# People v. Johnson

> California Supreme Court · November 25, 2019 · 8 Cal. 5th 475

URL: https://www.frixlaw.com/law-library/cases/4458742

## Case

- **Court:** California Supreme Court
- **Decided:** November 25, 2019
- **Citations:** 8 Cal. 5th 475; 255 Cal. Rptr. 3d 393; 453 P.3d 38
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 73 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4458742

## Opinion text

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
JOE EDWARD JOHNSON,
Defendant and Appellant.

S029551

Sacramento County Superior Court
58961

November 25, 2019

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.
PEOPLE v. JOHNSON
S029551

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, 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 but affirming the murder conviction and special
circumstance finding. (People v. Johnson (1988) 47 Cal.3d 576.)
We also reversed the judgment of death due to the trial court’s
erroneous jury instruction on the possibility of future

1
All further undesignated statutory references are to the
Penal Code.

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commutation under People v. Ramos (1984) 37 Cal.3d
136. (People v. Johnson, at p. 603.)
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.
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

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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 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,

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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 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,

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

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

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characteristics. The letter “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 that evening, when his friends were coming over.
Defendant screamed at Verna O., ordered her not to leave the
house, and slapped her. He then retrieved a knife from the
bedroom and stabbed Verna O. in the neck and chest. Defendant
told Verna O. that she “would be dead in two minutes.” Verna
O. asked defendant to leave her alone and let her die in peace.
He went back into the bedroom, and Verna O. staggered outside.
Lisa took Verna O. to the hospital, where Verna O. remained for
several days.
Defendant was convicted of assaulting Verna O. with a
deadly weapon (former § 245, subd. (a)(1)).
c. Assault on Thomas Scott
The prosecution read prior testimony from Thomas Scott,
who was deceased at the time of the second penalty phase
retrial. Scott was housed with defendant in a state medical
facility in 1973. One evening, Scott was in bed when defendant
started yelling and called Scott a vulture, accusing him of owing

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defendant a jar of coffee and cigarettes. Defendant hit Scott
with a chair, knocking him unconscious. Scott received stitches
on his chin and suffered permanent nerve damage to his left eye.
Defendant was convicted of assault with a deadly weapon
while confined in state prison (§ 4501).
d. Attack on Officer Laughlin and prison escape
After the assault on Scott, defendant was incarcerated at
a correctional facility in Chino. In April 1974, Correctional
Officer Steven Laughlin supervised defendant and two other
inmates while they worked on landscaping in an area between
the prison building and the fencing surrounding the institution.
One of the inmates struck Laughlin from behind, hitting him in
the head and causing him to fall. As Laughlin tried to stand up,
defendant hit him in the face multiple times and knocked him
back to the ground. The first inmate walked away and remained
seated nearby until the end of the incident, but the second
inmate and defendant dragged Laughlin to the side of the
building, tied him up, gagged him, and continued to hit him.
Laughlin saw defendant and the second inmate run toward the
fence and climb over. Laughlin was taken to a local hospital,
where he received 19 stitches on his face and head.
Defendant was apprehended within 24 hours. He pleaded
guilty to committing an escape with force (§ 4530, subd. (a)), and
was sent to a state hospital for treatment.
e. Attempted murder and witness threat on
Florence M.
In September 1971, defendant moved in with his half-
brother, Priestley M., and Priestley’s wife, Florence M. At the
time, Florence M. was several months pregnant and on
maternity leave.

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

Some months later, Florence M. was at home talking on
the phone when defendant asked her to hang up because he
needed to make a phone call. She responded that he could use
the phone, but she wanted to finish her conversation
first. Defendant approached Florence M. holding a large
kitchen knife and stabbed her numerous times. He also struck
her in the face and head with his fists. Florence M. curled up on
the floor and tried to shield her stomach. Using the knife,
defendant wounded her multiple times on her face and twice on
her legs. Florence M. tried to stop him by grabbing the blade
with her right hand, causing a deep cut that left a significant
scar. She managed to get away and crawl from the bedroom to
the living room before collapsing. Defendant initially ignored
Florence M. but then returned and repeatedly stabbed her in the
back. The knife broke into pieces while defendant was stabbing
her. Defendant left the room to get a new knife. Priestly arrived
home as defendant was returning with a steak knife. Defendant
fled the house when he saw his brother.
Florence M. had surgery to repair the wounds on her back,
hand, forehead, and eyebrow. She spent eight days recovering
in the hospital.
Several days after the attack, a California Highway Patrol
(CHP) officer stopped defendant for a traffic violation and
arrested him for possession of a stolen vehicle. Defendant told
the officer that he thought he killed his pregnant sister-in-law
by stabbing her from the neck down to the stomach. He claimed
that the assault occurred during an argument about her “coming
on to him.”
Defendant was arrested and ultimately pleaded no contest
to attempted murder in exchange for dismissal of the remaining

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charges. At the second penalty retrial, the prosecution
presented evidence that defendant called Florence M. after his
arrest and threatened to harm her if she testified against him.
Florence M. and Priestly visited defendant while he was
receiving mental health treatment to regain competence to
stand trial in an unrelated offense. Defendant did not apologize
to Florence M. or ask about her baby, who had survived the
attack and was a toddler at the time.
B. Defense Evidence
The defense focused on five themes: lingering doubt
regarding defendant’s participation in the homicide; the effects
of defendant’s childhood and background on his behavior; the
failure of the juvenile court system to help defendant during his
youth; defendant’s mental illness and abnormal brain activity;
and defendant’s positive adjustment to prison.
1. Lingering doubt
Defendant presented evidence to show that James Curry,
one of defendant’s coworkers at Sonoma State Hospital, was
implicated in the Cavallo murder based on his connection to the
Bohsei television that was allegedly taken from Cavallo’s house.
Defendant also presented evidence to suggest that Cavallo did
not own a handgun at the time he was murdered.
Robert Ferroggiaro worked at Sonoma State Hospital in
1979 and knew both defendant and Curry. Ferroggiaro testified
that defendant called him from jail to say that he had purchased
a television from Curry and needed it delivered to his
wife. Curry brought the television to Ferroggiaro at work, and
Ferroggiaro delivered it to defendant’s apartment a few hours
before the parole search. Defendant’s wife called Ferroggiaro
after the search to tell him the television had been seized. She

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

told Ferroggiaro that she did not reveal his connection to the
television because she did not want him to get in
trouble. Ferroggiaro contacted law enforcement to explain his
involvement in case his fingerprints were on the television. He
acknowledged on cross-examination that he remained friends
with defendant, and that he had told police officers defendant
was “as sane as anyone.”
Gerald Gourley, a former Federal Cartridge Company
employee and consultant on ammunition and guns, testified
about the process of marking cartridges with a tool called a
bunter. He explained that bunters were made by a tool called a
hob. Gourley further explained that after cartridges are
stamped with the bunter, they are commingled and packed into
boxes. He believed that it was possible to determine whether
two cartridges were struck by a bunter created by the same hob,
and opined that several cartridges depicted in the prosecution’s
exhibits appeared to be struck by a bunter created by the same
hob.
Cavallo’s ex-wife testified that Cavallo had purchased a
.22-caliber revolver, not a semiautomatic handgun, to practice
target shooting with her in the late 1950s. She did not know
whether he kept the revolver after they divorced, or if he had
purchased additional firearms.
2. Family history
Psychologist Addison Somerville testified as an expert
witness concerning the structure, makeup, and migration
histories of African-American families, and regarding the
influence of family on individuals. He interviewed defendant
and three of his 10 siblings to assess certain variables that are
crucial for normal development.

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

Dr. Somerville testified that defendant was born in
Canton, Mississippi, but moved at age two with his family to
Detroit, Michigan to live with McClenton, the oldest of his
siblings. Defendant showed physical signs of malnutrition
between the ages of three and four, but his family did not
recognize the problem. Their stepmother was often gone for long
periods of time, and left defendant and his siblings with minimal
food. McClenton physically punished defendant by stripping
him, beating him with a belt, slapping him, and bouncing his
head on the floor.
Defendant did not know his father. Dr. Somerville opined
that the lack of parental bonding created emotional deprivation,
anxiety, and feelings of rejection. By age six, defendant was
stealing food and hiding it in the basement. He used a collection
container for a disabilities charity to collect money, which he
kept to buy food for his family. At ages eight and nine,
defendant often missed school because he was working odd jobs
to help take care of his sisters. Defendant and his siblings
frequently had only biscuits to eat and were told to drink a lot
of water. Dr. Somerville opined that lack of food and consistent
interactions at school had a tremendous impact on defendant’s
social development. Defendant had his first sexual encounter at
age eight and had engaged in casual relations since then. He
started smoking marijuana at age 10 and started using alcohol
around the same time. Defendant’s sister, Mary Lee, took in
defendant and his siblings but struggled to support them
financially. One of the sisters resorted to prostitution to secure
money for food.
Dr. Somerville concluded that defendant’s “early life
centered around survival, and he seems to have developed a
total lifestyle which is characterized by self-concern.” He opined

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

that defendant was required to learn a variety of defenses which
enabled him to experience minimal guilt or remorse, and that
he lacked the confidence to attempt to change his behavior or
attitudes. Defendant acted in an impulsive and unpredictable
manner, denied his behavior when confronted, and was unable
to form close relationships or trust people. Dr. Somerville
explained that social, cultural, psychological, and economic
factors all contributed to defendant’s criminal behavior and
believed that defendant needed to be confined to protect society.
Dwayne Martin testified about defendant’s time at
Ypsilanti State Hospital (YSH), a psychiatric facility, in the
early 1960s. Defendant entered YSH in 1961 when he was 12
years old. Martin was defendant’s teacher at the hospital.
Martin explained that the children who came to YSH tended to
be either juvenile delinquents, autistic, or suffering from a
psychotic disorder. Martin opined that defendant fell
somewhere between borderline psychotic and juvenile
delinquent. He did not know whether YSH’s psychiatrist
medicated defendant. Defendant was treated for syphilis upon
arrival at YSH, though Martin did not know how he acquired
the disease.
Martin testified that defendant did well at YSH.
Defendant joined the Boy Scouts, took on a leadership role, and
volunteered to help whenever he could. He was respected by his
peers, treated the staff warmly, and became less aggressive
during his stay. The prosecution read prior testimony from
another YSH teacher, Margaret Yates, who observed that
defendant was motivated and worked hard. He seemed
interested in learning new things and his academic performance
improved. His social interaction also improved, and he took an
interest in caring for the classroom hamsters and goldfish.

