People v. Johnsen

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN DAVID JOHNSEN,

Defendant and Appellant.

S040704

Stanislaus County Superior Court

R239682

February 1, 2021

Justice Liu authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,

Kruger, Groban and Ikola* concurred.

*

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division Three, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. JOHNSEN

S040704

Opinion of the Court by Liu, J.

A jury convicted defendant Brian David Johnsen of first

degree murder (Pen. Code, § 187; all undesignated statutory

references are to the Penal Code), attempted murder (§ 664),

two counts of robbery (§ 212.5), three counts of burglary (§ 459),

and five counts of solicitation to commit murder (§ 653f). The

jury found true the special circumstances that Johnsen

murdered Juanita Bragg during a robbery and a burglary.

(§ 190.2, subd. (a)(17)(A), (G).) The jury also found true that the

murder was perpetrated by personal use of a deadly weapon

(§ 12022, subd. (b)) and that the attempted murder count was

committed with personal use of a deadly weapon and resulted in

great bodily injury (§§ 12022, subd. (b), 12022.7). At the close of

the penalty phase, the jury returned a verdict of death. Johnsen

moved for a new trial and to modify his sentence to life without

the possibility of parole. (§ 190.4, subd. (e).) The trial court

denied these motions and sentenced Johnsen to death.

Johnsen’s appeal is automatic. (§ 1239, subd. (b).) We affirm

the judgment.

I. FACTS AND BACKGROUND

A. Guilt Phase

1. Prosecution Case

Sylvia Rudy lived alone in a residential complex owned by

her employer. Johnsen and his mother lived in the duplex just

behind Rudy’s home. There were openings on each side of the

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fenced patio area of Johnsen’s home, which allowed for

unimpeded access to Rudy’s home.

(a) September 3, 1991

Rudy went to work in the morning. During lunchtime,

Rudy returned home to cash a check for her adult daughter,

leaving the cash on Rudy’s dining room table before returning to

work. Around 3:00 p.m., Rudy’s daughter arrived at Rudy’s

home to discover the front door wide open and the cash on the

table missing. When Rudy came home, she found a large hole

in the glass window of her back bedroom. Her VCR and her

jewelry, which Rudy kept in her bedroom dresser, were missing.

(b) February 15, 1992

Around 10:00 a.m. on February 15, Johnsen called his

friend, Mickey Landrum, to ask him to come to Johnsen’s house

and help move a television set. Landrum arrived around 2:30

p.m., at which point Johnsen drew Landrum’s attention to the

television located inside Rudy’s home. Landrum refused to help

steal Rudy’s television. Johnsen then showed Landrum various

items he had taken from Rudy’s home, including a microwave,

boom box, portable bar, china plates, and jewelry. Johnsen

informed Landrum he had broken into Rudy’s home before.

Either at that time or a few days later, Johnsen also showed

Landrum 10 keys attached to a key ring he had taken from

Rudy’s home, one of which Johnsen surmised was Rudy’s home

key.

When Rudy returned home for the day, she noticed that

her microwave and china plates were missing. She also noticed

that the window in her back bedroom was broken. Rudy later

realized that her liquor, boom box, and answering machine were

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missing. Her portable bar, camera, spare car keys, and spare

front door key were also missing.

Rudy attempted to call 911 from her kitchen telephone,

but the phone’s internal components had been disassembled.

She then tried to call 911 from the combination clock-radio-

telephone in her bedroom, but it was missing.

(c) February 18–19, 1992

On February 18, Landrum spent the night at Johnsen’s

house, where he and Johnsen drank, smoked pot, and snorted

“crank” (i.e., crystal methamphetamine) together. On the

morning of February 19, a Modesto Police Department detective

arrived at Johnsen’s home and took Johnsen in for questioning

for an unrelated matter. At Johnsen’s insistence, the detective

allowed Landrum to stay at the residence.

Shortly thereafter, Landrum received a call from Johnsen,

who had been taken to the Modesto jail. Johnsen asked

Landrum to hide all the items he had taken from Rudy because

he was worried that the police would soon get a search warrant

and find Rudy’s stolen property. Landrum acceded to Johnsen’s

request and placed all the stolen goods into a truck. Landrum

then drove the items to a friend’s house. Landrum’s friend

refused to take possession of the items for safekeeping.

Landrum then phoned Johnsen’s mother. He informed

her that Johnsen had left with a detective and that he had taken

the items from Johnsen’s home at his request. Landrum and

Johnsen’s mother met up for dinner at a pool hall near Johnsen’s

home. Afterward, they drove separately to Landrum’s friend’s

house so they could transfer the items into Johnsen’s mother’s

car.

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Over the next few days, Johnsen’s mother kept the items

in the trunk of her car. She then asked her father, Johnsen’s

grandfather, to keep several of the items in his garage, including

the microwave, portable bar, china plates, boom box, and

possibly an answering machine. At some point, Johnsen’s

grandparents told her that they no longer had space, so

Johnsen’s mother moved the items to her aunt and uncle’s home.

At trial, Johnsen’s mother testified that she did not know

that the items were stolen at the time. Despite her lack of

awareness, she was suspicious about the origin of the items

because Johnsen had told her, “As far as you know, I got it either

at a garage sale or it was given to me.”

(d) February 28 – March 1, 1992

On the morning of Friday, February 28, Rudy went to

work. After work, she left Modesto for a weekend trip to Pebble

Beach with friends without first returning home. Some time

that weekend, Juanita Bragg and Leo Bragg, Sr., came to stay

at their daughter Rudy’s home (to avoid confusion, Leo, Sr., will

be referred to in this opinion as Leo, and his son, discussed post,

will be referred to as Leo, Jr). The Braggs lived in Las Vegas,

but they came to Modesto every year to visit Rudy. So they could

get into her home, Rudy left a spare key for them in a furnace

just outside her home. The Braggs arrived at Rudy’s home some

time before 7:00 p.m. on Saturday, when they spoke with Rudy’s

daughter over the phone.

On Saturday, February 29, Landrum spent some of the

evening at Johnsen’s home, where he helped Johnsen and his

mother prepare to move out of their home. Johnsen and

Landrum also drank, smoked pot, and used methamphetamine

together. Between 9:00 to 10:30 p.m., Landrum drove to his

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mother’s home in the same city, where he spent the remainder

of the night. The next morning, around 8:30 a.m., Johnsen and

his mother began moving out of their apartment. Johnsen was

moving into a Modesto apartment with Landrum while

Johnsen’s mother was moving to San Jose. Landrum arrived at

Johnsen’s home around 10:00 a.m. to help them move.

Later that day, around 3:00 p.m., Rudy returned home.

She spotted her parents’ car parked in her carport. After

parking her own car, Rudy unlocked the front door’s deadbolt

lock and entered her home. She immediately noticed that the

house was quiet and the curtains were closed.

Rudy looked into the guest bedroom and saw her parents

lying in bed. At first, Rudy assumed they were napping. When

she entered the room, she heard Leo moaning. As Rudy

approached him, he reacted fearfully, and she saw that the left

side of his head appeared to be bashed in. Rudy then checked

on Juanita. There was blood on Juanita’s hair, and her body felt

cold and damp. Rudy attempted to call 911, but the bedroom

phone was missing and the line to the kitchen phone had been

severed. Rudy was eventually able to call the police from a

neighbor’s home.

By the time the police and paramedics arrived, Juanita

was dead. Dr. William Ernoehazy, a pathologist, arrived around

6:00 p.m. to analyze her body, which he found lying facedown on

one side of the bed. He determined that Juanita had suffered

over 15 blunt force injuries to her head, resulting in several skull

fractures penetrating into her brain. He also identified six stab

wounds on her neck and abdomen, and one that penetrated her

airway. There were cuts on her wrist, hands, and fingers.

Considering Juanita’s injuries, Dr. Ernoehazy concluded she

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died from blood loss from the injuries on the front, top, and back

of her head caused by a ball peen hammer. Based on her body’s

lividity and the rigidity in her neck, upper extremities, and

knees, Dr. Ernoehazy estimated that Juanita died between

10:00 a.m. and noon and estimated that she was attacked two to

three hours earlier.

The police found Leo alive but badly injured. He was

treated at a nearby hospital emergency room. A neurosurgeon

treated the injuries to Leo’s neck, head, and abdomen.

Physicians removed skull fragments and a clot from Leo’s brain,

and sutured Leo’s lacerated inferior mesenteric vein and two

holes in Leo’s large intestine and colon. According to his

treating physicians, Leo would have died without this lifesaving

surgery.

Detective Jon Buehler found no signs of forced entry into

Rudy’s home. All the windows and sliding glass doors remained

closed, still secured with dowels. Detective Buehler concluded

the only other entryway into Rudy’s home was her front door,

though there was no indication the door had been opened other

than through ordinary use of a key. A locksmith confirmed that

neither the door’s deadbolt lock nor knob lock had been picked.

Inside Rudy’s home, Detective Buehler discovered a pair

of pantyhose consistent with the brand she wore, but irregularly

located on her living room armchair. Forensic analysis found

inside the pantyhose a four-inch clipped blond hair originating

from a Caucasian individual. Through a polymerase chain

reaction (PCR) test, it was also determined that the hair had a

DQ-Alpha type of 2,4, common among 9 percent of the

population. The lab testing destroyed the hair, so the hair itself

was not introduced as an exhibit at trial. Detective Buehler also

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found a bloody knife in a knife block in Rudy’s kitchen. DNA

analysis concluded that the blood on the knife had a DQ-Alpha

type of 1.3,2, the same type as Juanita’s and common among 3

percent of the population.

In the evening of March 1, Johnsen brought a paper bag

with two phones and a calculator to the apartment of Linda Lee,

his new neighbor. Lee was with a friend at the time. Johnsen

was shaking and appeared scared and nervous. He asked Lee

to “get rid of [the bag] where no one would ever see it again.”

After Johnsen left, Lee told her friend to go look for Johnsen, but

her friend could not find him. Lee’s friend then went to

Landrum’s mother, who lived two doors down to see if she would

take the paper bag. His mother agreed to do so. A few weeks

later, Johnsen sold a combination clock-radio-telephone to Lee.

