People v. Johnson

Citation255 Cal.Rptr.3d 393,8 Cal.5th 475,453 P.3d 38
Decision Date25 November 2019
Docket NumberS029551
CourtCalifornia Supreme Court
Parties The PEOPLE, Plaintiff and Respondent, v. Joe Edward JOHNSON, Defendant and Appellant.

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court, Kent Barkhurst and Andrew C. Shear, Deputy State Public Defenders, for Defendant and Appellant.

Brian Stull; Linda Lye ; Lydia Gray; and David Loy, Oxnard, for ACLU, ACLU of Northern California, San Francisco, ACLU of Southern California, Los Angeles, and ACLU of San Diego and Imperial Counties, San Diego, as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Chin, Corrigan, Kruger and Groban concurred.

Justice Liu filed a dissenting opinion.

Justice Cuéllar filed a dissenting opinion in which Justice Liu concurred.

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Joe Edward Johnson of the first degree murder of Aldo Cavallo, and found true the special circumstance allegation that defendant committed the murder while engaged in a home invasion robbery. ( Pen. Code,1 §§ 187, subd. (a) [murder], 190.2, subd. (a)(17)(i) [robbery murder].) The jury also convicted defendant of the forcible rape (§ 261, subd. (a)(2)) and assault with intent to commit murder (former § 217) of Mary S. The jury returned a verdict of death, and the trial court sentenced defendant accordingly.

An automatic appeal followed. (§ 1239, subd. (b).) This court initially held that the trial court had committed reversible error under People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, by admitting into evidence the hypnotically induced identification of defendant by Mary S., and we reversed all convictions and the death sentence on that basis. However, we subsequently granted the People’s petition for rehearing, vacated our earlier decision, and issued an opinion reversing the rape and assault convictions

[255 Cal.Rptr.3d 402]

but affirming the murder conviction and special circumstance finding. ( People v. Johnson (1988) 47 Cal.3d 576, 253 Cal.Rptr. 710, 764 P.2d 1087.) We also reversed the judgment of death due to the trial court’s erroneous jury instruction on the possibility of future commutation under People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430. ( People v. Johnson , at p. 603, 253 Cal.Rptr. 710, 764 P.2d 1087.)

The prosecution retried the penalty phase based on the murder conviction and special circumstance finding. It elected not to retry defendant on the rape and related charges. The first penalty phase retrial ended in a mistrial in 1991. The jury in the second penalty phase retrial returned a death verdict in 1992, and the trial court sentenced defendant to death. This appeal is automatic. We affirm the judgment in its entirety.

I. SUMMARY OF FACTS
A. Prosecution Evidence

The People presented the following evidence during the second penalty phase retrial.

[453 P.3d 46]

1. Robbery and murder of Aldo Cavallo

One evening in late July 1979, defendant removed the screen from an open kitchen window to enter Cavallo’s apartment via the back door. Defendant retrieved a dumbbell from the apartment’s second bedroom, walked to the master bedroom, and then struck a sleeping Cavallo once or twice in the temple. The chain lock on the front door was still in place, suggesting defendant exited the way he had entered.

Police responding to a neighbor’s welfare check found Cavallo’s apartment in shambles: drawers were open with contents dumped on the floor and a television sat on the floor in the hallway. Two guns — one a shotgun and another a shotgun or a rifle — and ammunition were lying on the floor. Cavallo’s body was found on his bed under the covers. His head was covered with blood. On the foot of the bed lay a dumbbell or barbell with traces of blood and hair on it. The cause of death was determined to be a single major blow to the right temporal area, consistent with having been caused by the dumbbell found at the scene.

Investigators found a window screen, apparently taken from the open window, leaning against a patio chair. A latent fingerprint was obtained from the removed kitchen screen, and a fingerprint expert identified the print as belonging to defendant.

Inside the apartment, officers found a receipt for a Bohsei portable television but did not locate the accompanying television. They contacted the manufacturer and received a copy of the warranty paperwork, including the television’s serial number. The officers subsequently conducted a parole search of defendant’s apartment and located the missing television set. Cavallo’s close friend confirmed she had seen the found television in Cavallo’s kitchen.