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

Sometime after he left YSH, defendant was committed to
the Wayne County Youth Home, a juvenile detention facility in
Detroit. Kenneth Peterson, the chief social worker at the home,
testified that defendant had been committed to the state
hospital the previous summer, but faced lengthy delays in
getting transferred. Peterson read from a letter he had sent to
the chief social worker at the hospital, in which he described
defendant as having “constant agitating and irritating
behavior[s]” and being hyperactive, expressing paranoid
thinking, and being involved in delinquent behaviors. Peterson
acknowledged that he had never personally worked with
defendant; rather, he relied on reports from other people when
writing the letter. A psychiatrist who worked with the youth
home also testified that the waiting list for children to receive
mental health treatment was very long and that Caucasian
children were admitted at a higher frequency than African-
American children.
When defendant was 16 years old, he was committed to
the Indiana State Reformatory (the Reformatory) for car theft.
He was initially housed in a minimum security dormitory
outside the institution. He escaped just over two weeks later
and was captured within a day. Defendant was subsequently
transferred to Indiana State Prison after multiple additional
disciplinary reports, including for having a knife in his cell,
assaulting an officer, shouting and yelling on the range, refusing
a direct order, creating a disturbance, and using threatening
and provoking language toward an official. He was released
from the prison in 1971.
A correctional counselor at the Reformatory testified,
describing the institution as a “walled, maximum security
prison.” It housed individuals ranging from 16 to 60 years old

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

who were incarcerated for a variety of felony offenses, including
murder. Discipline for a minor offense sometimes involved
standing barefoot on a painted line for hours. Discipline for
more serious offenses could mean receiving a beating from staff
and then being taken directly to the hospital because they
“needed medical attention by the time they got there.”
3. Evidence of mental disease or defect
Six psychiatrists and neurologists, each of whom had
evaluated defendant at various times in his life, testified at the
second penalty phase retrial.
In June 1974, Patton State Hospital (PSH) psychiatrist
James Ramsaran prepared a report concerning defendant’s
competence to stand trial for forcible assault upon
Laughlin. After briefly interviewing defendant, Dr. Ramsaran
concluded that defendant suffered from paranoid schizophrenia
based on self-reported auditory hallucinations. Dr. Ramsaran
opined that defendant did not fully understand the charges
against him and could not assist in his defense. Defendant was
not particularly cooperative or forthcoming during the
interview, and Dr. Ramsaran did not have access to any
previous records.
James Kerns, another psychiatrist at PSH, evaluated
defendant for admission in July 1974. He diagnosed defendant
with paranoid schizophrenia. Dr. Kerns did not know whether
defendant received antipsychotic medication prior to his
admission, but noted that he received medication for about two
months after his admission.
Psychiatrist and neurologist Richard Finner evaluated
defendant at PSH a few days after Dr. Kerns. Dr. Finner agreed
that defendant suffered from schizophrenia, but opined that it

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presented as undifferentiated rather than paranoid, meaning it
presented as several forms of the disorder. Dr. Finner
acknowledged while testifying that his diagnosis could have
been different if he had had more information at the time of his
evaluation.
Psychologist Grant Hutchinson testified that he had
evaluated defendant in 1980 for evidence of brain injury and to
assess personality and emotional function. Dr. Hutchinson
found defendant to be of average intelligence with normal
memory function. He also found no evidence of brain injury,
despite several incidents of head trauma that defendant
described. He did, however, find an atypical personality profile.
The results of the Minnesota Multiphasic Personality Inventory
revealed that defendant scored high on the scales of
schizophrenia, mania, and paranoia. Dr. Hutchinson opined
that defendant might suffer from paranoid schizophrenia in a
chronic, residual phase, meaning it was inactive at the time of
the evaluation. He explained that stress or going off medication
can cause a person’s schizophrenia to become active.
Neurologist Sidney Kurn evaluated defendant before the
second penalty phase retrial. Dr. Kurn’s neurological
evaluation revealed mild abnormalities: defendant did not feel
sensation, such as a pin prick, on the right side of his body as
well as he did on the left side, and reflexes were mildly
depressed in his legs. Dr. Kurn performed a standard
electroencephalogram (EEG), the results of which appeared
normal. A magnetic resonance imaging (MRI) test revealed
abnormalities in defendant’s basal ganglia, an area of the brain
connected with movement and planning motor activity. A
second abnormality appeared in the pons area of the brain,
which is also connected to motor function. Dr. Kurn performed

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a computerized EEG, which analyzes brain activity in a more
advanced manner than a standard EEG. The computerized
EEG showed unusually high alpha brain-wave activity in
defendant’s frontal lobes, which control decision making,
motivation, and judgment. Dr. Kurn explained that this pattern
of brain-wave activity is typically found in the back of the brain.
The computerized EEG also revealed an unusually slow
response to auditory stimulation. The delayed response could
be the result of epilepsy, damage to the brain, or dysfunction in
the neurotransmitters in the brain. Dr. Kurn explained that the
abnormalities he found suggest that defendant’s nervous system
does not work properly, and therefore functions such as
judgment, foresight, and self-control are probably impaired. On
cross-examination, Dr. Kurn acknowledged that another
neurologist performed a similar evaluation — but not an MRI or
computerized EEG — on defendant in 1980 and found no
evidence of neurological impairment or disorder.
Neuropsychologist Robert Bittle testified as an expert on
brain disease and dysfunction. Dr. Bittle did not meet
defendant personally but reviewed several of his psychological
and neurological reports. Dr. Bittle agreed that the MRI
revealed structural abnormalities in defendant’s basal ganglia
and pons regions, likely due to trauma. He opined that people
with abnormal brain activity in the frontal lobes tend to be
hyperactive, emotionally overresponsive, and have low stress
tolerance. He concluded that defendant suffered from antisocial
personality disorder and paranoid schizophrenia.
4. Behavior in custody
Jerry Enomoto, a previous director of the former
California Department of Corrections (CDC), testified as an

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expert concerning corrections and inmate management.
Enomoto reviewed defendant’s CDC file from 1979 through the
time of trial and found only two disciplinary reports. He
believed that defendant had learned to conform to what was
expected of him in prison.
C. Rebuttal Evidence
1. Lingering doubt
Because Curry was unavailable as a witness, the
prosecution read his prior trial testimony to the jury. Curry had
testified that he and defendant worked together at Sonoma
State Hospital in 1978 and 1979. At the end of July 1979,
defendant asked Curry to hold a television for him. Curry
agreed and took the television to his girlfriend’s house. Curry
identified People’s Exhibit 48, a small Bohsei television set, as
being “similar” to the one he held for defendant. Defendant later
asked Curry to return the television, and had Ferroggiaro
retrieve the television from Curry. Defendant’s wife also called
Curry and asked him to return the television. Curry denied
selling the television to defendant.
2. Evidence of mental disease or defect
Psychiatrist Ronald Byledbal evaluated defendant in July
1979 to determine his competency to stand trial on pending
charges for assaulting Verna O. Defendant explained that he
remembered using cocaine and drinking before he argued with
Verna O., but did not recall stabbing her. Defendant told Dr.
Byledbal that if he had stabbed Verna O., he would have “done
a better job” by getting rid of the weapon and leaving town.
Dr. Byledbal reviewed defendant’s juvenile records,
several psychological and neurological reports, and transcripts
of prior testimony in preparation for his testimony in the trial.

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He concluded that defendant was not a paranoid schizophrenic
but did suffer from antisocial personality disorder. Dr. Byledbal
testified that it was his view that the two PSH doctors who
diagnosed defendant with paranoid schizophrenia were
incorrect because they had no knowledge of defendant’s prior
history. Dr. Byledbal opined that a doctor cannot make an
accurate diagnosis of some patients without knowing any
background information from a source other than the person,
and explained that it is easy to “play paranoid schizophrenic
very well” and fool an evaluator.
Dr. Byledbal testified that defendant’s history was typical
of antisocial personality disorder, the common characteristics of
which are hyperactivity, attempting to manipulate and control
people, lying, and refusing to accept responsibility while
blaming others. He stated that a person with antisocial
personality disorder may have aggressive tendencies, but not all
antisocial people are aggressive. He explained that people with
antisocial personality disorder can become psychotic under the
influence of drugs or alcohol, but he did not believe that was the
case with defendant.
Psychiatrist Donald Apostle also evaluated defendant in
July 1979 to determine his competency to stand trial on pending
charges for assaulting Verna O. Before interviewing defendant,
Dr. Apostle reviewed the sheriff’s report of the incident, Verna
O.’s hospital records, and CDC records. Defendant told Dr.
Apostle that he had no memory of the incident and that “there
is no way that he could have stabbed this particular woman.”
Defendant described two prior incidents in which he had
“blacked out,” including one at PSH and one at home with his
wife.

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Defendant recounted to Dr. Apostle a similar account of
the history described earlier: He moved to Detroit at age two,
was raised by a stepmother and believed his own parents to be
dead, and that he had an older stepbrother and younger
stepsister. He had problems in school and stole things to help
support his stepmother. He was sent to a state hospital in
Michigan at age 10 for armed theft, where he stayed until age
13. He was in and out of juvenile hall until he stole a car and
drove from Michigan to Indiana, where he was arrested and
incarcerated until 1971. Upon release, he was paroled to the
custody of his brother in California, after which he attacked
Florence M. During the interview, defendant told Dr. Apostle,
“I will be honest with you, Donald, I learned how to get around
in prison. I learned how to be a sociopath.” Defendant also said
that he would “never admit this present offense,” because, he
asserted to Dr. Apostle, it was the first time he had “ever fought
a case because he just didn’t remember doing it.”
After reviewing defendant’s neurological and psychiatric
reports, as well as his juvenile court records, Dr. Apostle opined
that defendant did not suffer from paranoid schizophrenia or
any other mental illness. He agreed that defendant suffered
from antisocial personality disorder based on defendant’s long
history of criminal behavior, childhood acting out, lack of taking
responsibility for his actions, belittling of Verna O., and the
claim that he learned how to be a sociopath in prison.
II. PENALTY PHASE ISSUES
A. Denial of Faretta Motion
Defendant contends the trial court committed reversible
error when it denied his request for self-representation under
Faretta v. California (1975) 422 U.S. 806 (Faretta), made two

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

weeks prior to the scheduled trial date. We conclude the trial
court properly denied defendant’s motion as untimely.
1. Procedural history
Defendant’s first penalty phase retrial ended in a mistrial
on February 11, 1991. Four days later, defendant’s attorney,
Sonoma County Deputy Public Defender Elliot Daum, declared
a conflict. Daum expressed uncertainty whether the entire
office had a conflict and asked that the matter be continued. The
trial court found a conflict as to Daum, but not concerning the
entire public defender’s office.
In May 1991, the matter was transferred back to
Sacramento County Superior Court for trial, which was initially
set for September but was later rescheduled for November. At
a hearing in August 1991, the court was informed that Deputy
Public Defender Charles Ogulnik had been assigned as
defendant’s counsel, and that Donald Masuda, a local attorney
who had done some work on the first penalty phase retrial, was
appointed as Keenan counsel. (Keenan v. Superior Court (1982)
31 Cal.3d 424, 428.) In mid-November, defense counsel sought
and obtained a continuance of the trial date to June 22, 1992.
On June 8, 1992, two weeks before trial was scheduled to
commence, defendant filed2 several written motions in propria
persona: to proceed in propia persona under Faretta, to
substitute counsel pursuant to People v. Marsden (1970) 2
Cal.3d 118, for a continuance, and for discovery of documents in

2
Defendant had one week earlier sent these motions to
Masuda, asking him to file the pleadings for him because
Masuda was “close to the court and [i]t would take [defendant]
at least two weeks to get them certified and then mailed to the
court.”