(e) Police Investigation

On March 10, Rudy enlisted a moving company to pack

her belongings at her home. During the move, a company

employee informed Detective Taylor, who was at Rudy’s home

that day, that he found a bent five-inch kitchen knife covered in

dried blood inside a dried flower vase in the guest bedroom. Lab

testing found that the caked-on blood contained a mix of

phosphoglucomutase (PGM) types matching Juanita’s and Leo’s

blood. Because Landrum has the same 2+1+ PGM type as

Juanita, he could not be categorically ruled out as a contributor

to the blood on the knife.

Sometime between March 1 and March 25, Johnsen and

Landrum gave or sold Jorge Romo a pair of yellow dishwashing

gloves. Romo later gave the gloves to the police, and blood on

the gloves was found to have a DQ-Alpha type of 1.3,2, the same

as Juanita’s.

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About two weeks after March 1, Johnsen and Landrum

drove to San Jose to visit Johnsen’s mother and grandparents.

On the drive, Johnsen attempted to hand Landrum the front

door key to Rudy’s home. When Landrum refused to take the

key, Johnsen threw it out of the car window along with a ball

peen hammer inside a blue sweatshirt. No home key or hammer

was ever recovered by the police.

On March 25 or 26, Landrum accompanied Detective

Jolene Gonzales to his mother’s home, where Detective Gonzales

took a calculator, jewelry, and three telephones into evidence. A

few days earlier, Landrum’s mother asked Landrum to take the

suspicious goods away from her home, which she received from

Lee and Lee’s friend, who had in turn received them from

Johnsen. Rudy identified two of the phones as hers and believed

the third phone was the one her parents traveled with. Rudy

also said the jewelry was hers and the calculator was owned by

her father.

On March 26, Detective Taylor contacted Johnsen’s

mother about the goods Johnsen asked Landrum to hide.

Johnsen’s mother initially said she had no knowledge of the

items, though she later conceded she kept them a secret because

she “didn’t want to hang her own son.” The detectives picked up

Johnsen’s mother, and they went to her aunt and uncle’s home,

where they picked up a box of china plates, a boom box, a video

recorder, a portable bar set, and a microwave. Rudy identified

these as her property. An evidence technician discerned Rudy’s

daughter’s fingerprints on the china plates.

(f) Post-arrest Communications

Johnsen was arrested on March 26. Johnsen called Lee

from jail, and he learned that she had turned over to Detective

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Grogan the combination clock-radio-telephone he (Johnsen) had

sold her. Upon hearing this, Johnsen responded, “I’m done for

now.” Johnsen asked Lee if she would pretend to have memory

loss during future conversations with the police since they

“couldn’t do anything” to her. Informing her that he had a key

to Rudy’s home because his mother used to rent that unit,

Johnsen inquired whether Lee knew of anyone who would break

into Rudy’s home while he was in jail to draw suspicion away

from him. Rudy later identified the combination clock-radio-

telephone as hers.

From jail, Johnsen also called Chester Thorne, Lee’s

boyfriend and a recent acquaintance of Johnsen’s. Johnsen

inquired if Thorne knew of anyone who would be willing to

“whack” Landrum and an unspecified woman, which Thorne

understood to mean “kill.” Johnsen wanted Landrum and the

unspecified woman killed with a hammer and stabbed, and for

the crime scene to be as bloody as possible. Johnsen also wanted

the person to place a telephone and other items into a dumpster.

According to Johnsen, these steps would cause the police to

think that the person who assaulted the Braggs remained at-

large, “still out there killing people.”

Although Thorne did not intend to help Johnsen, he

wanted to find out “for sure” whether Johnsen “really did kill

them two old people,” so he promised to look into it. When

Johnsen asked Thorne if he would commit the requested

murders in return for a “favor,” Thorne refused, saying he would

find someone else. Thorne did not tell the police about this call

because there was a warrant out for his arrest for an unrelated

matter, but he also took no steps to carry out Johnsen’s request.

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At some point, Thorne was jailed for receiving stolen

property, unrelated to the offenses at issue here. While Thorne

was incarcerated in the Stanislaus County jail, Johnsen passed

him notes. Thorne copied one of Johnsen’s notes in his own

handwriting before handing the note back to Johnsen. That

copied note instructed Thorne to inculpate “Mouse” (i.e.,

Landrum) for the crimes at Rudy’s home, provided a set of

“facts” for Thorne to rely on, and advised Thorne to tell the police

Landrum “said he would kill you & Linda if you ever tell.”

Thorne also testified about another of Johnsen’s notes, in

which Johnsen instructed Thorne and Lee as follows:

“When Linda [Lee] is asked (on the stand) what it

was that I said to her when I handed her the bag of

property, she must not remember what I said to her.

. . . [E]ven when [the police officer] remind[s] her,

she still must have no memory of the words I said!

No matter what! I will protect you and Linda till the

day I die. I expect the same from both of you. . . .

Remember, if you or Linda is asked a question, and

you know the truth will hurt me, lose your memory!”

Thorne eventually pleaded guilty to various unrelated

crimes, and in exchange for his truthful testimony against

Johnsen, he received a reduced jail sentence of 16 months.

(g) Confession to Eric Holland

From June to August 1992, Johnsen was housed in a

Stanislaus County jail cell next to Eric Holland. Holland had

previously been convicted of counterfeiting and forgery in

federal court, and he also faced several pending felony charges

for forgery and auto theft in several counties.

According to Holland, Johnsen repeatedly tried to

convince nearby inmates to kill Landrum and Landrum’s

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girlfriend. Holland “wanted to get [Johnsen] to shut up,” so

Holland fabricated “a colonel in San Diego that could take care

of it” for “a lot of money.” After hearing this, Holland thought

Johnsen would “blow his smoke” and “that would be the end of

it,” but Johnsen offered to pay the made-up contract killer with

his Harley-Davidson motorcycle, some commissary credit, and

any unconditional favors Holland might need in the future.

Holland told Johnsen “the colonel owed him a favor worth

$50,000” and therefore Holland’s use of that favor on Johnsen’s

behalf would mean that Johnsen owed Holland $50,000.

Initially, Johnsen offered Holland a written confession for

his role in the death of Johnsen’s pregnant girlfriend, Terry

Holloway, in San Diego, discussed in greater detail further

below. Holland rejected this offer as inadequate collateral

because he was concerned the confession could not be verified.

He insisted that Johnsen’s confession be related to his pending

charges. Johnsen agreed to confess to the crimes at Rudy’s

home. He instructed Holland to tell the colonel to kill Landrum,

Landrum’s girlfriend, Landrum’s mother, Landrum’s uncle and

girlfriend, Detective Grogan, Officer Fred Vaughn, Thorne, and

Lee.

Johnsen told Holland three different versions of Juanita’s

murder. First, Johnsen claimed Landrum murdered the Braggs

and that Landrum was framing him. Second, Johnsen said that

both he and Landrum killed the Braggs. Third, Johnsen

admitted that he alone was involved in Juanita’s murder and

the crimes at Rudy’s home.

Johnsen told Holland specific details leading up to

Juanita’s murder. He had previously burglarized Rudy’s home

twice — once in September 1991 and once in February 1992 —

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while he was living at his mother’s home nearby. During the

first burglary, he broke into Rudy’s home to steal cash on a

countertop. At the time of the second burglary, Johnsen asked

Landrum to help him steal a television from Rudy’s home, but

Landrum could not make it. During one of these burglaries,

Johnsen stole the front door key to Rudy’s home.

Johnsen told Holland he had planned to move into an

apartment on March 1 with Landrum. The evening of February

29, he and Landrum got “stoned” and played games. After

Landrum returned to his mother’s home for the night, Johnsen

stayed awake watching television before eventually going to

bed.

Around 5:30 a.m. on March 1, Johnsen woke up and “got

dressed to kill.” Because he was about to move away, Johnsen

knew that this was his last opportunity to rape and kill Rudy,

and he wanted to see if he could “do it.” Johnsen went into his

mother’s kitchen to grab a pair of yellow dishwashing gloves, a

knife, and a ball peen hammer. Using Rudy’s spare front door

key, Johnsen entered Rudy’s home through the front entrance.

Johnsen entered Rudy’s bedroom, which he found to be

empty, before heading to the guest bedroom. Spotting an elderly

couple asleep, he stood beside their bed for three minutes

contemplating if he had the nerve to murder them. Johnsen

then began stabbing Juanita and Leo with the knife and

bludgeoning them with the hammer. As Johnsen stabbed them

through the blanket, the knife he brought bent, so he went to

the kitchen to get more knives. When Johnsen hit Leo in the

head with the hammer, he assumed Leo had died when he saw

Leo’s skull depress an inch. To ensure he killed Juanita,

Johnsen stabbed her body and slit her wrist and throat.

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After he grabbed money from Leo’s wallet and Juanita’s

purse, Johnsen walked around Rudy’s home and found other

items to steal, including Leo’s calculator, several telephones,

and a camera. He returned to the guest bedroom and noticed

Juanita was still alive. To avoid being identified, Johnsen took

a pair of pantyhose from Rudy’s dresser and placed it over his

head before reentering the guest bedroom to stab Juanita again.

As the sun began to rise, Johnsen rushed to leave Rudy’s home

with a bag of stolen goods. He placed the bag by a dumpster

before going inside his home. Johnsen told his mother he was

jogging early in the morning and then went to McDonald’s for

breakfast with the rest of the household. As they were moving

out, Johnsen saw an ambulance in front of Rudy’s home around

3:00 p.m.

After learning some of these details, Holland informed his

attorney about Johnsen’s crimes, but Holland also asked his

attorney “not to say anything” about Holland because he did not

want to risk being labeled a snitch while in jail. Still, Holland

wanted the district attorney to know about the confession

because he believed Johnsen was “sick,” and without the

confession, Holland was worried Johnsen might “get off” and kill

others. Holland’s attorney informed District Attorney

Investigator Fred Antone.

Believing Johnsen’s signed confession would be sufficient,

Holland was under the impression he would not need to testify

at Johnsen’s trial for the notes to be admissible. But on June

26, 1992, Antone arranged a meeting with Holland and his

attorney, during which Antone informed Holland that he would

need to testify or Johnsen’s written confession would be

inadmissible at trial. At the meeting, Holland told Antone that

if he had to testify, he wanted his state sentence to run

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concurrently with his federal term, so he would not be

villainized as an informant while serving time in a California

prison. Antone made no promises, telling Holland: “[I] want

you to understand that I’m not asking you to be a police agent

and do these things for me.”

