266
190 Cal.Rptr.3d 536

The PEOPLE, Plaintiff and Respondent
Lumord JOHNSON, Defendant and Appellant.

No. S105857.

Supreme Court of California

July 9, 2015.

190 Cal.Rptr.3d 546

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold A. Erickson, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.



61 Cal.4th 740
353 P.3d 274

A jury found Lumord Johnson, defendant, guilty of the first degree murder of Martin Campos by personal use of a firearm (count 1). (Pen.Code, §§ 187, subd. (a), 12022, subd. (a)(1), 12022.5, subd. (a).)1 The jury also found defendant guilty of the second

353 P.3d 275

degree murder of Camerina Lopez by personal use of a firearm (count 2). (§§ 187, subd. (a)189, 12022.5, subd. (a).) The jury further found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), and that defendant committed Campos's murder while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)), and a kidnapping and kidnapping for robbery (§ 190.2, subd. (a)(17)(B)). The jury additionally found true that defendant was previously convicted of a serious or violent felony, manslaughter. (§§ 667, subds. (c), (e), 1170.12, subd. (c), 667, subd. (a).)2 After

190 Cal.Rptr.3d 547

the penalty phase, the jury was unable to reach a verdict on penalty. The trial court impaneled a new jury, which fixed the penalty at death after a second penalty trial. The court sentenced defendant to death on both murder counts and stayed execution of the prior conviction and firearms enhancements by stipulation of the parties.

This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death as to the Lopez murder because death is not an authorized sentence for second degree murder. We also set aside the kidnap-murder special-circumstance finding due to instructional error, but we affirm the judgment in all other aspects.

I. Facts and Proceedings

A. Guilt Phase

1. The killing of Camerina Lopez

a. Prosecution's case

At the time of her death, Camerina “Candy” Lopez had been dating Jose Alvarez. Lopez knew defendant, whose nickname was “Lamar,” from the Casa Blanca neighborhood in Riverside. She lived a few houses away from

61 Cal.4th 741

the residence of Valerie Williams, an elderly woman whose live-in caretaker, Deborah Galloway, was defendant's aunt. Defendant visited his aunt often.

On June 25, 1994, Alvarez drove past Williams's house and saw defendant standing outside it. According to Alvarez, defendant expressed displeasure at him driving in the area and told him to “keep on going straight.” Alvarez angrily exchanged profanities with defendant through the open driver's side window. Defendant told Alvarez to get out of the car, but Alvarez drove home.

About half an hour later, Alvarez called Lopez, told her what happened, and described defendant. Subsequently, Alvarez picked up Lopez from her home, and they went to the store and the park.

A few hours after that, as Alvarez drove Lopez home, he saw defendant on the porch of Williams's house again and pointed him out to Lopez. Lopez asked Alvarez to stop. Lopez opened her passenger door and tried to talk to defendant. Alvarez got out and walked around the car. With his hands open, Alvarez said, “What's up?”

In response, defendant grabbed a shotgun from the porch and ran toward Alvarez. Defendant then struck him on the side of the head with the butt of the shotgun, which caused a bleeding laceration. As the men struggled over the gun, Lopez exited the car. Alvarez told her to get back in the car, but she approached and stood next to Alvarez, who was now facing defendant. Defendant had one hand on the handle of the shotgun and the other hand on its barrel, which was slightly raised and positioned across his chest.

Defendant then moved the gun very quickly in front of him. Alvarez looked at Lopez and tried to push her away as she stepped toward defendant. Alvarez heard a gunshot and saw Lopez drop onto the street. Defendant fled towards Williams's house. As she lay in the street bleeding, Lopez cried for help and said, “He shot me.”

Defendant's aunt, Galloway, and his friend, Todd Brightmon, witnessed the shooting and gave a similar account. It

190 Cal.Rptr.3d 548

appeared to both

353 P.3d 276

of them that Lopez had positioned herself between defendant and Alvarez and was trying to separate them when she was shot. Galloway heard defendant yell out, “Todd” shortly after the shooting and did not see defendant again.

A bystander flagged down a California Highway Patrol officer, who responded to the shooting scene. As Lopez lay on the ground, bleeding and apparently in great pain, Lopez said “Lamar” or “Lamar Johnson” shot her, described defendant, and indicated that defendant lived in or frequented Williams's house.

61 Cal.4th 742

Lopez was transported to Riverside Community Hospital. At the hospital, she told another officer that she and Alvarez were standing next to the car when Lamar approached them with a shotgun and started an argument with Alvarez. According to Lopez, when Lamar pointed the shotgun at Alvarez, she stepped in between them to prevent Lamar from shooting him, and Lamar shot once. Lopez died in surgery that night.

Officers searched the Williams house but did not find defendant. Defendant's aunt told an officer that defendant had run out the back door of the house. In the backyard, officers found a 12–gauge Winchester shotgun lying on the dirt. The shotgun had one expended shell inside, and the magazine contained three additional live rounds.

Dr. Joseph Choi, the forensic pathologist who conducted an autopsy on Lopez, determined that she had died from a single shotgun wound to her chest. Shotgun wad and hundreds of shotgun pellets were found inside Lopez's chest and abdomen. The pellets penetrated Lopez's diaphragm, damaging the liver and perforating the vena cava and right kidney. Because of the presence of unburned gunpowder, the appearance of the wound, the presence of wadding inside the wound, the absence of individual pellet holes, and the absence of soot, Dr. Choi concluded the gun was fired at relatively close range, between six inches and two feet away.

The prosecution's firearms expert determined that the shot pellets and wadding removed from Lopez's body were consistent with those inside the unexpended shells found in the shotgun recovered from Williams's backyard. He also determined that the force required to pull the trigger on that shotgun was normal and not excessively heavy or light for a typical shotgun.

b. Defense case

Defendant's friend, Todd Brightmon, described the events leading to the shooting of Lopez, giving testimony mostly consistent with the accounts given by Alvarez. He believed that the shooting was an accident. Brightmon admitted, however, that he had initially told the police that he was not at the scene of the Lopez killing because he did not want to become involved.

61 Cal.4th 743

2. The killing of Martin Campos

a. Prosecution's case

Oscar Ross is the uncle of defendant's wife and a cousin of Brightmon.3 Ross owned a large parcel of property cluttered with junk and several trailers in Riverside County. Because of a prior shooting incident, Ross used a wheelchair. His caretaker, Margie Escalera, lived in a nearby trailer.

190 Cal.Rptr.3d 549

Ross had been friends with Martin Campos and frequently purchased cocaine and marijuana from him. Ross would then resell the cocaine to other sellers. At one point, Ross suspected that Campos had arranged a robbery in which four or five Spanish-speaking men accosted Ross and Escalera at gunpoint, taking approximately $4,500 in cash, a few pounds of marijuana, and some household items.

Ross did not confront Campos with his suspicions, but instead formulated a plan with defendant, who remained at large after the Lopez shooting, and Brightmon to steal cocaine from Campos. Ross planned to offer Campos $22,500 for a kilo of cocaine; upon delivery, he would confront Campos about

353 P.3d 277

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