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

a California State Bar disciplinary proceeding relating to
Ogulnik. The motion for a continuance stated that “[d]efendant
has removed counsel of record and needs considerable time to
rev[ie]w documents, investigate possible defense strateg[ie]s,
interv[ie]w attorneys for advisory counsel pos[i]tion, as well as
others that will [be] part of the defense team[,]” and “[t]o deal
with any and all matters p[er]taining to putting forth a
creditable [sic] defense.” The motion also stated that “defendant
will require a substan[ti]al amount of time to rev[ie]w
documents to determine what creditable [sic] defense could be
fastened from it.”
The prosecution opposed defendant’s Faretta motion,
arguing it was untimely. The prosecution also opposed the
motion to continue.
At a pretrial hearing on June 12, trial counsel indicated
that they were ready to proceed with trial as scheduled. On
June 22, a trial judge was assigned to the case, and the parties
agreed to wait to argue defendant’s motions until they were
before the assigned judge. On July 6, the assigned trial judge
heard defendant’s Marsden motion in camera, which also
included discussion relevant to the Faretta motion. Defendant
explained that Ogulnik had promised not to contact family
members without his permission, but did so anyway and then
lied to him about it. He also felt there were better defense
strategies than the “sympathy” defense Ogulnik had planned,
and instead preferred to attack the guilt phase evidence.
Defendant agreed that Ogulnik had recently put a great deal of
effort into investigating the guilt phase evidence. He said that
he and Ogulnik had a personality conflict at the time he filed
the motion, but the conflict had since been

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

resolved. Nonetheless, he asserted, he still wanted to represent
himself.
The court resumed the Marsden hearing the following
day. The court asked defendant to explain his statements that
he had not been permitted to assist in his defense, and had not
been provided with copies of materials that the defense had
obtained or gathered. Defendant replied that he believed the
defense evidence to date was “not as solid” as the prosecution’s,
and that “certain investigations or certain research” was either
not being done or was being done late in the process. Defendant
acknowledged his defense team’s investigative efforts had
increased substantially since the motion had been filed and a
little before then, too, but he believed the investigation “should
have been done several months earlier.” He also acknowledged
that his attorneys were keeping him better informed than they
had previously been.
Ogulnik explained that there might have been an
“innocent misunderstanding on [his] part” as to whether he had
defendant’s permission to contact family members. Ogulnik
knew that defendant had expressed to his previous counsel
similar concerns regarding contacting family, but Ogulnik
believed that he and defendant had resolved that with a meeting
“early on” in the representation. Ogulnik’s investigator, Gary
Dixon, shared Ogulnik’s understanding of the situation. When
the court asked Ogulnik about defendant’s claim that the team
got a late start with the investigation, he explained that given
the age of the case and the prior reversals, the team decided to
reinvestigate and “take nothing for granted.” Ogulnik explained
that locating witnesses took a long time, and he understood why,
to defendant, it appeared that they did not investigate matters
such as lingering doubt, bias, or prejudice. He also explained

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

that he was obligated under the law to investigate the possibility
of a “psych defense,” but defendant found it to be unnecessary
and strongly objected.
Defendant told the court, “I know that right now what I
know is to be the best defense for me, and what is not going to
work is my major concern. I discussed it with Mr. Ogulnik. He
wants to go this way. I want to go this way. He wants to
investigate this. I don’t think it’s worth anything. . . . It’s my
life, see. . . . It’s my decision as to how my life should be
presented to this Court or to a jury, see. Because all good
intentions, I know he probably feel bad if I die, but badness ain’t
going to save me.” He acknowledged that tactical disagreements
as to how the case should be tried served as the basis for his
motion. The court denied defendant’s Marsden motion.
The court addressed defendant’s Faretta motion in open
court on July 9, one month after defendant had filed it. The
court noted defendant’s simultaneous request for a continuance
and asked how much time he would need to prepare for trial.
Defendant responded that it would be premature for him to give
a specific time period. Masuda suggested that defendant would
need about a year to prepare, and the court agreed that “many
months at the minimum would be required” for defendant to
prepare to represent himself. The court expressed concern
about the timeliness of the motion and requested the district
attorney leave the room so it could continue the hearing in
camera.
The court asked defendant if he had considered filing a
Marsden or Faretta motion prior to doing so in early June.
Defendant explained that he had considered such filings the
previous September, but decided not to do so because he and his

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

attorneys had resolved their differences and “worked out a
foundation from which we would confer and how we would from
that point investigate and search out new avenues of approach
to the case.” He further explained that his previous appellate
attorney knew he was having problems with Ogulnik and Dixon
but encouraged him to “sit back and be a lot more patient, and
see how things develop” with the investigation and
communications.
Defendant explained that he again considered filing a
Faretta motion in January or February 1992, but Masuda and
Sonoma County Public Defender Marteen Miller had
encouraged him to be patient and wait a few months to see if
matters improved. Defendant stated that “nothing [has]
changed to the point I felt that I would be comfortable, and I still
felt best that I could represent myself, so I filed it. That was the
reason for the delay both times. It was good advice from good
attorneys, and I waited.” He continued, “The only reason I
delayed . . . was as a result of people asking me because they felt
that I was being somewhat over judgmental as to Mr. Ogulnik
and everybody else involved in [the] case.”
The court stated that it needed more time to review
relevant law and continued the hearing until mid-July. The
court held another in camera hearing to ask defendant more
questions regarding both his Marsden and Faretta motions. In
his Faretta motion, defendant had alleged that counsel refused
his request to investigate “issues of grave importance” and
“wasted over five months of valuable time before starting any
investigation into any matter of concern to him.” The court
asked defendant to elaborate on his allegations. Defendant
explained that another person had a gun similar to the one
found at the church a few days after the incident, and he

24
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

believed that person’s gun could have been the weapon used to
assault Mary S. His previous attorneys did not undertake such
an investigation. He asked Ogulnik and Dixon to review the
matter; they completed the investigation three weeks prior,
although “to a degree unsatisfactory” to defendant. He also
requested DNA analysis be done on the blood found on the gun
located at the church, but was told “it was too little to do a
special analysis.” He additionally believed that counsel could
have worked harder to locate witnesses. Defendant
acknowledged that he and his attorneys had different
viewpoints concerning what was important to investigate, but
he believed that Ogulnik had agreed to also focus on what was
important to defendant. The court reaffirmed its denial of the
Marsden motion but did not decide the Faretta motion.
On July 21, 1992, the court denied defendant’s Faretta
motion as untimely. The court acknowledged that most case law
involving untimely Faretta motions involved motions made the
night before or the day of trial, but cited People v. Ruiz (1983)
142 Cal.App.3d 780 as involving an untimely motion made six
days before trial. The court explained that when assessing
timeliness, it needed to consider the periods of time preceding
the trial during which defendant had the opportunity or ability
to evaluate his dissatisfaction with counsel. The court noted
that Ogulnik had represented defendant since July 1991 and
found “no persuasive reason why” defendant had not moved
“substantially earlier in the proceedings” to represent himself.
The court further noted that defendant’s complaints against
Ogulnik were “in many rather striking ways similar to the
objections he had against the earlier attorney, Mr. Daum.”
Given that defendant could have filed the motions sooner, the
court stated that “the strong suspicion arises that the whole

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

process, at least, has an element in it of interrupting the orderly
processes and bringing about delays.” It also reiterated “that a
substantially significant time period would be required” for
defendant to prepare for trial, resulting in a disruption of trial
for an extended period. The trial court found, therefore, that the
Faretta motion was untimely.
The court went on to decide whether to exercise its
discretion to grant defendant’s untimely motion using the
factors set forth in People v. Windham (1977) 19 Cal.3d 121, 127
(Windham) (trial court has discretion to grant or deny untimely
Faretta motion based on quality of counsel’s representation,
defendant’s prior proclivity to attempt to substitute counsel,
reasons for defendant’s request, anticipated length and stage of
proceedings, and disruption and delay that might reasonably be
expected to follow granting Faretta motion). The court observed
that Ogulnik and Masuda were qualified and experienced
attorneys, and that their representation of defendant was
“satisfactory and of good quality.” It noted that defendant had
a prior history of substituting counsel; he had filed Marsden
motions against Daum in January and April 1991. The court
reiterated that it found defendant’s reasons for his prior
Marsden motions to be unpersuasive and his criticisms of
counsel unjustified. Based on these factors, the court declined
to grant the untimely motion.
Regarding the length and stage of proceedings, the court
stated that preparation for the case, involving reviewing
transcripts of two trials and voluminous police reports, would
take a long time. It stated: “So, it’s a lengthy proceeding, and
here we are on the eve of trial with a motion to first replace
counsel and then to represent himself, with no persuasive
explanation given for this delayed filing. As I mention, many of

26
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

the matters complained of have pre-existed.” The court noted
that the issues between defendant and counsel had existed over
a period of months and were “not new events that might explain
why someone has felt the need to make this motion as to what
amounts to about the eleventh hour.” Finally, the court noted
that the disruption and delay that might reasonably be expected
to follow would be “considerable” and “certainly would interrupt
any kind of orderly litigation of this case.” It acknowledged that
defendant was not responsible for the ten-year hiatus while the
case was on appeal, but stated that nonetheless “this case is
vulnerable in the sense that years are passing affecting the
availability of witnesses and the recall of witnesses and if this
case has to go off and start over again for the defendant to
prepare himself, the delay and the loss of witnesses could well
continue. So, the People run the risks of being significantly
prejudiced if this case is continued for a significant period of
time.”
After additional comments from defendant, the court
asked Masuda to address on the record defendant’s allegations
that he delayed filing a Faretta waiver because Masuda had
asked him to wait. During an in camera hearing, Masuda
explained that defendant wrote him a series of letters
expressing concern about Ogulnik’s representation. Masuda
encouraged defendant to wait because every attorney prepares
for trial differently “and so he shouldn’t be judgmental. He
should wait and see to see what kind of results would come up
and see what efforts were being done.” Masuda said he made
“sincere efforts” to calm defendant down and assure him that
“everything was being done that should have been done.” He
agreed that defendant’s relationship with Ogulnik had had its

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

ups and downs, but believed it was better than defendant’s
relationship with his previous attorney, Daum.
Defendant explained that in April he and Ogulnik had “hit
a snag that wasn’t going to be moved because he had his way of
wanting to do it. I had my way of feeling how I think it should
be done, and we couldn’t get along.” Defendant had written a
letter to Public Defender Miller expressing his dissatisfaction,
and Miller encouraged defendant to wait so that Miller could try
to “work it out.” Masuda and defendant agreed that they never
had a conflict between themselves.
Voir dire commenced on July 28. Shortly after jury
selection began, the court acknowledged that it had received
additional documentation related to defendant’s Faretta motion,
including correspondence regarding a State Bar disciplinary
proceeding involving Ogulnik. The court stated, “I do notice,
though, that this is an issue you did not really raise when you
made your [p]ro [p]er motion, that his problems with the State
Bar affected his competence to represent you in this case. Is
that — am I correct in that observation or am — I want to give
you an opportunity to comment on what struck me.” Defendant
replied, “I have no further comment about it. It was simply to
assert to the [c]ourt. There is no comment needed.” The court
stated that the documents did not cause it to reconsider its
denial of defendant’s untimely Faretta motion.
2. Analysis
In Faretta, the United States Supreme Court made clear
that a criminal defendant has a federal constitutional right to
represent himself if he voluntarily and intelligently so chooses.
(Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must
grant a defendant’s request for self-representation if the request