Informing Antone that he could probably get Johnsen to

disclose details about Holloway’s murder in writing, Holland

asked, “Should I continue, should I stop?” Antone responded,

“Well, that’s, that’s up to you, Eric.” Holland’s attorney then

advised him, “The only agreement that they’re making with you

at the moment is not to use any of this against you.” At the close

of the meeting, Holland signed a written form acknowledging

that he was receiving nothing in return for his continued

engagement with Johnsen.

On July 3, 1992, Holland and Antone met again. At that

meeting, Holland said that he could get a written confession

from Johnsen soon, but that he would not hand over the

confession unless the prosecutor cut him a deal. Antone refused,

saying, “If you have any idea that you even think you’re working

for us, stop,” and he stressed, “I don’t want you to do anything

to try and make my case [against Johnsen] better.”

Over several weeks, between June and a few days after

Holland’s July 3 conversation with Antone, Johnsen gave

Holland several written notes, prompted by questions from

Holland. In the first, Johnsen claimed Landrum committed the

crimes. In the second, Johnsen wrote that he and Landrum

committed the crimes together. For the third, Johnsen wrote

out two or three pages detailing his sole responsibility for the

crimes. Holland rejected this confession as inadequate

collateral because it offered only cursory details. Consequently,

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Johnsen prepared a 14-page account with two one-page

supplements, where Johnsen again took sole responsibility.

Johnsen also prepared additional notes detailing various

aspects of the crime. Johnsen flushed the first note and third

note down his toilet.

By September 1992, Holland refused to testify at trial

because the district attorney had still not entered into any

agreement with him. Soon after, Holland was served a search

warrant of his cell, and several notes were confiscated, including

Johnsen’s 14-page confession. A handwriting expert confirmed

that the writing on the confession and notes matched Johnsen’s

handwriting. Johnsen’s fingerprints were also found on all but

one of the pages of his written confession and on all of the notes

passed between Johnsen and Holland. Only after Holland was

told that he would be subpoenaed did he agree to testify.

Holland committed to tell the truth at Johnsen’s trial; in

exchange, his state sentence would run concurrently with his

federal sentence.

2. Defense Case

(a) February 29 – March 1, 1992

On March 1, David Johnson, a coworker of Johnsen’s

mother and unrelated to the Johnsens, moved into the home as

Johnsen and his mother were moving out. Johnson noticed a

gauze bandage around Landrum’s left hand, and he

remembered Landrum playing with the bandage.

Johnsen’s mother learned from Johnsen that an unknown

person’s blood was found on the knife, in violation of the court’s

order not to discuss her testimony with Johnsen. Following that

conversation, she recalled seeing Landrum with a bandage on

his hand. Johnsen’s mother also testified that she gave

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Landrum a spare key to her home so he could help care for her

cats. Landrum handed the key back to her four days later, well

before March 1. Antone testified that he recalled seeing a

quarter-inch scar between Landrum’s thumb and forefinger,

“near the webbing.” Landrum told Antone that he got the scar

eight years ago while playing a knife game.

Johnsen’s mother also testified that when she went to bed

on February 29 around 10:30 p.m., Johnsen was still lying on

the sofa watching television. Around 3:00 a.m., she woke up to

stop a running toilet, and because she saw Johnsen asleep on

the sofa with the television still on, she turned the television off.

Around 6:40 or 6:45 a.m., Johnsen’s mother woke up to see

Johnsen awake on the couch. The two of them went to

McDonald’s for breakfast with their housemates, the Greshams,

around 7:00 a.m. and returned to the home between 7:30 to 7:45

a.m. Around noon, Johnsen and Landrum went for a 10-minute

walk to buy soda and beer. They spent the rest of the afternoon

moving out of the home, leaving for good around 5:00 p.m.

Ray Gresham, a cotenant of the Johnsens, testified that he

and his six-year-old stepdaughter woke up around 6:30 to 7:00

a.m. to find Johnsen and his mother already awake. All of them

went to McDonald’s, and they spent the rest of the day moving

out. Gresham recalled Johnsen leaving the home around 10:00

a.m. for about 30 minutes to buy soda.

After testifying for the prosecution, Landrum was recalled

as a defense witness. Landrum testified he was 99 percent sure

that on the night of February 29, he left Johnsen’s home

between 10:00 to 10:30 p.m. and slept at his mother’s house. The

only other person there with him that night was his mother, who

left for work around 6:00 a.m. On the morning of March 1, he

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woke up at his mother’s home at around 8:00 a.m., had

breakfast, and watched television. Around 10:00 a.m., he drove

to Johnsen’s home to help the Johnsens move out. Landrum

denied having a cut on his hand that morning or wearing a

bandage on his hand. He denied ever possessing a key to

Johnsen’s home, aside from the day when Johnsen “went away

with the police” and Johnsen left Landrum his house key. He

returned that key to Johnsen’s mother later that day. Landrum

also denied participating in any crimes at Rudy’s home.

(b) Juanita’s Time of Death

Dr. Ernoehazy, a time of death expert, testified that he

had performed over 10,000 autopsies and testified on time of

death hundreds of times. As noted, Dr. Ernoehazy examined

Juanita’s body inside Rudy’s home around 6:00 p.m. on March

1. He observed that her body had not yet begun to decompose,

which led him to conclude she had not been deceased for “a very

long period of time.” Based on her body’s lividity and rigidity,

he estimated that Juanita likely died between six to eight hours

before 6:00 p.m. — in other words, between 10:00 a.m. and 12:00

p.m.

During the preliminary hearing, Dr. Ernoehazy said that

Juanita’s injuries were probably inflicted no more than one or

two hours before her death, which would place the attack

between 8:00 a.m. to 11:00 a.m. At trial, Dr. Ernoehazy could

not recall exactly the basis for that prior estimate, and he opined

that the amount of bodily hemorrhaging and vital reaction

suggested that Juanita likely died several hours after her

injuries. On cross-examination, Dr. Ernoehazy conservatively

estimated that Juanita died more than five minutes but less

than 24 hours after sustaining her injuries, which was

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consistent with the prosecution’s theory that Juanita was

mortally wounded by Johnsen at around 5:00 or 6:00 a.m. on

March 1.

(c) Eric Holland

A witness testified that he sold a 1987 Porsche to Eric

Holland for a $20,600 cashier’s check in 1990. The cashier’s

check turned out to be fraudulent.

3. Prosecution Rebuttal

Detective Grogan testified that he did not see a bandage

on Landrum’s hand when he saw Landrum on March 1 at 7:00

p.m. Detective Taylor testified that Johnsen’s mother told him

that she woke up at 7:00 a.m. on March 1 and that Gresham said

he woke up around 7:30 a.m. that day.

B. Penalty Phase

1. Prosecution Case

(a) Prior Criminal Acts

Holloway’s former coworker Edward Nieto saw Johnsen

slap Holloway’s face multiple times with his open hand. In June

1990, Johnsen threatened to hit Nieto’s new car with a bat

because he had offered to give Holloway a ride to work. When

Nieto called to check on Holloway, Johnsen answered the phone,

and Holloway had been tied up. When Johnsen placed the phone

over Holloway’s ear, she sounded fearful. However, she asked

Nieto not to call the police. The next time Nieto saw Holloway

at work, she had cut wrists and marks around her ankles. Three

days later, Johnsen came to their work and pointed a gun at

Nieto. Johnsen threatened to kill Nieto if Holloway refused to

talk to him.

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On May 17, 1991, Holloway’s body was found in a drainage

ditch off a highway in San Diego. Forensic pathologist and

deputy medical examiner Dr. Mark Super autopsied Holloway’s

body. At the time of her death, Holloway was 16 to 17 weeks

pregnant with Johnsen’s child. Dr. Super observed that

Holloway had suffered several face and scalp lacerations, facial

bone fractures, defensive wounds on her hands, and

strangulation abrasions on her neck. Her injuries were

consistent with assault with a scissor jack and strangulation, as

evidenced by hemorrhaging in her eyes, deep neck bruises, and

fractures in her larynx and hyoid bone. He opined that

Holloway died by strangulation and blunt force injury to her

head.

At the time of Holloway’s death, Johnsen was confined at

the San Diego County jail. Two days before the discovery of

Holloway’s body, Johnsen called his friend Mark Schmidt and

asked to speak with Robert Jurado. Schmidt, Jurado, Denise

Shigemura, and Holloway all went to Schmidt’s apartment to

await Johnsen’s call. When Johnsen called, Jurado and

Shigemura took the call in another room. Johnsen also spoke

privately to Holloway. Around then, Jurado’s girlfriend, Anna

Humiston, arrived at the apartment.

After Johnsen ended the call, Schmidt gave Jurado a Weed

Eater wire, which Schmidt characterized as a clear thin plastic

line used for lawn trimmers. Jurado looped the wire around his

neck, tightened it, and commented, “[t]hat will do.” At Jurado’s

insistence, Schmidt told Holloway to leave with everyone else.

At around 8:45 p.m., everyone except Schmidt left the

apartment.

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On May 16, Humiston called her friend Melissa Andre and

told her that she was involved in something very bad with

Jurado and Shigemura. Humiston told Andre that the three of

them had murdered Holloway on May 15. While Holloway was

sitting in the front passenger seat of Shigemura’s car, Jurado

and Humiston sat in the back seat. Jurado began strangling

Holloway with the wire as Humiston punched Holloway. “Why

are you killing me and my baby?” Holloway screamed, as she

begged them to “[p]lease stop.” They pulled to the side of the

highway, which allowed Jurado to throw Holloway’s body into a

ditch and beat her with a tire jack to confirm she was dead.

Another friend of Humiston’s, Mia Rodigues, testified that

Humiston told her on May 16 that she helped kill “Terry.” She

told Rodigues how it happened: while in the car, Humiston

pinned Holloway’s arms down as Jurado strangled her with a

rope and killed her with a car jack. With Humiston’s help,

Jurado then threw Holloway’s body into a ditch. On May 17,

Humiston and Rodigues spoke and discussed Holloway’s murder

again. According to Humiston, during the attack, Holloway

pleaded, “[w]hy me?” and “[t]ell me why.”