The prosecution read the testimony of three witnesses from prior trials concerning Cavallo’s ownership of a .22-caliber handgun, including friend Richard Canniff. Cavallo had told Canniff on multiple occasions that he kept a handgun in his nightstand for protection. Officers did not locate a handgun in Cavallo’s apartment, but they found an open box of .22-caliber cartridges on the dining table and a second box in the bedroom closet. Cavallo’s ex-wife, who was available for the second penalty phase retrial, testified that he owned a .22-caliber handgun.

2. Evidence in aggravation

At the second penalty phase retrial, the prosecution presented evidence of defendant’s

[255 Cal.Rptr.3d 403]

rape and assault of Mary S. as evidence in aggravation under section 190.3, factor (b) (presence or absence of criminal activity involving the use, attempted use, or threats to use force or violence). The prosecution also presented evidence that defendant had four prior felony convictions as evidence in aggravation under section 190.3, factor (c) (presence or absence of any prior felony conviction), and that defendant had committed one additional previously uncharged aggravating act of criminal violence under section 190.3, factor (b).

a. Rape and assault on Mary S.

Four days after Cavallo was robbed and murdered, Mary S. attended mass at her church. She stayed behind in her pew after mass ended. Defendant entered the church, approached Mary S., and asked her where the priest’s house was. Defendant started to walk away after Mary S. provided him directions, but turned around and walked back toward her holding a gun. He said, "Keep quiet and you won’t get hurt, and come with me."

Defendant directed Mary S. into a bathroom at the back of the church. He fired his gun into the toilet seat and said he would not hurt her if she remained quiet. He ordered Mary S. to take off her pants and "[g]et on the toilet," and then raped her. After instructing Mary S. to put her pants back on, defendant asked if she had any money. She said she had only change. Defendant took her purse and looked inside. He shoved the purse into Mary S.’s hands and told her to pull her sweater over her head. Defendant struck Mary S. on the head with his gun, which broke into pieces.

After putting her sweater over her head, the next thing Mary S. remembered was "groping" her way out of the back room and

[453 P.3d 47]

into the church. She approached a woman in the pews and asked for help. Mary S. was rushed into surgery to treat a depressed skull fracture

. The neurosurgeon opened her scalp, removed fragments of bone, and sutured a cut on the dura. The surgeon counted 10 individual wounds on Mary S.’s skull caused by both blunt force and sharp force. The wounds were consistent with having been caused by a semiautomatic pistol. Mary S. suffered loss of smell, postoperative vertigo, and amnesia regarding some aspects of the attack.

When Mary S. awoke from surgery, a police detective showed her more than 50 photographs of possible suspects, which included a photograph of defendant. Mary S. also reviewed photographs at her home after she was released from the hospital. She did not recognize her assailant among the photographs.

Doctors collected sexual assault evidence at the request of the police. A criminalist compared the blood types

of Mary S. and defendant and determined they both had type O blood. The vaginal swab contained a mixture of vaginal fluid and semen, both of which were contributed by a donor or donors with type O blood. The criminologist was unable to conclude whether defendant was the source of the semen.

The handgun’s broken pieces, some of which had traces of human blood, were found at the scene. Officers found and lifted at least one latent fingerprint on the gun’s magazine. A fingerprint expert concluded that defendant’s prints matched those found on the magazine.

The criminologist compared the cartridges found in the magazine to the live ammunition recovered from Cavallo’s apartment. He found that all the cartridges had been manufactured by the Federal Cartridge Company with no discernable difference in type, caliber, or overall physical characteristics. The letter

[255 Cal.Rptr.3d 404]

"F" logo on all of the bullets appeared to have been marked by the same tool.

b. Stabbing of Verna O.

In 1978, Verna O. met defendant when she was working as a janitor at a Sonoma hospital. Sometime after that, he moved in with her and they developed a relationship. About two weeks later, Verna O. asked defendant to leave because of his controlling and threatening behavior. He had previously told her that he would decapitate her children and grandchildren if she "did anything against him."

In early December 1978, defendant, Verna O., and her friend, Lisa, were at home. Verna O. and Lisa prepared to leave the house because defendant had previously asked Verna O. not to be home...

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