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

is timely and unequivocal, and the defendant makes his request
voluntarily, knowingly, and intelligently. (Windham, supra, 19
Cal.3d at pp. 127-128.) If a self-representation motion is
untimely, however, it is “within the sound discretion of the trial
court to determine whether such a defendant may dismiss
counsel and proceed pro se.” (Id. at p. 124.)
We have long held that a Faretta motion is timely if it is
made “within a reasonable time prior to the commencement of
trial.” (Windham, supra, 19 Cal.3d at p. 128.) In Windham, we
explained that the “reasonable time” requirement “must not be
used as a means of limiting a defendant’s constitutional right of
self-representation,” but rather to prevent the defendant from
“misus[ing] the Faretta mandate as a means to unjustifiably
delay a scheduled trial or to obstruct the orderly administration
of justice.” (Id. at p. 128, fn. 5.) The high court has
acknowledged that most lower courts require a defendant to
make a self-representation motion “in a timely manner,” which
reflects that “the government’s interest in ensuring the integrity
and efficiency of the trial at times outweighs the defendant’s
interest in acting as his own lawyer.” (Martinez v. Court of
Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)
“[W]e have held on numerous occasions that Faretta
motions made on the eve of trial are untimely.” (People v. Lynch
(2010) 50 Cal.4th 693, 722 (Lynch), abrogated on other grounds
by People v. McKinnon (2011) 52 Cal.4th 610; id. at pp. 722-723,
citing People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta
motion made two days before trial was made “on the eve of trial”
and was untimely], People v. Valdez (2004) 32 Cal.4th 73, 102
[Faretta motion made “moments before jury selection was set to
begin” deemed untimely], People v. Horton (1995) 11 Cal.4th
1068, 1110 [Faretta motion made on the date scheduled for trial

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

deemed untimely], and People v. Clark (1992) 3 Cal.4th 41, 99-
100 [Faretta motion made several days after case had been
continued day to day “in the expectation that the motions would
be concluded and jury selection set to begin at any time,” deemed
“in effect the eve of trial” and untimely].) We have also held that
Faretta motions made long before trial are timely. (Lynch, at p.
723, citing People v. Halvorsen (2007) 42 Cal.4th 379, 434
[Faretta motion made seven months before penalty retrial jury
selection commenced was timely]; People v. Stanley (2006) 39
Cal.4th 913, 932 [Faretta motion made one year before the
preliminary hearing and nearly two years before trial was
timely].) “[O]ur refusal to identify a single point in time at
which a self-representation motion filed before trial is untimely
indicates that outside these two extreme time periods, pertinent
considerations may extend beyond a mere counting of the days
between the motion and the scheduled trial date.” (Lynch, at
p. 723.)
In Lynch, we pointed out that “in the related context of the
Sixth Amendment right to select counsel of one’s choice, which
is also subject to automatic reversal if erroneously denied, the
high court has ‘recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of
fairness [citation], and against the demands of its calendar.’ ”
(Lynch, supra, 50 Cal.4th at p. 725, citing United States v.
Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We observed that “a
trial court may ‘make scheduling and other decisions that
effectively exclude a defendant’s first choice of counsel’ ” (Lynch,
at p. 725, citing Gonzalez-Lopez, at p. 152), and “perceive[d] no
principled basis on which to deny a trial court the opportunity
to similarly consider the needs of fairness and the demands of
its calendar in ruling on a request for self-representation, or to

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

accord the defendant seeking self-representation any greater
liberty to do so than the defendant seeking to select retained
counsel.” (Lynch, at p. 725.)
Relying on the federal high court’s cases as well as our
own, we concluded that a trial court may consider the totality of
the circumstances in determining whether a defendant’s
pretrial Faretta motion is timely. (Lynch, supra, 50 Cal.4th at
p. 726.) We held that a trial court may properly consider “not
only the time between the motion and the scheduled trial date,
but also such factors as whether trial counsel is ready to proceed
to trial, the number of witnesses and the reluctance or
availability of crucial trial witnesses, the complexity of the case,
any ongoing pretrial proceedings, and whether the defendant
had earlier opportunities to assert his right of self-
representation.” (Ibid.)
In Lynch, the trial court denied as untimely defendant’s
two Faretta motions, the first filed approximately five weeks
before trial was scheduled to begin,3 the second motion three
weeks later. (Lynch, supra, 50 Cal.4th at p. 714.) Based upon
the totality of the circumstances, we concluded that the trial
court’s denial of the defendant’s Faretta motions was proper.
(Id. at p. 726.) We observed that this was a complicated case
involving three counts of murder and two counts of attempted
murder, each involving a separate incident and carrying with it
a possible death sentence. (Ibid.) We also noted that discovery
was voluminous, and trial preparation complex. (Ibid.) The
prosecution anticipated calling at least 65 witnesses at the guilt

3
Pretrial motions ultimately commenced eleven days after
the scheduled trial date in Lynch. (Lynch, supra, 50 Cal.4th at
p. 721.)

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

phase, many of whom were elderly. (Id. at pp. 726-727.) We
also pointed out that at the time of the Faretta hearing, held
approximately two weeks from the expected start date of
pretrial motions, defense counsel had indicated that they were
ready for trial. (Ibid.) We remarked that the case, which had
endured significant delay, was finally nearing resolution, and
that the defendant admitted that he would need additional time
to investigate and prepare his case and could not estimate how
much additional time he would require until he reviewed the
discovery and other materials. (Id. at pp. 727-728.)
We did not articulate in Lynch what standard a reviewing
court should apply in determining whether a defendant’s
request for self-representation is timely. Defendant urges us to
apply de novo review in deciding whether his Faretta motion
was timely filed. We need not decide whether de novo review or
a more deferential standard is appropriate, however, because
defendant’s claim fails under either standard.
Based on our independent review of the record and after
taking into consideration the totality of the circumstances under
Lynch, we conclude the trial court properly denied defendant’s
Faretta motion as untimely. As noted above, defendant filed his
Faretta motion two weeks before the scheduled trial date.
Defendant indicated in his accompanying motion for a
continuance that he would “need[] considerable time” to review
documents, investigate possible defense strategies, and prepare
for trial. Defense counsel estimated defendant would need a
year to be trial ready and the court agreed that “many months
at a minimum” would be necessary based on the record.
Meanwhile, trial counsel advised the court on June 12 that they
were ready to proceed with trial as scheduled.

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Moreover, defendant had numerous opportunities to
assert his right of self-representation earlier.4 Ogulnik had
been appointed approximately eleven months prior to defendant
filing his Faretta motion. The trial court reasonably concluded
it had a “strong suspicion,” given the amount of time defendant
and Ogulnik had worked together and the similarities in
defendant’s complaint against Ogulnik and his prior attorney,
that defendant brought the Faretta motion with the purpose of
interrupting the process and creating delay. (People v. Marshall
(1997) 15 Cal.4th 1, 26 [Faretta motion may be denied based on
evidence that defendant’s purpose was to delay proceedings].)
In addition, because the case had been on appeal and the
first penalty retrial had ended in a mistrial, more than 13 years
had elapsed between the crimes against Cavallo and the second
penalty phrase retrial. The second penalty retrial, which
carried a possible death sentence, was inherently complex,
involving evidence of the circumstances of the charged offenses
as well as two uncharged acts of violence and four separate prior
felony convictions. The prosecution anticipated calling 20
witnesses and observed that several were no longer available.
As the trial court noted, the availability of witnesses, as well as
witness recall, had declined and would continue to do so should
there be additional delay. Although the lengthy delay in this
case cannot be attributed to defendant, “he did not thereby

4
Although defendant seems to imply that his decision to
represent himself was based, in part, on his discovery of the
State Bar disciplinary proceeding against Ogulnik, defendant
did not include this information in his Faretta motion or raise it
during the hearings on the motion, and, as observed earlier, he
declined the court’s invitation to elaborate on why he failed to
do so.

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escape any responsibility for timely invoking his right to self-
representation.” (Lynch, supra, 50 Cal.4th at p. 727.)
Defendant asserts that most federal courts have concluded
that a Faretta motion is timely as a matter of law if it is made
before trial, unless the motion is made for the purpose of delay.
(See, e.g., Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784;
U.S. v. Lawrence (4th Cir. 1979) 605 F.2d 1321, 1325; Chapman
v. U.S. (5th Cir. 1977) 553 F.2d 886, 894.) Although we
recognize that some federal appellate decisions have adopted a
different approach, we see no compelling reason to reconsider
the standard set forth in Lynch at this time. Indeed, in Lynch
we considered and rejected the idea of a bright-line rule,
explaining that “nothing in Faretta or its progeny either
expressly or implicitly precludes consideration of factors other
than the number of weeks between the self-representation
motion and the trial in determining timeliness . . . .” (Lynch,
supra, 50 Cal.4th at p. 725.) We further note that sister states
have also adopted a timeliness test consistent with Lynch. (See,
e.g., Lyons v. State (Nev. 1990) 796 P.2d 210, 214 [if Faretta
request can be granted without need for a continuance, request
should be granted; otherwise, request may be denied as
untimely if there is no reasonable cause to justify the late
request]; Guerrina v. State (Nev. 2018) 419 P.3d 705, 709,
quoting Lynch, supra, 50 Cal.4th at p. 724 [Faretta “ ‘nowhere
announced a rigid formula for determining timeliness without
regard to the circumstances of the particular case’ ”].)
We therefore conclude the trial court did not err when it
determined that defendant’s Faretta motion was untimely and
denied it on that basis.

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

B. Batson/Wheeler Motion
Defendant contends the trial court erred when it found he
had not established a prima facie case of discrimination after
the prosecutor used three of his first 15 peremptory challenges
to strike three of the five African-American jurors who had been
seated. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson);
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We
conclude there was no error.
1. Procedural background
Before conducting individual voir dire, the trial court
instructed all prospective jurors to complete an eleven-page
written questionnaire and, if applicable, a hardship form.
Following hardship excusals, prospective jurors returned for
individual questioning over the course of several days.
Prior to preliminary voir dire of prospective juror Kenneth
M., who was African-American, the prosecutor revealed that he
had run a computer criminal history check “on some of the
jurors” and discovered that Kenneth M. had two misdemeanor
convictions. The prosecutor observed that Kenneth M. had
checked “no” on his jury questionnaire in response to the
question asking if he had ever been accused of or arrested for a
crime. The prosecutor requested the court to examine the juror
for misconduct and dismiss him for lying. Defense counsel
relayed that he had previously asked the prosecutor if he had
checked all the jurors, and the prosecutor had said no. Defense
counsel wondered whether the prosecutor had run a criminal
record check on only African-American prospective jurors. The
prosecutor responded, “I don’t think I am obliged to answer that
inquiry.” Defense counsel said, “I am just kind of curious why
he would run a check on Kenneth [M.] when his questionnaire,