Holland testified regarding Johnsen’s notes confessing to

his involvement in Holloway’s murder, which occurred about a

year before the crimes at Rudy’s home. That handwritten note

was admitted into evidence. A handwriting expert confirmed

the note’s writing as consistent with Johnsen’s, and a

fingerprinting expert found latent prints from Johnsen and

Holland on the note.

Johnsen’s written confession offered an account consistent

with the testimony of the other witnesses. Johnsen called

Schmidt so he could speak with Jurado and Shigemura. All of

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them went to Schmidt’s house with Holloway, as did Humiston.

Jurado and Shigemura learned from Johnsen that Holloway

threatened to tell drug dealer Doug Mynatt that Johnsen,

Jurado, and Shigemura were planning to kill him. Johnsen was

also angered because Holloway was using methamphetamine

while pregnant with their child. Johnsen then spoke privately

with Holloway and conveyed his anger about her threats to

“snitch” on them for planning to kill Mynatt. He noted her

actions would “get a lot of people killed, including me.” Johnsen

spoke again privately with Jurado, who said they would need to

kill Holloway. If Johnsen could persuade Holloway to leave

Schmidt’s apartment with the others, Jurado agreed to “do the

rest.”

Johnsen then told Holloway that he would tell her

everything she wanted to know later, and he encouraged her to

leave with Jurado, Humiston, and Shigemura. Johnsen

promised to call her later that evening. Two days later, on May

17, the police informed Johnsen that Holloway had been

murdered. Johnsen told them he believed Brian Dick, a drug

dealer, was the perpetrator because Holloway owed him money.

On September 1, 1991, San Diego District Attorney

Investigator Anthony Bento interviewed Johnsen as a witness

in Holloway’s murder. Johnsen admitted his involvement in the

conspiracy to murder Mynatt. He also expressed sadness about

the death of Holloway and their unborn child. Jurado,

Shigemura, and Humiston pleaded guilty or were convicted of

Holloway’s first degree murder. (See People v. Jurado (2006) 38

Cal.4th 72, 82.) The record does not reflect whether Johnsen

was charged with any crimes related to Holloway’s murder.

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(b) Victim Impact Evidence

Dr. Lloyd Brown, the medical director of Leo Bragg’s

outpatient rehabilitation facility, testified about Leo’s recovery.

Leo spent half a year at the facility from June 1992 to December

1992. Before his arrival, Leo had already received physical

rehabilitation for his injuries, so Dr. Brown’s efforts centered on

restoring Leo’s cognitive and communication capabilities. Upon

Leo’s arrival, his ability to process information was severely

debilitated, and he could not use proper facial expressions or

speak except for an occasional word. Leo began to regain control

of his bladder, but it was not safe to leave him alone at any time

due to impulsivity that arose due to his brain injuries. After half

a year of cognitive rehabilitation, Leo left the facility still very

impaired; he still could not carry on a conversation orally or in

writing. In Dr. Brown’s view, Leo would never be able to live

alone or make his own decisions; he would need constant

supervision for the rest of his life.

The Braggs’ adult children testified about their mother’s

death and the caretaking duties they took on for their father.

Rudy constantly visualized her mother’s dead body, and her

mother’s death affected her daily. Rudy’s personality changed

after the murder, causing her to become fearful and avoid

people. Rudy also felt personal guilt for her mother’s death and

father’s near-death injuries, believing that she should have

realized her key was missing sooner and that she should not

have left town for the weekend. Leo Bragg, Jr., testified about

his difficulty coping with the loss of his mother.

After the attack, Leo spent three months in the hospital,

a few days with Rudy, and the next six months at a cognitive

rehabilitation facility in Tennessee. During Leo’s brief stay with

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Rudy, he could not communicate with her, his actions were

unpredictable, and he had no control over his body. Because his

injuries prevented him from communicating properly, Rudy felt

as though she had lost him too.

Leo, Jr., and his wife took on full-time caretaking duties

for his father. Constantly agitated, frightened, emotional, and

impulsive, Leo had to be constantly supervised; as a result, Leo,

Jr.’s wife quit her part-time college teaching job to care for him

and usher him between his medical and rehabilitation

appointments. Leo had to be retaught basic tasks as though he

were a child, which was made more difficult by the fact that they

could no longer communicate with him. He regularly broke

down emotionally every time he saw a picture of Juanita. After

15 months of familial caregiving, he was moved to an assisted

living facility. By that time, Leo could only muster smiles,

handshakes, and an occasional farewell.

2. Defense Case

Clinical psychologist Dr. Gretchen White prepared a

psychosocial history of Johnsen. She reviewed case materials,

educational records, and mental health records. She also

interviewed Johnsen’s family and his mental health clinicians.

Her report revealed that Johnsen had warning signs for

future psychological problems as early as infancy. Johnsen was

a “difficult” baby, cried often, had frequent infections, and had

difficulty sleeping. His father was routinely absent from

Johnsen’s childhood because of his naval service, so he barely

parented his sons. Johnsen was the eldest sibling, and he was

talented at the piano, which improved his self-esteem until he

quit playing at age eight or nine. Johnsen’s grandparents were

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involved in Johnsen’s life, including whenever his parents were

absent.

During his early childhood, Johnsen was prescribed

Ritalin for his defiant, erratic, and fidgety behavior in school.

Dr. White suspected that Johnsen had attention deficit

hyperactivity disorder (ADHD) and that his mother’s lack of

structure exacerbated its effects. His parents took him off

Ritalin at age eight or nine without medical consultation.

Johnsen’s father was concerned the drug was stunting his

growth, and his mother believed he no longer needed it because

he was doing well in school. Johnsen’s behavioral problems

returned after his prescription was discontinued.

During Johnsen’s early teenage years, his parents

separated and divorced. Following the separation, Johnsen’s

father became more involved in his life, but his involvement

declined when he remarried. Johnsen disliked his stepmother;

she in turn was critical of him. At one point, Johnsen gave his

father an ultimatum, demanding that his father choose between

him or his stepmother. When Johnsen was 16 years old,

Johnsen’s father discontinued his relationship with his sons,

and Johnsen’s tearful pleas for him to visit were rebuffed. After

that, Johnsen’s father only contacted his sons by sending cards

to them for their birthdays and for Christmas, with a few dollars

inside.

Robert Remmer, a friend of Johnsen’s mother who lived

with the Johnsens for about 10 years, babysat Johnsen when his

mother traveled for work. Remmer exerted minimal discipline

in Johnsen’s life, and he often smoked pot and ingested

methamphetamine with Johnsen and Johnsen’s brother, Kevin.

Dr. White identified Johnsen’s mother’s boyfriend, Jack

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Minteer, as a positive influence on his life when he was 17.

When Johnsen’s mother and Minteer broke up, his departure

disappointed Johnsen.

In middle school, Johnsen began using pot. He started

using methamphetamine about a year later, at age 14 or 15.

Johnsen may also have used LSD and cocaine. A neighbor of the

Johnsens told Dr. White about an incident in Johnsen’s teenage

years when the neighbor’s bathroom window screen was slashed

and a hand was stuck through it while his daughter was

showering. The neighbor went to Johnsen’s home, where he saw

a carpet knife on the table, and Kevin told him that Johnsen had

been cutting window screens around the neighborhood.

After Johnsen overdosed and was hospitalized at age 17,

he was enrolled in a drug treatment program with his brother.

While undergoing treatment, Johnsen lamented the absence of

his father in his life. A psychologist found that Johnsen’s loss of

his father from his life had a strongly negative impact on him.

The psychologist also noticed Johnsen had a fear of failing due

to anticipation of criticism and that his fear of failure infected

his daily life. He diagnosed Johnsen with an “under socialized,

nonaggressive” conduct disorder as well as cannabis and

amphetamine dependency. The psychologist spotted symptoms

consistent with ADHD, dysthymic disorder, and borderline

personality disorder, but he never formally diagnosed Johnsen

with any of those conditions because he was hesitant to label

teenagers whose brains and personalities were still in flux.

Upon Johnsen’s discharge, the treatment center

recommended that Johnsen be moved into a residential

treatment program, but he ended up moving back in with his

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mother. Following treatment, Johnsen maintained sobriety for

about six months.

Johnsen, his brother, and his mother were referred to

outpatient counseling with a family therapist. They received

counseling for 20 to 25 weeks. During these sessions, Johnsen’s

mother regularly complained about Johnsen and his brother,

and said she had no time to raise them because of her work.

Johnsen disliked these counseling sessions and often expressed

his anger and depression during them. But the therapist

avoided prescribing Johnsen antidepressant medication in light

of Johnsen’s history of drug abuse. These sessions caused the

therapist to believe that Johnsen suffered from dysthymic

disorder, borderline personality disorder, and major depressive

episodes. The therapist did not suspect that Johnsen suffered

from any antisocial personality disorders. At age 19, Johnsen

was once again entered into a drug treatment program.

A former director of the California Department of

Corrections testified about Johnsen’s three disciplinary reports

during his two-year pretrial detention, which included not being

dressed in time for court, not being out of jail clothes in a timely

manner, and unauthorized possession of the painkiller Motrin.

Based on Johnsen’s behavior while incarcerated, he concluded

that Johnsen would not be a danger to others if he were

sentenced to life without the possibility of parole. But he had no

answer to whether he was confident Johnsen would stop

soliciting the murder of witnesses and others from inside prison.

II. PRETRIAL ISSUES

A. Denial of Motion To Change Venue

Johnsen contends that the trial court erred in denying his

motion to change venue from Stanislaus County. According to

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Johnsen, the county’s media outlets engaged in “inflammatory

coverage” that publicized inadmissible evidence and erroneously

reported that Johnsen had “attempt[ed] to manipulate the

system and delay the trial, thereby costing the county thousands

of dollars.” He alleges that the court’s denial here deprived him

of a fair jury trial in violation of the Sixth Amendment to the

federal Constitution.

1. Background

Before trial, in November 1993, Johnsen moved for a

change of venue pursuant to section 1033. In support of his

motion, Johnsen compiled about 20 news articles pertaining to

his case and attached a survey report by Dr. Stephen J.

Schoenthaler, a criminal justice professor at California State

University, Stanislaus, which concluded that Johnsen could not

have a fair trial in Stanislaus County.