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itself, doesn’t indicate that he would be lying or lead one to
suspect that maybe he’s misinforming the Court or us with
respect to his background. I just find it very curious.”
The court agreed that it could not compel the prosecutor
to explain his reasoning, but stated that the prosecutor’s state
of mind would be relevant if a Batson/Wheeler challenge arose
later. When defense counsel explained that the defense did not
have access to the computer data that the prosecutor had, the
prosecutor replied that he would be happy to check on anybody
the defense might request. Defense counsel replied, “[Y]our
Honor, our request would be that we just have the information
as to all the jurors that [the prosecutor] ran . . . and the
information that he obtained.” The prosecutor explained that
he did not have time to check on every juror, but rather, was
“going to check certain jurors when they spark [his] interest.”
He reiterated that if a juror sparked the defense’s interest, he
would run a check on the requested juror.
Defense counsel stated that “a Wheeler motion is always
something that could occur in any case of this nature, and I
think we should always be aware of what’s going on and what’s
happening with respect to any potential Wheeler motion that
may be made, and I don’t see why [the prosecutor] would object
to informing us as to which jurors he ran a check on so that we
have the same information with respect to those jurors.” The
prosecutor responded that “a Wheeler motion requires that there
be made some kind of prima facie case. That’s why, frankly, for
the record, I am objecting to disclosing why I checked certain
jurors and which ones I checked because they have to make a
prima facie case. The fact that I checked one and found a record
doesn’t make a prima facie case.” The trial court agreed with

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the prosecutor, stating, “That’s what I perceive also, and that’s
why I haven’t agreed to order such disclosure.” It ultimately
directed the prosecutor to disclose “any juror that he ran and in
running gained some information that has not been clearly
disclosed by that juror in the questionnaire or here in court.” It
also permitted defense counsel to submit particular names in a
sealed envelope for background checks. After both sides
questioned Kenneth M., the prosecutor withdrew his request to
dismiss him from the jury for misconduct and both sides passed
for cause.
Jury selection began the following afternoon. The jury
pool consisted of 56 people, seven of whom identified themselves
on the jury questionnaire as African-American or Black, the
same race as defendant.
After the prosecutor exercised his initial peremptory
strike, the first African-American juror, Danella D., was seated.
The prosecutor exercised three peremptory challenges and then
passed. The defense exercised two challenges, and the
prosecutor struck another juror. After the defense used another
peremptory challenge, the second African-American juror,
Hazel D., was seated. The prosecution again accepted the panel
as constituted. After each side exercised additional challenges,
the third African-American juror, Lois G., was seated. Lois G.
was absent from proceedings that day “by understanding and
agreement,” and still available for jury duty. The defense
passed, and the prosecutor used his tenth peremptory challenge
to strike Lois G. Defense counsel then raised a Batson/Wheeler
motion. The court denied the motion, noting that the prosecutor
had exercised one of its 10 peremptory challenges against an
African-American juror, and two African-American jurors were
still seated in the box.

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Voir dire continued, and the prosecutor exercised two
more peremptory challenges. The fourth African-American
prospective juror, Sharon H., was seated. After the defense
passed, the prosecutor exercised his thirteenth challenge to
excuse Sharon H. The defense exercised another challenge and
the prosecution passed. Both sides exercised additional
challenges before Shanna H., the fifth African-American
prospective juror was seated. The prosecutor used his fifteenth
challenge to excuse Shanna H.
The defense made a second Batson/Wheeler motion,
arguing that the prosecutor had excused three African-
American jurors, each of whom had indicated on her
questionnaires an ability to vote for the death penalty. The
prosecutor acknowledged that he had excused three African-
American jurors but argued that he “left two. I don’t think that
quite reaches a prima facie case yet.” The court ultimately
agreed, concluding, “I am not persuaded that three out of five
with two remaining in the jury box being passed, that is a
statistically anything event showing a pattern of intent to
exclude or minimize” the presence of African-American jurors.
When voir dire resumed, each side exercised one more
peremptory challenge and then passed. Before the court could
swear in the panel, a prospective juror informed the court that
she was “quite uncomfortable” with the responsibility of having
to decide whether a person should live or die. After the court
questioned the juror, the parties agreed to reopen jury selection
and allow the prosecutor to exercise a peremptory challenge to
strike the juror. The defense exercised four remaining
peremptory challenges before Wayde B., the sixth African-
American prospective juror on the panel, was seated. Both sides
accepted the jury as constituted. At the close of regular jury

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selection, 48 prospective jurors had appeared in the box. The
prosecution had exercised 3 of 17 strikes on African-American
jurors. Three of the 12 seated jurors were African-American.
The court then called three alternate jurors to be seated,
including Kenneth M. The prosecutor used his second of three
additional peremptory challenges to remove Kenneth M. The
defense raised its third Batson/Wheeler motion, arguing that
Kenneth M. was excluded on the basis of race and “based on the
fact that the District Attorney used information available only
to him to check the background on [Kenneth M.]” The trial court
denied the motion. It stated that the prosecutor had “disclosed
the information discovered prior to voir dire, so that adequate
and thorough voir dire could be afforded to all sides,” and found
no fault in the prosecution “conducting his limited investigation
of jurors and disclosing the outcome of it.” The court also
determined that the statistics did not support a prima facie case
of discrimination.
At the close of alternate jury selection, 54 of the 56
prospective jurors had appeared in the box. The prosecution had
exercised a total of 4 of 19 strikes on African-American jurors.
The seated jury consisted of three African-American jurors,
seven Caucasian jurors, one Hispanic juror, and one mixed-race
juror.
2. Analysis
“Both the United States and California Constitutions
prohibit discriminatory use of peremptory strikes.” (People v.
Reed (2018) 4 Cal.5th 989, 999 (Reed).) To assess whether such
prohibited discrimination has occurred, our Batson/Wheeler
inquiry follows three distinct steps. (Ibid.) “First, the defendant
must make out a prima facie case ‘by showing that the totality

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of the relevant facts gives rise to an inference of discriminatory
purpose.’ [Citations.] Second, once the defendant has made out
a prima facie case, the ‘burden shifts to the State to explain
adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes. [Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168, fn. omitted (Johnson).)
The trial court denied each of defendant’s Batson/Wheeler
motions at the first stage of the inquiry after ruling defendant
failed to establish a prima facie case of discriminatory intent.
Prior to Johnson, the California standard at this step “was to
show that it was ‘more likely than not’ that purposeful
discrimination had occurred.” (People v. Carasi (2008) 44
Cal.4th 1263, 1293.) However, in Johnson¸ the United States
Supreme Court rejected that analysis as too stringent under the
federal Constitution and held that “a prima facie burden is
simply to ‘produc[e] evidence sufficient to permit the trial judge
to draw an inference’ of discrimination.” (Ibid.)
We review the trial court’s ruling “independently where,
as here, the trial predated Johnson and it is not clear from the
record whether the trial court analyzed the
Batson/Wheeler motion with this low threshold in mind.”
(People v. Scott (2015) 61 Cal.4th 363, 384.) We examine the
entire record when conducting our review. (Reed, supra, 4
Cal.5th at p. 999.) Certain facts, however, are considered
especially relevant. “These include whether a party has struck
most or all of the members of the venire from an
identified group, whether a party has used a disproportionate
number of strikes against members of that group, whether the

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PEOPLE v. JOHNSON
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party has engaged those prospective jurors in only desultory voir
dire, whether the defendant is a member of that group, and
whether the victim is a member of the group to which a majority
of remaining jurors belong. [Citation.] We may also consider
nondiscriminatory reasons for the peremptory strike that
‘necessarily dispel any inference of bias,’ so long as those reasons
are apparent from and clearly established in the record.” (Id. at
pp. 999-1000.)
Defendant challenges the court’s denial of his second
Batson/Wheeler motion. He asserts ample evidence supports a
prima facie case. Defendant argues that at the time he made
the second motion, the prosecutor had struck three of five
African-American jurors and had established a pattern of
striking an African-American juror whenever there were more
than two on the panel. Defendant also asserts that the
prosecutor appeared to conduct a criminal background check on
only one potential juror: Kenneth M., an African-American.
Defendant further notes that he is African-American and at
least two of the victims (Cavallo and Mary S.) were Caucasian,
and the struck African-American jurors all possessed traits the
prosecution could have viewed favorably. We conclude, based on
the entire record, that defendant has not shown that the totality
of relevant facts creates an inference of discriminatory intent.
Defendant first contends the prosecutor’s “strike rate”
establishes a prima facie case of discrimination because he
exercised a disproportionate number of peremptory challenges
against African-American jurors. Defendant points out that at
the time of the second Batson/Wheeler motion, the prosecutor
had used 20 percent of his strikes on African-American jurors —
3 of 15 — despite the proportion of African-American jurors on
the panel being 12 percent — 5 of 41. He further notes that the

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prosecutor’s excusal rate for African-American jurors was
60 percent — 3 of 5 — whereas his exclusion rate for the rest of
the panel was 34 percent — 12 of 35.
Considered in the context of the entire jury selection
process, the prosecutor’s strikes do not support an inference of
discrimination. (Reed, supra, 4 Cal.5th at p. 1000 [strikes made
after the Batson/Wheeler challenge are considered in assessing
discriminatory intent].) The prosecutor exercised 17 strikes
during the selection of regular jurors, and two more while
selecting alternates. Three of the prosecutor’s 17 strikes during
regular jury selection (18 percent) — and 4 of 19 overall
(21 percent) — targeted African-American jurors. These figures
“barely” exceed the 13 percent ratio (7 of 54) of African-
American jurors in the venire, and do not by themselves suggest
an inference of discrimination. (Ibid. [finding 46 percent strike
rate of African-Americans compared to 34 percent of African-
American jurors in the venire to be insignificant].)
Nor does the exclusion rate of African-American jurors
support an inference of discriminatory purpose. At the close of
regular jury selection, the prosecutor had struck 3 of 6 African-
American jurors — an excusal rate of 50 percent — and had
struck 14 of 42 non-African-American jurors — an excusal rate
of 33 percent. At the close of alternate jury selection, the
prosecutor had struck 4 of 7 African-American jurors — an
excusal rate of 57 percent — and had struck 15 of 47 non-
African-American jurors — an excusal rate of 32 percent.
Although the prosecutor excused a higher percentage of African-
American jurors, the numbers are subject to a variety of
interpretations. (See, e.g., People v. Jones (2011) 51 Cal.4th 346,
362 [peremptory challenges of 60 percent of African-American
jurors “not particularly troubling” when strike rate of African-

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Americans was only slightly higher than their percentage on the
jury].) We note, for example, that the numbers could also
indicate that African-American jurors were overrepresented in
the box compared to their representation in the candidate pool:
constituting 25 percent of the seated panel (3 of 12) as compared
to 13 percent of the available pool (7 of 54). (See People v.
Hartsch (2010) 49 Cal.4th 472, 487-488 (Hartsch).) In other
words, African-American representation on the seated jury was
almost twice that reflected in the eligible jury pool. In any
event, in light of the small sample size, we assign no great
weight to the prosecutor’s excusal rate. (People v. Harris (2013)
57 Cal.4th 804, 835.)
Moreover, the prosecutor repeatedly accepted the jury
when two African-American jurors were on the panel, and
ultimately accepted a panel with three African-American jurors.
“While acceptance of one or more black jurors by the prosecution
does not necessarily settle all questions about how the
prosecution used its peremptory challenges, these facts
nonetheless help lessen the strength of any inference of
discrimination that the pattern of the prosecutor’s strikes might
otherwise imply.” (Reed, supra, 4 Cal.5th at p. 1000; see also
People v. Clark (2011) 52 Cal.4th 856, 906.) We have previously
held that the prosecutor’s acceptance of a jury panel including
multiple African-American prospective jurors, “while not
conclusive, was ‘an indication of the prosecutor’s good faith in
exercising his peremptories, and . . . an appropriate factor for
the trial judge to consider in ruling on a Wheeler objection . . . .’ ”
(Hartsch, supra, 49 Cal.4th at p. 487.) Viewed in its overall
context, the pattern of strikes does not suggest an inference of
discrimination.