The district attorney opposed Johnsen’s motion, arguing

that Professor Schoenthaler’s survey did not even ask

interviewees the crucial question: whether they would be

willing to set aside their preexisting views and decide the case

based on evidence introduced at trial. The prosecutor’s

opposition also noted that all 35 relevant newscasts aired in

March 1992 in the weeks after Juanita’s murder and at the time

of Johnsen’s arrest — nearly two years before Johnsen’s trial

began in February 1994.

The trial court held a four-day hearing on Johnsen’s

motion. Reviewing the newscasts, the court noted that in the

aftermath of Juanita’s killing, journalists used fairly strong

language to describe the scene, characterizing it as “an awful

story,” a “tale too horrible to believe,” a “vicious and baffling

crime,” and a “brutal crime against innocent people” with “no

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motive.” On March 3, some newscasts noted a $10,000 reward

for information leading to the perpetrator’s arrest. Upon

Johnsen’s arrest, a few newscasts used photos of Johnsen as the

suspect, noting that Johnsen had been acting suspiciously.

Finally, on March 30, 1992, one newscast suggested that the

investigation into Johnsen had unearthed some evidence linking

him to the crime scene.

At the hearing, the court also considered testimony from

several experts. Professor Schoenthaler detailed his survey

findings, whose bottom-line findings purported to establish that

Johnsen could not receive a fair trial in Stanislaus County. To

conduct the survey, defense investigators randomly called

Stanislaus County phone numbers and asked 239 adult

respondents whether they had been exposed to pretrial publicity

pertaining to Johnsen’s case. The survey found that 70 percent

of respondents had already heard of Johnsen’s case, that 41

percent believed Johnsen killed Juanita, and that 60 percent

believed that Johnsen, if convicted, deserved the death penalty.

Prosecution expert Dr. Ebbe Ebbesen, a psychology

professor at University of California, San Diego, contested the

survey findings. Before Johnsen’s trial, Dr. Ebbesen had

testified in opposition to venue change motions 25 times. First,

he criticized change-of-venue surveys generally, arguing that

such studies are poor predictors of how jurors may behave at

trial. Second, Dr. Ebbesen contested the survey’s selection

methodology on the ground that the survey participants were

unrepresentative of the people who might be called for jury duty

and unrepresentative of those who might actually be selected for

the jury following voir dire. Third, Dr. Ebbesen rejected the

survey’s bottom-line conclusion in light of the questions asked,

opining that the questions did not accurately pinpoint

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respondents who had prejudged the case based on media

exposure. Finally, even taking the survey results at face value,

Dr. Ebbesen opined that 44.1 percent of residents had no

exposure to media publicity whatsoever and had no fixed view

about the case, and that less than one in four residents could

present impartiality problems in light of the case’s publicity.

After hearing from both sides, the court had “serious

doubts about the validity of the defendant’s survey.” Professor

Schoenthaler’s survey, according to the court, “was not

conducted in a manner to ensure that the respondents were

representative of the individuals who might serve on the jury for

this case,” and it failed to “ask a sufficient range and variety of

questions to provide good evidence about the meaning of the

responses.”

The court also found that based on Dr. Ebbesen’s

testimony, the survey “did not show the high numbers of persons

that were so affected that they could not be fair and impartial.”

“No more than 20 percent of the venire have knowledge and

attitudes that might prevent them from serving in a fair

manner.” The court also observed that “editorializing in both

[the defense expert’s] report and in his testimony” suggested

“some bias toward the defense.” In the end, the court credited

Professor Ebbesen’s report over Professor Schoenthaler’s

survey.

The court observed that the nature and gravity of

Johnsen’s offense supported a venue change, but that all of the

other legally relevant factors weighed in the other direction.

The court ultimately denied Johnsen’s motion, finding there was

not a reasonable likelihood that Johnsen could not receive a fair

and impartial trial in Stanislaus County. Still, the court left

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open the option for Johnsen to renew his venue change motion

if issues arose during the jury selection process. In response,

Johnsen sought a writ of mandate in the Court of Appeal, which

the court denied. (Johnsen v. Superior Court, writ petition

summarily denied Jan. 28, 1994, F020985.)

2. Discussion

The Sixth Amendment guarantees the right to “an

impartial jury.” (U.S. Const., 6th Amend.) In furtherance of

this right, California law provides that “the court shall order a

change of venue . . . [¶] . . . [o]n motion of the defendant, to

another county when it appears that there is a reasonable

likelihood that a fair and impartial trial cannot be had in the

county.” (§ 1033; see People v. Smith (2015) 61 Cal.4th 18, 39 [a

“ ‘ “reasonable likelihood” . . . “means something less than ‘more

probable than not’ ” and “something more than

merely ‘possible’ ” ’ ”].) To make this determination, the court

must consider “the nature and gravity of the offense, the nature

and extent of the media coverage, the size of the community, and

the community status of the defendant and the victim.” (Smith,

at p. 39.)

“The trial court’s essentially factual determinations such

as the gravity of the crimes, the size of the community, the

status of the defendant and victims, and the nature and extent

of the pretrial publicity, will be sustained if supported by

substantial evidence. We independently review the trial court’s

ultimate determination of the reasonable likelihood of an unfair

trial.” (People v. Cooper (1991) 53 Cal.3d 771, 806.) On appeal,

Johnsen must show both error and prejudice — i.e., it was (1)

“ ‘reasonably likely that a fair trial could not be had in’ ”

Stanislaus County at the time of his motion, and (2)

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“ ‘reasonably likely that a fair trial was not had’ ” based on voir

dire of prospective and actual jurors. (People v. Famalaro (2011)

52 Cal.4th 1, 21 (Famalaro).) Because we find no error in the

court’s denial of Johnsen’s motion to change venue, we do not

proceed to consider prejudice.

Beginning with the first factor, there is no doubt that the

nature and gravity of Johnsen’s alleged offenses — the capital

murder and attempted murder of an elderly couple while they

were asleep — are grave allegations that weigh in favor of a

venue change, as the trial court noted. (People v. Jennings

(1991) 53 Cal.3d 334, 360; People v. Hamilton (1989) 48 Cal.3d

1142, 1159.) As the press coverage highlights, people in the

community “lived in fear” after this violent home invasion and

viewed the “brutal crime against innocent people” as

particularly sensational. But because the nature and gravity of

the offenses in this case are not dispositive by themselves in

favor of a venue change (cf. Hamilton, at p. 1159 [there is no

“presumption in favor of a venue change in all capital cases”]),

we proceed to consider the other factors.

With respect to the second factor, substantial evidence

supports the trial court’s assessment that the nature and the

extent of media coverage in Johnsen’s case does not weigh in

favor of a venue change. According to Johnsen, some media

reports pertained to inadmissible evidence, hinted at Johnsen’s

confession, inaccurately reported that “detectives found a bloody

hammer, bloody tennis shoes and several of Sylvia Rudy’s

possessions in [Johnsen’s] apartment,” and were potentially

inflammatory by noting Johnsen’s possible involvement in a

different homicide and his invocation of his Fifth Amendment

right to silence. Johnsen also complains that a few articles

noted that his case had gone through several lawyers who had

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declared conflicts of interest through no fault of Johnsen’s and

that Johnsen had filed a $1 million lawsuit against one of his

former lawyers.

After reviewing all the media articles and newscasts

relating to Johnsen’s case, the court observed that there were

not so many articles pertaining to the case, approximately 30.

Even Professor Schoenthaler acknowledged that the media

publicity surrounding Johnsen’s case was “fairly moderate.”

While a few articles used strong language and speculated

beyond the facts of Johnsen’s case, the court noted that those

articles were few and far between, and the court chalked up

those discrepancies to “sensationalism . . . typical of the TV.”

Finally, given that most of the coverage occurred nearly

two years before Johnsen’s trial, the court noted that the

coverage was temporally limited and had largely subsided “over

the passage of time.” This conclusion was further bolstered by

the trial court’s observation, in response to Johnsen’s request for

additional peremptory challenges during voir dire, that few

jurors had even heard of the case. The court noted “any publicity

that [the jurors] had received was so attenuated and so long ago

that it didn’t have any effect at all.”

Substantial evidence supports the trial court’s factual

findings. Over a two-year period, there were a few dozen news

articles published about Johnsen’s case, and most were written

nearly two years prior to Johnsen’s trial. As we have recognized,

“[t]he passage of time ordinarily blunts the prejudicial impact of

pretrial publicity.” (People v. McCurdy (2014) 59 Cal.4th

1063, 1077; see People v. Bolin (1998) 18 Cal.4th 297, 314 [“the

effect of the publicity” was less “substantial . . . after an

11-month interim” between the coverage and the defendant’s

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trial]; People v. Ramirez (2006) 39 Cal.4th 398, 434 (Ramirez)

[“passage of more than a year from the time of the extensive

media coverage served to attenuate any possible prejudice”].) It

is also true that strong language appeared in some articles. But

their characterizations were not disproportionate to the facts

and circumstances of the crimes. (People v. Suff (2014) 58

Cal.4th 1013, 1048 [“ ‘Media coverage is not biased or

inflammatory simply because it recounts the inherently

disturbing circumstances of the case.’ ”].)

Moreover, the trial court took appropriate steps to avoid

prejudicial pretrial media coverage. Media reports conveying

dramatic facts that would not be admissible in court may

inflame potential jurors and render a future trial in the county

unfair. (See Williams v. Superior Court (1983) 34 Cal.3d 584,

592 [media coverage of defendant’s charges of burglary and

assault with a deadly weapon, which were later dismissed,

“could nevertheless have inflamed potential jurors”].) Prejudice

may also arise from media reports that suggest the defendant

committed the offense. (See Martinez v. Superior Court (1981)

29 Cal.3d 574, 579–580) [finding potentially prejudicial an

article discussing a witness’s invocation of the 5th Amend.

during a codefendant’s trial and describing the witness’s

admission to being defendant’s partner in charged crimes and

disposing of weapons].) Such media coverage, especially when

widespread or occurring close in time to jury selection, “can

dangerously lead to prejudgment by the reader or listener of the

news coverage” and so generally “weigh[s] heavily” in favor of

changing venue. (Williams, at p. 591.) The trial court largely

avoided such pretrial publicity by, for example, excluding the

press from the suppression hearing on Holland’s testimony and

Johnsen’s confession to Holland.

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Next, we turn to the third factor, the size of the

community. “The size of the community is important because in

a small rural community, a major crime is likely to be embedded

in the public consciousness more deeply and for a longer time

than in a populous urban area.” (People v. Coleman (1989) 48

Cal.3d 112, 134; see Rideau v. Louisiana (1963) 373 U.S. 723,

724, 726 [finding denial of venue change violated due process

where a film of the defendant admitting to various offenses aired

three times in a parish (similar to a county) with a population of

150,000 and was viewed by 24,000, 53,000, and 29,000 people];

People v. Duong (2020) 10 Cal.5th 36, 50 [“ ‘populous

metropolitan character of the community [can] dissipate[] the

impact of pretrial publicity’ ”].) The trial court found that the

size of Stanislaus County did not weigh in favor of Johnsen’s

venue change motion. The parties stipulated that at the time of

trial, the county was home to “405,000 people . . . . It’s not the

largest county in California and it’s not the smallest.” In People

v. Vieira (2005) 35 Cal.4th 264, we held that the size of

Stanislaus County alone did not weigh in favor of a venue

change at the time of another defendant’s trial in the 1990s. (Id.

at pp. 280–283 [finding that the size of Stanislaus County, with

a population of approximately 370,000 according to the 1990

census, did not compel a venue change].) When Johnsen’s trial

took place in 1994, the county’s population had risen by 35,000.

(Ibid.) In light of these data, substantial evidence supports the

court’s finding.

As for Johnsen’s social status, the court observed that

“[t]here’s no evidence that [Johnsen] was well-known in his

community or a public figure or that he grew up in Modesto and

lots of people know him, whether he went to school here or high

school or anything of that nature.” The absence of any

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reputation in Modesto renders Johnsen’s social status a

“ ‘neutral factor[].’ ” (Famalaro, supra, 52 Cal.4th at p. 23.) Nor

does the social status of the victims favor venue change.

Johnsen presented no evidence showing the Braggs were known

in Stanislaus County. In fact, the record shows that they were

Las Vegas residents who visited Rudy in Modesto for only a

week annually. Since “[n]either defendant nor the victim[] w[as]

known to the public prior to the crimes and defendant’s arrest,”

their relative obscurity properly weighed against venue change.

(Ramirez, supra, 39 Cal.4th at p. 434.)

In sum, although substantial evidence supports the trial

court’s findings that the nature and gravity of Johnsen’s crimes

favored Johnsen’s motion to change venue, all the other factors

weighed against his motion. Reviewing the legal question de

novo based on the factors above, we conclude Johnsen has not

shown a reasonable likelihood that a fair trial could not be had

in Stanislaus County at the time of his motion. The trial court

did not err in rejecting his motion.

B. Admission of Jail Informant Testimony

Johnsen alleges the incriminating statements elicited by

Holland outside the presence of Johnsen’s counsel violated his

right to counsel under the Sixth Amendment and article I,

section 15 of the California Constitution.

1. Background

Johnsen was arrested on March 26, 1992. A few days

later, on March 30, the prosecutor filed a complaint against

Johnsen, charging him with murder with special circumstances,

attempted murder, robbery, and burglary. The charges in the

information pertained exclusively to the crimes at Rudy’s home;

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none of the allegations were associated with Holloway’s death in

San Diego.

From June to August 1992, Johnsen was awaiting trial in

a jail cell adjacent to Holland’s. Holland had been previously

convicted of various forgery and counterfeiting offenses in

federal court, and he had ongoing state criminal proceedings

alleging forgery and auto theft. According to his testimony,

Holland had no prior history of “giv[ing] any information to law

enforcement officials of any type.”

Holland testified that Johnsen, while incarcerated,

solicited his fellow inmates to murder Landrum and Landrum’s

girlfriend, claiming that Landrum was framing him for

Juanita’s murder. Thinking it would “put an end” to Johnsen’s

solicitation and “get him to shut up,” Holland pretended that he

knew of a “colonel in San Diego” who would eliminate Johnsen’s

targets in return for a sizable fee. Johnsen named a list of

people he wanted the “colonel” to kill, including Landrum’s

girlfriend, mother, and uncle as well as Landrum. Johnsen also

demanded that Detective Grogan, Officer Vaugh, Thorne, and

Lee be eliminated. Johnsen outlined how he wanted them all to

be killed.

As collateral, Johnsen offered to prepare a written

confession detailing his involvement in Holloway’s murder in

San Diego. Holland initially rejected this proposal. Johnsen

then offered to reveal his involvement in the crimes at Rudy’s

home, which Holland accepted. From that point forward,

Johnsen described his crimes against the Braggs in 35 detailed

notes responding to Holland’s extensive questioning. Johnsen

eventually also told Holland about “how he ended up being

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involved in killing his girlfriend and his unborn child” a year

earlier.

Johnsen’s admissions worried Holland. Holland was

particularly perturbed by Johnsen’s lack of motive for killing the

Braggs. Johnsen told Holland he tried to kill them “because he

wanted to see if he could get away with killing somebody.”

Because of his concerns that Johnsen might “get off” and kill

others, Holland asked his attorney to convey all the information

he had learned to the district attorney. At that time, Holland

insisted he did not want “anything” in return, but he also did

not want to testify at trial because that would put him at risk

while incarcerated.

On June 26, Holland’s attorney arranged a tape-recorded

meeting with District Attorney Investigator Antone. Antone

told Holland that he understood Holland “may want to work a

deal or something along those lines.” Antone said he “was

definitely interested” in any information that Holland had to

offer and that he could guarantee Holland would not be

prosecuted for anything he disclosed. However, Antone also

clarified that the district attorney would make no promises for

Holland’s cooperation. Holland disclosed details to Antone

about the crimes at Rudy’s home, including Johnsen’s motive for

killing Juanita and Johnsen’s solicitation of fellow inmates.

Antone reminded Holland, “I’m not asking you to be a police

agent and do these things for me,” to which Holland responded:

“Oh, I do this on my own.”

Holland then told Antone that Johnsen had mentioned

being involved in a San Diego murder last year and that he

expected Johnsen to reveal his role in that crime later that

evening. Antone emphasized it was up to Holland whether he

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decided to inquire into the San Diego murder, saying, “I don’t

want get [sic] anything construed . . . where at some point in

time you come back and says, well I only did it for, cause Antone,

you know . . . said it would be okay.” Holland acknowledged that

he was not planning to ask Johnsen on behalf of the district

attorney and that he just wanted to know he would not be

prosecuted for lying to Johnsen. Antone confirmed that the

district attorney would not prosecute him for lying to Johnsen.

On July 3, Holland met with Antone without counsel. At

this tape-recorded meeting, Holland wanted assurances that a

leniency deal would be forthcoming. Antone explained that the

process of even arranging such a deal would require

coordination between multiple counties given the charges

pending against Holland, and Antone refused to say if any deal

was in the works. Holland told Antone he had convinced

Johnsen to write several incriminating notes, and Holland was

confident he could persuade Johnsen to prepare a signed

confession detailing “exactly what happened” at Rudy’s home.

Holland insisted that if he were to hand over that information

to convict Johnsen, it would only be used if he got a deal. Antone

left the room to confer with the deputy district attorney. Upon

his return, Antone refused to enter into any agreement, even

with a signed written confession.

In August, Holland called Antone to tell him that Johnsen

had accused Holland of being a snitch. To protect Holland from

potential retribution, the district attorney arranged for Holland

to be moved from the Stanislaus County jail to the San Joaquin

County jail.

By September, Holland refused to testify because the

district attorney had still not committed to any leniency

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agreement. After learning that they had secured a warrant to

search his jail cell, Holland promised to testify at trial about his

jailhouse conversations with Johnsen, all the notes they

exchanged, as well as Johnsen’s written confessions. On

September 4, Holland’s jail cell was searched; all of Johnsen’s

notes, including his confessions, and Holland’s handwritten

copies were confiscated and booked into evidence. Holland had

originally prepared “word for word” copies of Johnsen’s notes so

he could show Antone the useful information contained therein

without handing over Johnsen’s actual confessions until he

received a deal.

Before trial, Johnsen moved to suppress Holland’s

testimony, alleging that Holland was a government agent under

Antone’s direction and elicited inculpatory statements from

Johnsen about his arraigned offenses in violation of the Sixth

Amendment. During the suppression hearing, the court asked

Holland if “anyone from law enforcement t[old him] to continue

to gather information from [Johnsen].” Holland replied:

“Never.” Holland emphasized, “No one ever asked me to get

information on anything. I did this all on my own.”

In the end, the court observed, “Antone indicated he was

interested” in what Holland had to share regarding Johnsen’s

case, but he never “instruct[ed] [Holland] to elicit the

information” and he never promised anything in return.

Finding that neither of Holland’s meetings with Antone on June

26 and July 3 rendered him a government agent under the Sixth

Amendment, the court denied Johnsen’s motion to suppress.

Given their comprehensive detail, Holland’s testimony and the

incriminating notes Johnsen prepared became the cornerstone

of the prosecution’s case. After trial, the district attorney

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arranged for Holland’s state sentence to run concurrently with

his federal sentence.

2. Discussion

The Sixth Amendment to the United States Constitution

guarantees the assistance of counsel during all stages of a

criminal prosecution. In Massiah v. United States (1964) 377

U.S. 201, the high court held that once a defendant has been

charged with any crime, any “government agent[]” who elicits

incriminating statements from a defendant regarding that

crime outside the presence of counsel violates this protection.

(Id. at p. 206.) Statements made under such conditions “are

inadmissible at a trial on the charges to which the statements

pertain.” (People v. Dement (2011) 53 Cal.4th 1, 33, overruled

on other grounds in People v. Rangel (2016) 62 Cal.4th 1192.)

This prohibition on government agents applies equally to law

enforcement officers and private persons enlisted by the

government to elicit incriminating statements. “[T]he primary

concern of the Massiah line of decisions is secret interrogation

by investigatory techniques that are the equivalent of direct

police interrogation.” (Kuhlmann v. Wilson (1986) 477 U.S. 436,

459.)