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Defendant also asserts the prosecutor’s unjustified
investigation into prospective juror Kenneth M. raises a
suspicion that he was attempting to limit the participation of
African-American jurors, arguing that the prosecutor appeared
to conduct a criminal background check on only Kenneth M. The
prosecutor’s responses to the court, however, suggest that he did
conduct a criminal history check on additional jurors. Although
the prosecutor did not disclose which prospective jurors he
investigated further, he told the court that he “was checking
some of the jurors through the computer system” (italics added)
and that he was “going to check certain jurors when they spark
[his] interest” (italics added), indicating that Kenneth M. was
not the only juror he investigated. Rather, the record suggests
that Kenneth M. may have been the only juror checked who
provided inaccurate information on his questionnaire. Although
the prosecutor’s background check on some jurors, including
Kenneth M., may be probative concerning the issue of
discriminatory intent, we conclude that this fact, without
additional indicia of discriminatory purpose,5 falls short of
establishing a prima facie case. We also note that the record
does not reveal any significant disparities in the nature or
extent of the prosecutor’s questioning of the African-American
prospective jurors, and defendant does not argue otherwise.
In his dissent, Justice Cuéllar asserts that the prosecutor’s
“unwillingness” to answer defense counsel’s question whether
he checked only African-American jurors in itself constitutes an

5
If there were evidence that the prosecutor in fact targeted
only African-Americans for background checks, we would agree
that such conduct would plainly constitute a prima facie case of
discrimination. But there is no such evidence here.

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“implicit[] admission of discriminatory conduct.” (Dis. opn. of
Cuéllar, J., post, at p. 6.) We do not draw the same conclusion
from the record. First, it is not incumbent on a prosecutor to
respond to questions from defense counsel; questions to
opposing counsel are properly funneled through the court. A
prosecutor may have numerous innocuous reasons for not
engaging with defense counsel, including not wanting to
encourage further probing into a topic relating to jury selection
or trial strategy. Indeed, in this case, defense counsel’s query
quickly morphed into repeated requests for the disclosure of “all
the jurors” on which the prosecutor ran checks. Neither
defendant nor Justice Cuéllar argue that the prosecutor was
obligated to disclose this information, or that the failure to do so
is evidence of discriminatory intent.
Second, even assuming that a response was required, the
transcript of proceedings shows that the prosecutor did, in fact,
give a nondiscriminatory reason concerning why he had not
initially answered defense counsel’s query. Specifically, the
prosecutor told the court that he was objecting to defense
counsel’s questions relating to the investigation of prospective
jurors because defense counsel had not yet “ma[d]e a prima facie
case” under Batson/Wheeler. The trial court agreed with the
prosecutor’s assessment and declined to order disclosure on that
basis. Thus, the record indicates that the prosecutor preferred
not to reveal anything related to his jury selection and trial
strategy unless ordered to do so, and he believed that defense
counsel had not demonstrated that a response was required.
Indeed, the prosecutor undertook the same approach following
defendant’s second Batson/Wheeler challenge, explaining that
“if [the court] believe[s] [defendant] made a prima facie case
based on what is before [the court], then I am required to

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respond.” That the prosecutor, citing Wheeler, declined defense
counsel’s request that he disclose information regarding the
jurors he checked, does not constitute in itself “compelling
evidence” of unlawful scrutiny. (Dis. opn. of Cuéllar, J., post, at
p. 1.)
In short, the prosecutor was under no obligation to
respond to defense counsel’s question, and his stated reason for
not answering it is innocuous and credible. We decline to adopt
Justice Cuéllar’s incongruous reasoning that, despite the trial
court’s finding that no prima facie showing of discrimination
had been made, the prosecutor’s refusal to answer defense
counsel’s query nonetheless gives rise to a prima facie inference
of discriminatory purpose. We conclude that the prosecutor’s
refusal to answer defense counsel’s question does not establish,
alone or together with other circumstances, a prima facie case
of discrimination.
Finally, defendant emphasizes that Cavallo and Mary S.
are both Caucasian while he is African-American. Although the
prosecution presented evidence that defendant committed
violent acts against four additional victims, the races of these
individuals are unknown. We acknowledge that when the race
of the defendant is different from that of the victim, and the
victim is a member of the group to which the majority of
remaining jurors belong, this circumstance is one of many that
is relevant to whether a prima facie case existed. (See Johnson,
supra, 545 U.S. at p. 167; Wheeler, supra, 22 Cal.3d at
p. 281.) However, as indicated above, because we have
concluded that none of the other “especially relevant factors” —
“whether a party has struck most or all of the members of the
venire from an identified group, whether a party has used a
disproportionate number of strikes against members of that

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group, [and] whether the party has engaged those prospective
jurors in only desultory voir dire” (Reed, supra, 4 Cal.5th at
pp. 999-1000) — are present, we do not infer discriminatory
intent based solely on the fact that the known race of two of the
victims is the same as that of a bare majority — 7 of 12 — of the
seated jurors.6
Based on the entire record, we conclude the trial court did
not err when it ruled that defendant had failed to show a prima
facie case of discriminatory intent.7

6
We also disagree with Justice Cuéllar’s characterization of
the trial court’s deeming the races of the victims and defendant
as a “side issue that we need not get into”; rather, the record
shows that the trial court made this comment in the context of
explaining that a defendant need not be the same race as the
excused jurors in order to make a Batson/Wheeler motion.
7
Because we have concluded that defendant failed to raise
an inference of discrimination, we need not resort to examining
the record for obvious race-neutral reasons for the prosecutor’s
peremptory strikes that would “ ‘necessarily dispel any
inference of bias[.]’ ” (Reed, supra, 4 Cal.5th at p. 1000.)
However, because the dissenting justices rely heavily on the
characteristics of the excused African-American jurors, we feel
it appropriate to note that, at least with respect to three of the
four jurors, there do appear to be “clearly established” and
“apparent” nondiscriminatory reasons for their excusal. (Ibid.)
Kenneth M. lied on his jury questionnaire about two criminal
convictions. Shanna H. wrote that her son had been arrested
twice, including once for rape, and she testified that she felt the
court process was unfair and that her son may have been coerced
into accepting a plea bargain for a crime he did not commit.
Sharon H. had worked extensively with abused and troubled
adolescents, including youths from juvenile courts, and she
stated that she had a “heart” for “what we call throw-away kids.”
Defendant’s mitigation case focused on childhood abuse and

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

C. Removal of Juror for Cause
Defendant contends the trial court erred when it excused
prospective juror Laura C. for cause based on her opinions and
beliefs regarding the death penalty. Defendant asserts the court
asked misleading questions and provided inaccurate
information to the juror regarding the nature of a jury’s
sentencing discretion.
In her jury questionnaire, Laura C. stated that she was a
legal secretary and identified herself as a practicing Catholic.
When addressing whether she would automatically refuse to
vote in favor of the death penalty, she wrote, “No. As a fair-
minded person and legal secretary familiar with legalities I
would make a judgment based on all factors before making any
decision.” When asked about her general feelings regarding the
death penalty, she explained, “I would prefer a society where
people lived happily together and no crimes ever happened —
but that is not the real world — so I understand that for those
people who commit crimes or who think about it, the death
penalty must be there as a reminder of what the consequence
might be because of their actions. This penalty thus protects the

neglect; to the extent the prosecutor anticipated that defense,
Sharon H. would clearly be an undesirable juror from the
prosecution point of view. These revelations provide a readily
apparent, race-neutral basis to excuse each of these prospective
jurors. Although the fourth juror, Lois G., presented no such
obvious grounds for excusal, the existence of readily apparent
grounds for three of the four disputed prospective jurors would
undercut, to some degree, whatever possible inference of
discrimination that might otherwise arise from the pattern of
excusals considered in isolation. But once again, here we
conclude that the statistics alone did not give rise to an inference
of discrimination.

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peaceful people.” Concerning whether she had any religious
objections to the death penalty, she wrote, “Yes/No. I believe
people should live their lives for as long as God lets them,
despite what kind of life that may be — a person should
experience his whole life — however, I believe that the death
penalty needs to be a reminder to all who would endanger
others.”
During voir dire, the court asked Laura C. if the answers
she provided on the questionnaire accurately reflected her
feelings regarding the death penalty, and she confirmed that
they did. She confirmed that she would be able to follow the law
and guidance given to the jurors. The court explained, “You
understand the law does not — well, in a sense it mandates a
result in some situations. If you find that the mitigating
circumstances are substantial, that they outweigh the
aggravating or that they’re equal to the aggravating, they are
balanced. Then, in that situation, the law says you cannot
return a death penalty, but you can only return life without
parole.” Laura C. replied, “Yes. I am happy for that.” The court
continued, “If, on the other hand, the aggravating circumstances
substantially outweigh the mitigating, at that point, the law
does not mandate the death penalty, but it says [the jurors] still
have the option of choosing not to impose the death penalty, if
they feel that that is not the most appropriate punishment. . . .
Now, is there anything in that structure that would cause you
any problems?” Laura C. said, “No.”
Defense counsel stated that he was “a little bit confused”
about the juror’s attitudes concerning the death penalty based
on her answer that a person should experience his whole life.
Counsel asked, “Are you of the belief that only God can take a
life?” Laura C. replied, “That would be my number one belief.”

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She acknowledged the law in California, and said, “I have tried
to integrate my Christian beliefs with the real live world that
we live in. . . . I believe that when there is a law, and I need to
decide on that law, I do use my Christian values, too, my
Christian values here in this situation. You have not only a civic
responsibility, you have a Christian responsibility to be true to
your decision, to be fair to, not only my Christian values, but
also to society. It’s a very hard thing to integrate, but somehow
I feel that I am able to do that.”
Defense counsel said, “The judge, a little bit earlier, told
you that even if you found the evidence that the district attorney
put on was — was substantially greater, the aggravating
evidence was substantially greater than the mitigating
evidence, you could still return a life without the possibility of
parole verdict, and that would still be following the law. Do you
feel comfortable with that concept?” Laura C. replied that she
did. Defense counsel continued, “And if eleven other jurors were
to tell you quite candidly, and with no reservation, that the
district attorney had proven — has met his burden, and they all
feel the death penalty is appropriate, and that’s the way they
desire you to vote or give your individual opinion. If you still felt
that this was a life without possibility of parole, could you stand
by your individual conviction?” Laura C. replied, “I am glad you
brought that up because I would, of course, very candidly take
the lesser, life imprisonment without parole. I would like — I
would prefer that judgment over the death penalty in this
particular situation if aggravating circumstances were more, so,
and I have that choice. I have the freedom of choice, and that’s
not against the law. I have that choice, and it’s legal, and I
would go for the life imprisonment.”