“A trial court’s ruling on a motion to suppress informant

testimony is essentially a factual determination, entitled to

deferential review on appeal.” (People v. Coffman & Marlow

(2004) 34 Cal.4th 1, 67 (Coffman).) To prevail, Johnsen must

show “ ‘that the informant (1) was acting as a government agent,

i.e., under the direction of the government pursuant to a

preexisting arrangement, with the expectation of some resulting

benefit or advantage, and (2) deliberately elicited incriminating

statements.’ ” (Ibid.; see In re Wilson (1992) 3 Cal.4th 945, 950.)

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“Circumstances probative of an agency relationship include the

government’s having directed the informant to focus upon a

specific person, such as a cellmate, or having instructed the

informant as to the specific type of information sought by the

government.” (In re Neely (1993) 6 Cal.4th 901, 915 (Neely).)

Johnsen argues that the court erred in denying his motion

to suppress Holland’s testimony. He claims that Holland was

acting as a government agent as early as his June 26 meeting

with Antone and thus the Sixth Amendment demands

suppression of any information Holland exacted from Johnsen,

including his 14-page signed, written confession. There is no

question that Holland “ ‘deliberately elicited incriminating

statements’ ” (Coffman, supra, 34 Cal.4th at p. 67) from

Johnsen, so the merits of Johnsen’s claim turn on whether

Holland was in fact acting as a government agent when he

elicited Johnsen’s confession. We conclude he was not.

“Where the informant is a jailhouse inmate, the [agent

prong of the] test is not met where law enforcement officials

merely accept information elicited by the informant-inmate on

his or her own initiative, with no official promises,

encouragement, or guidance.” (Neely, supra, 6 Cal.4th at

p. 915.) Although Johnsen argues that Antone encouraged

Holland to elicit more incriminating information, his argument

has no basis in the record before us. Holland testified that he

primarily told his attorney about Johnsen’s confessions because

he was worried that Johnsen would avoid prosecution and

continue to murder others, not because of any desire to negotiate

a more lenient sentence for himself. During his June 26 meeting

with Antone, Holland was repeatedly informed that the district

attorney would accept any useful information Holland had to

offer about Johnsen’s case but would not make any promises of

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leniency. (People v. Williams (1988) 44 Cal.3d 1127, 1141 [“a

general policy of encouraging inmates to provide useful

information does not transform them into government agents”].)

While it is clear that early on Holland recognized

Johnsen’s confessions were sufficiently valuable that they could

be leveraged into some deal, Holland also understood he was

eliciting Johnsen’s confessions “on [his] own” initiative without

external direction, guidance, or encouragement. Holland

acknowledged this when he told Antone, “I do this on my own,”

and again when he testified in court, “I did this all on my own.”

(See People v. Fairbank (1997) 16 Cal.4th 1223, 1247 [“If an

informant ‘acts on his own initiative,’ even if he interrogates the

accused, ‘the government may not be said to have deliberately

elicited the statements.’ ”].) In addition, after each meeting with

Antone, Holland signed a form clarifying that Holland received

nothing in return for his disclosures. And unlike a repeat

informant, Holland had never given authorities information

about another inmate, so there is no indication that Holland was

working under a preexisting agreement or continuing practice

of collaboration with law enforcement. (See, e.g., United States

v. Henry (1980) 447 U.S. 264, 270, fn. 7.)

As the trial court acknowledged, Holland was likely

motivated in part by “some self-interest . . . in working a deal for

himself.” Likewise, Antone’s instruction that Holland should

not consider himself a police agent “can be deemed as

self-serving.” For this reason, Antone’s statements that Holland

acted on his own do not, by themselves, establish that no agency

relationship existed. (See Coffman, supra, 34 Cal.4th at p. 67

[noting that a preexisting agreement “need not be explicit or

formal”]; Rest.3d Agency, § 1.02 com. a, p. 50 [“Although agency

is a consensual relationship, how the parties to any given

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relationship label it is not dispositive. Nor does party

characterization or nonlegal usage control whether an agent has

an agency relationship . . . .”].) Rather, we take into account the

totality of the circumstances, including the possibility that

attempts to disclaim agency may be self-serving. The trial court

considered this possibility and weighed it against Holland’s

“testimony and demeanor,” which suggested he was “ethically

motivated.” The court also noted that an agency theory

appeared inconsistent with Holland’s refusal to “give [Antone]

the information” and the need “to serve a search warrant to get

it.” The court reasonably concluded that “based on the totality

of the circumstances in this case” and “focusing on the state’s

conduct as a whole,” Holland did not act as a government agent.

The fact that Holland ultimately received leniency in

return for the information he elicited did not transform him into

a government agent because the district attorney did not offer a

leniency deal or even say a deal was in the works until

September, months after Johnsen had made his incriminating

statements to Holland. Although the district attorney did

appear to be back-channeling with other prosecutors’ offices to

work out a potential deal, there is no evidence that Holland was

aware of such discussions aside from Antone’s brief comment

that a deal of that magnitude would require significant

coordination between various district attorneys’ offices. We

conclude Holland was not acting as a government agent and that

the court did not err when it admitted Holland’s testimony about

Johnsen’s incriminating statements pertaining to his crimes at

Rudy’s home.

In addition, Johnsen challenges Holland’s efforts to elicit

inculpatory statements regarding his role in Holloway’s death.

This claim also lacks merit. At the time Holland elicited these

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incriminating statements, Johnsen had not been charged with

or arraigned on any crimes associated with Holloway’s death.

The Sixth Amendment protects a defendant’s right to counsel on

arraigned charges, not unarraigned offenses. (Kirby v. Illinois

(1972) 406 U.S. 682, 688–689.) Even assuming the Sixth

Amendment applied, we find no violation. As discussed,

Holland elicited all of the incriminating information about

Holloway’s death from Johnsen on his own accord as a private

citizen, not as a government agent.

III. GUILT PHASE

A. Alleged Instructional Errors

Johnsen argues the trial court committed reversible error

by failing to instruct the jury sua sponte on various jury

instructions with respect to Landrum’s testimony. In

particular, Johnsen asserts that because Landrum was an

accomplice to Johnsen’s crimes, the trial court should have

advised the jury with CALJIC No. 3.10 [definition of

accomplice]; CALJIC No. 3.11 [corroboration requirement];

CALJIC No. 3.18 [accomplice testimony should be viewed with

distrust]; and CALJIC No. 8.83.3 [corroboration requirement for

special circumstances]. He also challenges the court’s decision

to grant defense counsel’s request for the jury to be instructed

with CALJIC No. 2.11.5 [limitation on discussing why

coparticipant is not being prosecuted] as well as the court’s

refusal to give certain special instructions. According to

Johnsen, these instructional errors violated his rights under the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution; article I, sections 7, 15, and 16 of the California

Constitution; and California law.

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1. Accomplice Testimony and Corroboration

Section 1111 bars any conviction predicated on “testimony

of an accomplice unless it [is] corroborated by such other

evidence as shall tend to connect the defendant with the

commission of the offense.” An accomplice is “one who is liable

to prosecution for the identical offense charged against the

defendant on trial in the cause in which the testimony of the

accomplice is given.” (Ibid.) “To be chargeable with an identical

offense, a witness must be considered a principal under section

31.” (People v. Lewis (2001) 26 Cal.4th 334, 368–369 (Lewis); see

§ 31 [defining “principal”].) In other words, there must be

evidence of that person’s “guilt . . . based on a combination of the

direct perpetrator’s acts and the aider and abettor’s own acts

and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111,

1117, italics omitted.)

Only when there is “substantial evidence that a witness

who has implicated the defendant was an accomplice” must the

trial court instruct on “the principles regarding accomplice

testimony.” (People v. Houston (2012) 54 Cal.4th 1186, 1223; see

Lewis, supra, 26 Cal.4th at p. 369 [“Substantial evidence is

‘evidence sufficient to “deserve consideration by the jury.” ’ ”].)

“ ‘But if the evidence is insufficient as a matter of law to support

a finding that a witness is an accomplice, the trial court may

make that determination and, in that situation, need not

instruct the jury on accomplice testimony.’ ” (People v. Gonzales

and Soliz (2011) 52 Cal.4th 254, 302.)

The Attorney General contends there is minimal evidence

Landrum aided and abetted Johnsen’s offenses. According to

the Attorney General, Landrum was merely an accessory to

Johnsen’s crimes — i.e., a “person who, after a felony has been

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committed, harbors, conceals or aids a principal in such felony,

with the intent that said principal may avoid or escape from

arrest, trial, conviction or punishment, having knowledge that

said principal has committed such felony or has been charged

with such felony or convicted thereof . . . .” (§ 32.) Because an

accessory is not “liable to prosecution for the identical offense

charged against the defendant on trial,” an accessory’s

testimony does not implicate section 1111. (§ 1111; see People

v. Horton (1995) 11 Cal.4th 1068, 1113–1114.)

We agree that the trial court did not err by declining to

give accomplice instructions. The trial evidence was

overwhelmingly oriented toward the theory that Johnsen

committed the crimes alone. As noted, the jury heard testimony

that Landrum was at Johnsen’s home the evening before the

March 1 crimes and that Landrum drove to his mother’s home

around 9:00 p.m. and spent the night there. Landrum also

explained how he came to briefly possess the property taken

from Rudy’s home — namely, Johnsen phoned him from the jail

and told him to dispose of the stolen property, which Johnsen

had stored in his own home. Landrum further testified that

Johnsen tossed Rudy’s key and a ball peen hammer out the car

window on their drive to San Jose. He also disavowed

participating in any of the crimes in Rudy’s home, including the

February burglary where Johnsen tried to enlist Landrum into

stealing Rudy’s television with him.

Lee also explained how Landrum’s mother took possession

of Rudy’s stolen property after Johnsen frantically dropped off a

paper bag with the stolen goods at Lee’s apartment. The jury

heard Thorne’s testimony, in which he described notes from

Johnsen instructing him to frame Landrum for the crimes at

Rudy’s home. Although Johnsen accused Landrum of

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participating in his crimes at Rudy’s home in his earliest two

accounts to Holland, Johnsen later admitted that he was solely

responsible. Most importantly, Johnsen’s 14-page handwritten

and signed confession was admitted into evidence alongside

Holland’s testimony that Johnsen eventually conceded that he

had committed all of the crimes on his own.