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Defense counsel clarified, “So, no matter what evidence
the district attorney put on, you would only feel life without
possibility of parole would be suitable?” Laura C. replied, “If
that is my legal choice, if I have a choice legally to do that, that’s
the way I would vote.” Defense counsel reminded Laura C. that
she previously said she would feel comfortable following the law
and asked if there were circumstances in which she could apply
the death penalty. Laura C. explained, “If it lent more over to
the aggravating side, and that’s a very good question, possibly
not. I would prefer the life imprisonment without parole.”
The prosecution challenged Laura C. for cause. The court
asked the juror: “[C]orrect me if I am wrong, but I get the
impression from the discussion we’ve had here, this morning,
that you could return a death penalty if the law basically
compelled it?” Laura C. nodded her head. The court continued,
“Because you’re willing to and feel the obligation to follow the
law?” Laura C. replied, “That’s right.” The court said, “Okay.
But in this case, in fact, in any death penalty case, the law does
not ever compel a death verdict. Even when the aggravating
factors clearly and substantially outweigh the mitigating
factors, the law allows the juror — the law says the jurors may
impose the death penalty, but the law does not compel it. It
allows a juror to or a jury to decide, in spite of the heavy
aggravating factors that for whatever reason might be mercy,
they choose to give life without the possibility of parole, so, there
is always an option. The law never compels the death penalty.”
Laura C. acknowledged the court’s comments with “okay.” The
court continued, “And what it strikes me is since you prefer, you
made it clear you prefer, significantly prefer, life without the
possibility of parole to the death penalty, and if the law is never
going to force you, or direct you, or compel you to return a death

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penalty, is it true that, in effect, you would be returning a life
without possibility of parole? That would be your vote in
virtually every case?” Laura C. replied, “I would have to say,
yes. . . . I didn’t realize that, you know. It went over my head
that there isn’t a law that said that compels you. There are no
guidelines. There are no factors. . . . My answer is just, yes.”
The court granted the prosecution’s challenge for cause.
“It is well established that opposition to the death penalty
does not by itself disqualify a juror from sitting on a capital
case.” (People v. Penunuri (2018) 5 Cal.5th 126, 141; see
Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) A prospective
juror may be excluded for cause only when “the juror’s views
would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424.) “ ‘[I]n
applying this standard, reviewing courts are to accord deference
to the trial court. . . . [W]hen there is ambiguity in the
prospective juror’s statements, “the trial court, aided as it
undoubtedly [is] by its assessment of [the venireman’s]
demeanor, [is] entitled to resolve it in favor of the State.” ’ ”
(Penunuri, at p. 141.)
Laura C.’s answers during voir dire indicated that
although she understood the law and was not opposed to the
death penalty generally, she would be unwilling to return a
verdict of death no matter what evidence the prosecution
presented. Indeed, after the trial court informed her that the
law never compels a death verdict, she confirmed that unless
she was forced or compelled to do otherwise, she would return a
verdict of life without the possibility of parole in virtually every

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

case. Although her answers on the jury questionnaire indicated
that she could follow the law as instructed, she admitted to the
court that upon realizing she would not be compelled to return
any specific verdict, she would not be open to returning a verdict
of death. We conclude that Laura C.’s responses sufficiently
indicated that her views would prevent or substantially impair
the performance of her duties as a juror, and therefore the trial
court did not abuse its discretion in granting the prosecution’s
request to remove her for cause.
D. Consideration of Aggravating Evidence
Defendant contends the trial court erred in permitting the
jury to consider the crimes against Mary S. as aggravating
evidence under section 190.3, factor (b) because there was
insufficient evidence that he was the assailant.
As noted above, in his first trial, defendant was found
guilty of raping and assaulting Mary S. On appeal, we
ultimately reversed these convictions after concluding that
Mary S.’s posthypnotic identification of defendant was
inadmissible under Shirley, supra, 31 Cal.3d 18. (People v.
Johnson, supra, 47 Cal.3d 576.)
At the second penalty phase retrial, the prosecution
introduced evidence of the rape and assault as aggravating
evidence under section 190.3, factor (b), rather than retrying the
offenses. The defense unsuccessfully moved in limine to have
the evidence excluded or tried by a separate jury.
The prosecution introduced evidence suggesting that
defendant used the pistol and bullets stolen from Cavallo’s
residence to attack Mary S. After the prosecution concluded its
case, the defense argued that insufficient evidence supported a
finding that defendant committed the crimes against Mary S.,

53
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

and likened its argument to a motion for acquittal. The defense
noted that Mary S. had not identified defendant as her
assailant, and the only evidence against him was a fingerprint
on the gun clip, “a moveable object.” During a hearing on the
defense’s motion outside the presence of the jury, the prosecutor
acknowledged that the gun’s magazine was a moveable object
but argued that “a magazine is an object that normally is not
one that is touched by someone in a casual fashion. The
magazine or a clip belongs inside the weapon and is normally
carried there.” He continued, “[T]he magazine is not in a
position where it’s casually touched, as though someone were
handing around a weapon at a weenie roast somewhere, and you
just happen to touch it. All right. It’s inside the handle of the
weapon, and the fingerprint is on a place where it would
normally be to load the weapon.” The prosecutor went on to
summarize relevant testimony about the fingerprint found on
the magazine and testimony that Cavallo owned a similar
weapon. The court denied defendant’s motion, concluding that
sufficient evidence linked him to the assault and “that there is
sufficient evidence upon which a reasonable jury could find that
the defendant did, in fact, commit the rape.”
Section 190.3, factor (b) permits the jury to consider the
“presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” Before the
evidence is presented to the jury, the trial court must determine
that the evidence offered would allow a rational trier of fact to
decide beyond a reasonable doubt that the defendant committed
the criminal activity alleged under factor (b). (People v. Clair
(1992) 2 Cal.4th 629, 676.) Once presented, whether the
evidence of other acts is significant enough to be given weight in

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

the penalty determination is for the jury to decide. (People v.
Smith (2005) 35 Cal.4th 334, 369.)
We review a trial court’s decision to admit evidence of
other crimes for abuse of discretion, “ ‘and no abuse of discretion
will be found where, in fact, the evidence in question was legally
sufficient.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225.)
“On appeal, the test of legal sufficiency is whether there is
substantial evidence, i.e., evidence from which a reasonable
trier of fact could conclude that the prosecution sustained its
burden of proof beyond a reasonable doubt. [Citations.]
Evidence meeting this standard satisfies constitutional due
process and reliability concerns.” (People v. Boyer (2006) 38
Cal.4th 412, 479-480.)
Defendant asserts the evidence was insufficient because
the gun clip was a movable object. He relies on Mikes v. Borg
(9th Cir. 1991) 947 F.2d 353 (Mikes), a case in which the
prosecution’s only evidence against the defendant consisted of
fingerprints found on a disassembled turnstile the victim had
recently purchased at a going-out-of-business sale. (Id. at
p. 355.) The federal appellate court stated that “in fingerprint-
only cases in which the prosecution’s theory is based on the
premise that the defendant handled certain objects while
committing the crime in question, the record must contain
sufficient evidence from which the trier of fact could reasonably
infer that the fingerprints were in fact impressed at that time
and not at some earlier date.” (Id. at pp. 356-357.) The court
held that the defendant’s conviction could be upheld only if the
record showed that the object in question was inaccessible to
him at the “ ‘relevant time,’ ” defined as “the time prior to the
commission of the crime during which the defendant reasonably
could have placed his fingerprints on the object in

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

question and during which such prints might have remained on
that object.” (Id. at p. 357.) Because the turnstile presumably
had been in operation before being sold, the evidence was
insufficient to preclude the reasonable possibility that the
defendant placed his fingerprints on the item prior to the
victim’s acquisition of it. (Id. at pp. 358-359.)
Defendant also relies on People v. Trevino (1985) 39 Cal.3d
667. In Trevino, the defendant and codefendant were charged
with the murder and robbery of their friend. (Id. at p. 676.) The
only evidence linking the codefendant to the scene of the crime
was a fingerprint found on a dresser drawer. (Id. at p. 678.) The
fingerprint expert could not determine the date of the print,
acknowledging that it could have been made months earlier.
(Ibid.) We held that the fingerprint evidence could not be
considered substantially incriminating. (Id. at p. 696.) Because
the expert could not determine the age of the print, there was
no reason to presume it had been made on the day of the crime
rather than a previous occasion. (Id. at pp. 696-697.) We noted
that the “ ‘evidence as to how or when the print came to be
placed on the dresser is fraught with uncertainty, leaving the
triers of fact to speculate as to how and when the print was
made. This kind of guesswork as to the facts does not elevate
speculation to the level of reasonable inference.’ ” (Id. at p. 697.)
Mikes and Trevino are easily distinguished from this case.
In Mikes, the turnstile containing the defendant’s fingerprint
was “fully accessible to the general public” before the victim
acquired it, and the defendant could have placed his fingerprint
on the object during that period. (Mikes, supra, 947 F.2d at pp.
358-359.) Here, by contrast, there was no evidence the
magazine was accessible to the general public before the crime
against Mary S., making Mikes distinguishable on that basis.

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

Moreover, there was no indication that defendant knew Cavallo
or had ever been inside Cavallo’s home before he was killed, and
yet defendant’s fingerprint was found on an object taken from
inside Cavallo’s home and found at the site where Mary S. was
assaulted. Additionally, it is clear the gun was loaded when
Mary S. was attacked because a shot was fired in the bathroom
during the commission of that crime. It is therefore reasonable
to conclude that defendant loaded the weapon or checked the
clip immediately before using it to assault Mary S.
In Trevino, the codefendant was the victim’s friend and
presumably had been at the victim’s house on occasions prior to
the day of the homicide. Because the date of the fingerprint
could not be determined in that case, no solid evidence linked
the codefendant to the scene on the day of the murder. Here, as
noted above, defendant’s fingerprint was found on the magazine
within a gun that belonged to Cavallo, who did not know
defendant. Moreover, unlike in Trevino, the prosecution’s
fingerprint expert testified that the fingerprint powder “leaped
out” at him, which indicated that the print was fresh when Mary
S. was assaulted. Therefore, the evidence of defendant’s
fingerprint on the magazine of the gun used to attack Mary S.
was sufficient to establish identity.
For the reasons stated above, the evidence was sufficient
for a rational trier of fact to determine beyond a reasonable
doubt that defendant committed the attack on Mary S. The trial
court, therefore, did not abuse its discretion in admitting
evidence of the rape and assault against Mary S. Because the
trial court did not err, defendant’s rights to due process, a fair
trial, and a reliable penalty verdict under the United States
Constitution were not violated.

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

E. Admission of Hearsay Statements
Defendant contends the trial court erroneously admitted
hearsay statements from Cavallo’s friend, Richard Canniff, who
testified that Cavallo kept a gun at home. Defendant asserts
the statements were inadmissible as evidence of habit.8
Canniff died before the second penalty phase retrial.
Defendant filed a written motion in limine to exclude Canniff’s
prior testimony as inadmissible hearsay. Defendant did not
challenge Canniff’s unavailability. Rather, defendant was
specifically concerned with Canniff’s testimony that Cavallo
kept a small gun near him in his house; Canniff admitted he
never personally saw a gun at Cavallo’s residence. The
prosecution argued the evidence was admissible as evidence of
habit because Cavallo customarily kept a gun near his bed for
protection. He also argued that Canniff’s statements tended to
show Cavallo was asleep when he was killed, because Cavallo
did not have time to reach for the gun.
The court admitted Canniff’s testimony over defendant’s
objection. The prosecution read Canniff’s testimony from the
guilt phase, during which Canniff said that Cavallo kept a small
gun for protection. Canniff explained, “ ‘It had to be close to his
bed. . . . He was never — he said repeatedly to me and others
that he was never going to be caught off guard by anyone.’ ” He

8
The Attorney General argues that defendant forfeited his
challenge to the admission of Canniff’s hearsay statements by
not objecting directly before the testimony was read. However,
defendant filed a motion to exclude Canniff’s testimony before
trial. The Attorney General also alleges the evidence was
admissible as nonhearsay under Evidence Code section 1250 to
show that Cavallo was asleep when he was killed, but cites no
authority to support this claim.

58
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

said that Cavallo “ ‘frequently’ ” mentioned keeping a gun for
protection.
Evidence Code section 1105 provides: “Any otherwise
admissible evidence of habit or custom is admissible to prove
conduct on a specified occasion in conformity with the habit or
custom.” “ ‘ “Habit” means a person’s regular or consistent
response to a repeated situation. “Custom” means the routine
practice or behavior on the part of a group or organization that
is equivalent to the habit of an individual.’ ” (People v. Memro
(1985) 38 Cal.3d 658, 681, fn. 22.) Because evidence of habit or
custom must be “otherwise admissible,” any hearsay evidence of
habit must fall within an exception to be admissible. (See Evid.
Code, § 1200 [hearsay evidence is inadmissible except as
provided by law].) The determination whether habit evidence is
admissible rests in the sound discretion of the trial court.
(People v. Hughes (2002) 27 Cal.4th 287, 337.) The erroneous
admission of hearsay is reviewed under the reasonable
possibility standard. (People v. Brown (1988) 46 Cal.3d 432,
447-448 (Brown); see People v. Page (2008) 44 Cal.4th 1, 54.)
Defendant asserts the evidence was inadmissible hearsay
and the trial court erred in admitting Canniff’s testimony as
evidence of habit. He also asserts that the testimony was
insufficient to show habit because it failed to establish a regular
or consistent response to a repeated situation. Even assuming
the trial court erred in admitting the statements, however, there
is no reasonable possibility that a result more favorable to
defendant would have been reached in the absence of the
asserted error. (Brown, supra, 46 Cal.3d at p. 448.) The court
admitted the testimony of two other witnesses from prior trials
concerning Cavallo’s ownership of a .22-caliber handgun, and
Cavallo’s ex-wife testified that he owned such a handgun.

59
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

Additionally, testimony from the officer who found Cavallo’s
body supported an inference that Cavallo had been asleep
during the attack. Thus, any error in admitting Canniff’s
testimony was harmless.
F. Evidence of Failure to Apologize to Prior Victim
Defendant contends the trial court abused its discretion
when it admitted evidence that defendant did not apologize to
Florence M. or ask her about the fate of her child after his
conviction for stabbing her. He asserts her statement regarding
his lack of apology was irrelevant to proving a factor in
aggravation.
Florence M. testified about the 1971 stabbing
incident. She explained that after her testimony in the first
trial, she and her husband, defendant’s half-brother, visited
defendant at a state psychiatric hospital. Over defendant’s
objection, the prosecutor asked Florence M., “Did he apologize
to you in any way for what he done [sic] to you?” She replied,
“No, no way at all.” The prosecutor asked, “Did he ask you
anything about the baby?” Florence M. answered, “No, he didn’t
say anything about that.”
A lack of remorse is not enumerated as an aggravating
factor under section 190.3. A prosecutor, therefore, should not
argue that the absence of remorse is a factor in aggravation.
(People v. Keenan (1988) 46 Cal.3d 478, 510; see also People v.
Rivera (2019) 7 Cal.5th 306, 343 (Rivera) [postcrime evidence of
remorselessness does not fit within any statutory sentencing
factor and should not be urged as aggravating].)
Assuming without deciding that the court erred in
admitting Florence M.’s statement that defendant did not
apologize or ask about her baby, however, we see no reasonable

60
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

possibility that the error affected the jury’s death verdict.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman);
Rivera, supra, 7 Cal.5th at pp. 343-344; People v. Nelson (2011)
51 Cal.4th 198, 218, fn. 15.) The prosecution presented other
aggravating evidence in support of a death verdict, including the
circumstances of the crimes against Cavallo, defendant’s prior
felony convictions, and his prior instances of violent criminal
conduct, including the rape and assault of Mary S. Nothing
suggests that Florence M.’s testimony regarding defendant’s
lack of remorse “tipped the scales in favor of death.” (Rivera, at
p. 344.) We therefore conclude any error in admitting the
testimony was harmless beyond a reasonable doubt.
G. Admission of Aggravating Evidence Without
Notice
Defendant contends the trial court abused its discretion
when it admitted evidence in aggravation with assertedly
inadequate notice.
Nine days after the attack on Florence M., CHP Officer
Lance Erickson stopped defendant for committing a traffic
violation. As noted earlier, Erickson arrested defendant for
grand theft of an automobile. When detained, defendant told
Erickson that he thought he had killed his pregnant sister-in-
law by stabbing her “from the neck down to her stomach.”
Before the first penalty phase retrial, the prosecution filed
a list of possible witnesses, which included Erickson. Because
Erickson’s original police report had been destroyed a few years
after the grand theft case closed, the parties used a report about
that case prepared for the Los Angeles Police Department
(LAPD) by another officer.

61
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

The prosecutor met with Erickson the night before he was
scheduled to testify in the second penalty phase
retrial. Erickson informed the prosecutor about additional facts
not in the LAPD report, including that defendant ran from and
struggled with the officers, made statements to the effect that
he would shoot them if he had a gun, and admitted that he had
stabbed, raped, and killed his pregnant sister-in-law during an
argument because she “was coming on to him.”
The prosecutor acknowledged to the court that the
additional information was new to him and to the defense. He
then sought to introduce the statements defendant had made
about Florence M. and her making sexual advances toward him,
arguing that they were indicative of a guilty mind and were
clearly “false statements” about the attack. Defendant opposed
admission of the statements, arguing that they lacked adequate
notice and the prejudicial effect of the evidence outweighed the
probative value under Evidence Code section 352.
Following an evidentiary hearing outside the presence of
the jury to hear Erickson’s testimony, the court admitted
defendant’s statements concerning why he stabbed Florence M.
The court reasoned that the inclusion of Erickson’s name on the
witness list for the first penalty retrial and the admitted LAPD
report provided the defense with adequate notice to contact
Erickson and interview him well before the second penalty
retrial. The court also observed that the LAPD report “indicates
that there was some statement made to the Highway Patrol
about the Florence [M.] incident. Either side could have
explored that and been ready for it. It just turns out that neither
side did look into it in detail.” The court denied defendant’s
motion to exclude the statements and his request for a
substantial delay in proceedings to investigate the matter.

62
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

The court also concluded that “the information [Erickson]
offers is very relevant to the state of mind of the defendant
concerning this incident and his attitude toward this incident,
how he feels about the violence he visited upon his sister-in-law.
It all goes to character and the quality of the criminal conduct
involved. So, in that sense, I consider it very probative, and, of
course, in a sense it’s prejudicial, but in a penalty trial . . . [the]
issue of the prejudicial nature of the evidence . . . doesn’t have
the same application as it does in a guilt trial.”
Section 190.3 requires the prosecution to provide the
defendant with notice of the evidence to be introduced within a
reasonable period of time prior to trial. “Nothing in the
language of section 190.3, however, suggests that it was
intended to grant the defendant any greater rights with respect
to penalty phase evidence, or that evidence of which the
prosecution had no knowledge when the original notice is given
must be excluded. Such a construction would be inconsistent
with the purpose of section 190.3 that the jury be made aware of
all of the factors bearing on the penalty decision.” (People v.
Jennings (1988) 46 Cal.3d 963, 987.) If the prosecution
discovers new evidence that it wishes to present after the initial
notice, it must promptly notify the defendant. (Ibid.) If
necessary, the defendant is entitled to a reasonable continuance
to allow time to prepare. (Ibid.)
We find no error in admitting the evidence. Defendant
knew Erickson was on the witness list for the first penalty phase
retrial and had more than a year to contact him if defendant
wished to inquire about the circumstances surrounding his
arrest. Further, the LAPD report stated that defendant said he
stabbed and killed Florence M. Although the report did not
include the information regarding why defendant stabbed

63
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

Florence M. — that they argued because she allegedly made
sexual advances toward him — the report provided the defense
with sufficient notice that defendant may have said something
about the assault against Florence M. The first penalty retrial
witness list and LAPD report provided to defendant gave him
sufficient time to prepare a defense to the aggravating evidence.
(See People v. Howard (2008) 42 Cal.4th 1000, 1016.) The
prosecutor also promptly notified the defense of the new
information the morning after he spoke with Erickson.
Moreover, the trial court did not abuse its discretion when
it found the evidence was more probative than prejudicial.
“Prejudicial” means evidence “ ‘that uniquely tends to evoke an
emotional bias against a party as an individual, while having
only slight probative value with regard to the issues.’ ” (People
v. Thomas (2012) 53 Cal.4th 771, 807 (Thomas).) “A trial court’s
exercise of discretion under [Evidence Code] section 352 will be
upheld on appeal unless the court abused its discretion, that is,
unless it exercised its discretion in an arbitrary, capricious, or
patently absurd manner.” (Id. at p. 806; see Evid. Code, § 352.)
Defendant cannot establish that the trial court did so here.
Defendant’s statements had probative value by showing that he
attempted to shift blame to the victim, did not feel empathy for
the victim, and did not take responsibility for his actions.
H. Evidence of Offense Committed After Capital
Offense
Defendant contends the trial court erred when it
instructed the jury that it could consider as an aggravating
factor defendant’s conviction for assault with a deadly weapon
on Verna O., because he was convicted of this crime after the
capital offense. Therefore, he asserts, it was not a prior
conviction within the meaning of section 190.3, factor (c).

64
PEOPLE v. JOHNSON
Opinion of the Court by Cantil-Sakauye, C. J.

Defendant attacked Verna O. on December 2, 1978, prior
to the murder of Cavallo. He was convicted of the charge
relating to the offense against Verna O., however, shortly after
he committed the capital offense. The court determined that a
“prior felony conviction” under section 190.3, factor (c), was
admissible if the conviction occurred after the capital offense but
before trial. Over defendant’s objection, the trial court
instructed the jury that it could consider the attack on Verna O.
as an aggravating factor under section 190.3, factor (c).
The Attorney General concedes that defendant’s
conviction for the assault on Verna O. was inadmissible as a
prior felony conviction under section 190.3, factor (c). (See
People v. Balderas (1985) 41 Cal.3d 144, 201 (Balderas) [“prior
felony convictions” are limited to those entered before
commission of the capital crime].) However, we conclude the
error is harmless because there is no reasonable possibility that
defendant would have received a more favorable result absent
the error. (See Brown, supra, 46 Cal.3d at p. 448-449; People v.
Lewis (2008) 43 Cal.4th 415, 527 [“ ‘reasonable possibility it
affected the verdict’ ” standard is essentially the same as beyond
a reasonable doubt standard in Chapman, supra, 386 U.S. at p.
24].) The weight of the other aggravating evidence was
substantial. The prosecution introduced evidence of the
circumstances of defendant’s robbery and murder of Cavallo, his
assault and rape of Mary S., and his threat to dissuade Florence
M. from testifying. The prosecution also introduced evidence
that defendant had

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4458742. Public record. Not legal advice.