In the end, the only evidence at trial that potentially

connected Landrum to the March 1 crimes were Johnsen’s

earliest statements to Holland attempting to frame Landrum,

which he later retracted, and conflicting witness testimony

about whether Landrum had a bandage on his hand on March

1. Landrum testified against Johnsen pursuant to a grant of

immunity on these accessory offenses. He was never charged or

convicted of any principal offenses associated with the crimes

that took place in Rudy’s home. We therefore conclude that

Johnsen’s claim that the court failed to instruct the jury to view

Landrum’s testimony with skepticism lacks merit.

2. CALJIC No. 2.11.5 and Special Jury Instruction

No. 28

Before trial, Johnsen’s counsel moved to have the jury

instructed on CALJIC No. 2.11.5 and special instruction No. 28.

CALJIC No. 2.11.5 advises the jury to neither discuss nor

consider why other individuals are not also being prosecuted.

special instruction No. 28 would have modified CALJIC No.

2.11.5 to “permit the jurors to consider evidence of ‘the guilt of

any other person’ in determining whether there was reasonable

doubt of the appellant’s guilt.” At the time of Johnsen’s request,

the court briefly considered the special instruction in

conjunction with CALJIC No. 2.11.5 and observed that the

relevance of the special instruction would depend on how

Johnsen presented his theory of the case. Accordingly, the court

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placed the special instruction in its “possible” file for

consideration “[d]epending on how the argument goes.”

After closing arguments, the court instructed the jury

using the unmodified version of CALJIC No. 2.11.5 at the

request of Johnsen’s counsel. Johnsen did not reintroduce his

request for special instruction No. 28, and the court did not

revisit it or rule on it one way or another. The court scribbled

on the special instruction that it had been “[g]iven elsewhere.”

On appeal, Johnsen now contends that the trial court erred both

by providing CALJIC No. 2.11.5 and by refusing to provide

special instruction No. 28.

Johnsen begins by arguing that he did not forfeit his

CALJIC No. 2.11.5 claim by requesting the instruction and by

not asking the court to limit its application. Even assuming

Johnsen’s argument was not forfeited, we find that the

instruction was not erroneous. It is well established that

CALJIC No. 2.11.5 “should be clarified or not given when a

nonprosecuted participant testifies at trial.” (People v. Crew

(2003) 31 Cal.4th 822, 845 (Crew).) Whether a person “ ‘was or

may have been involved in the crime[s]’ for the purposes of

CALJIC No. 2.11.5 is a ‘separate issue’ [citation] from . . .

whether [he or she] was an accomplice.” (People v. Williams

(1997) 16 Cal.4th 153, 226.) On the other hand, this instruction

“is not error when it is given together with other instructions

that assist the jury in assessing the credibility of witnesses.”

(Crew, at p. 845)

The Attorney General observes that in Crew, we upheld a

conviction where the jury was instructed with CALJIC No.

2.11.5 because the jury also received instructions to consider

“any evidence of witness credibility, including the existence or

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nonexistence of a bias, interest, or other motive (CALJIC No.

2.20), and to consider the instructions as a whole (CALJIC No.

1.01).” (Crew, supra, 31 Cal.4th at p. 845.) Further, during

closing arguments in Crew, defense counsel raised the

unprosecuted coparticipant’s immunity agreement as a ground

to discount his testimony. (Ibid.) Given these considerations,

we concluded in Crew that the trial court’s inclusion of CALJIC

No. 2.11.5 was not error.

Similar circumstances were present here. Not only was

the jury advised with both CALJIC No. 2.20 and CALJIC No.

1.01, but Johnsen’s counsel also warned the jury during closing

arguments that “Mr. Landrum has been given immunity from

prosecution for stolen property and drug offenses. This is some

evidence of motive of bias to testify in this case.” Moreover, the

defense’s case largely rested on the theory that Landrum, not

Johnsen, committed the crimes at Rudy’s home. Central to this

theory were Johnsen’s efforts to show Landrum’s mother was

Landrum’s only alibi the night of February 29 and the morning

of March 1, and that he variously handled the goods taken from

Rudy’s home. At the same time, the defense sought to

undermine Landrum’s credibility by (1) arguing his testimony

was unreliable because he had ingested “crank” the night before

and (2) introducing testimony that Landrum had a bandaged

wound on his hand during the Johnsens’ move on March 1. As

a result, notwithstanding CALJIC No. 2.11.5, the jury received

other instructions to assist them in evaluating Landrum’s

credibility as a nonprosecuted coparticipant. Consequently,

Johnsen’s claim lacks merit.

Johnsen has also failed to establish instructional error

with respect to special instruction No. 28. There is no precedent

that compels the trial court to instruct the jury specifically on

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the reasonable doubt standard in the context of third party

culpability when the jury has already received a general

instruction on the reasonable doubt standard. (See People v.

Gutierrez (2009) 45 Cal.4th 789, 825 [“because the jury could

have acquitted defendant had it believed that a third party was

responsible for [the victim’s] death, no third party culpability

instruction was necessary”].)

3. Special Jury Instruction No. 14

Johnsen also challenges the court’s denial of related

defense-requested instructions, which he asserts “were

necessary to guide the jury’s consideration of Landrum’s

testimony” and of third party culpability.

Special instruction No 14 read: “The testimony of a

witness who provides evidence against a defendant for

immunity from punishment, or for any other personal

advantage, must be examined to determine whether this

testimony has been affected by the grant of immunity, by

personal interest, by expectation of reward, or by prejudice

against the defendant.” In denying special instruction No. 14,

the court found that it would be duplicative of CALJIC No. 2.20.

As noted, CALJIC No. 2.20 permits the jury to consider any

evidence of witness credibility, including “[t]he existence or

nonexistence of a bias, interest, or other motive.” (CALJIC No.

2.20.) The Attorney General reiterates special instruction No.

14 would have been redundant. We agree. Having been

instructed with CALJIC No. 2.20, the jury was already aware

that it could consider any “bias, interest, or other motive” in

assessing witness credibility, including a grant of immunity.

Johnsen claims our reasoning in People v. Hunter (1989)

49 Cal.3d 957 supports his position. But in Hunter, we found no

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error in the court’s refusal to instruct the jury to view an

immunized witness’s testimony with “ ‘greater care and caution’

than the ‘testimony of an ordinary witness.’ ” (Id. at p. 976.) “No

California authority supports [Johnsen’s] contention that an

immunized witness, unlike an informant, is so analogous to an

accomplice that a trial court must, upon request, give cautionary

instructions as to the trustworthiness of immunized witness

testimony.” (Id. at p. 977.)

B. DNA Evidence Chain of Custody

Johnsen contends the trial court improperly rejected his

motion to exclude the expert testimony of molecular biologist

Julie Cooper. During trial, Cooper testified about her analysis

of DNA extracted from hair found on pantyhose in Rudy’s home.

Before Cooper analyzed the hair, it was accidentally broken into

two hair fragments at the Department of Justice’s crime lab in

Modesto. On appeal, Johnsen asserts the trial court abused its

discretion by finding that the hair’s chain of custody had been

established with reasonable certainty.

1. Background

Several prosecution witnesses testified regarding the

hair’s chain of custody from its initial discovery until the point

where the DNA analysis dissolved it. Detective Buehler first

discovered a pair of pantyhose on an armchair in Rudy’s living

room. The pantyhose were delivered to the state Department of

Justice’s lab in Modesto. There, criminalist Dr. Richard Lynd

discovered a single four-inch blond hair inside. Through

microscopic analysis, Dr. Lynd concluded the hair came from a

Caucasian person’s head, which may have been Johnsen’s, given

similarities in color, length, texture, and microscopic

characteristics. Dr. Lynd’s analysis ruled out Juanita, Rudy,

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and Landrum as possible sources of the hair. Later, the hair

was brought to a Stockton lab, where it was analyzed. The

criminalist sealed the hair in a plastic petri dish with tape and

returned it to the Modesto lab.

On June 3, 1992, Dr. Lynd unsealed the petri dish to

photograph the hair. While doing so, he found the hair “taped

to the plastic container.” In his efforts “to get [the hair] out,” Dr.

Lynd inadvertently “broke the hair in two pieces.” He

photographed the evidence on a slide and returned it to storage.

Two weeks later, Dr. Lynd retrieved the evidence to take

another round of photographs. He then “removed the hair from

the slide, rinsed the mounting media off of the hair and

packaged it for shipping for the DNA analysis.” Dr. Lynd did

not normally wear a mask, hairnet, or gloves while working.

On June 22, 1992, Detective Bill Grogan transported the

hair evidence to Cellmark Diagnostics, a DNA testing lab.

Cooper, a Cellmark molecular biologist, opened the container to

find “two very fine blond hairs” and “nothing else.” Cooper

testified that she “did not examine both ends of both pieces of

hair [with] more than just a quick glance,” but she thought “at

least one of those hairs did have an end which looked thicker

and could have been a pulled root.”

Three months later, Cooper again visually examined the

hair. She noticed that the “[t]wo pieces of hair . . . looked like

they had an end that breathed out a bit which, from my

experience, I know that hairs usually with a root, that’s the

fatter end.” She said she was simply making a lay observation

because Cellmark is “not a hair analyzing laboratory.” She

clipped what appeared to be the fatter ends off the hair and

placed them into a single tube for PCR analysis. This process

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consumed the hair pieces altogether. As a result, the jury heard

Cooper’s testimony on the results of her DNA analysis, but the

hair fragments were never admitted into evidence at trial.

Upon hearing Cooper’s testimony, Johnsen’s counsel did

not move to strike her findings based on inadequate chain of

custody or on any other ground. After hearing testimony on the

hair’s chain of custody, the court credited Dr. Lynd’s explanation

that he accidentally broke a single hair into two when

extricating it from the tape as adequate justification for the two

hair pieces. The court also noted that Cooper’s subsequent

impression that “there were two hairs [that] both had roots” was

easily explained because her perception was based on mere

visual observation that both hairs “looked like they had an end

that breathed out a bit” without actually confirming that they

were in fact root ends. The court accepted Cooper’s assertion

that she “never looked at [the hairs] closely.” In the end, the

court found there was only “bare speculation that it’s not the

same hair” and that the speculation should bear on the weight

of the evidence, not admissibility.

2. Discussion

Johnsen argues that the apparent presence of root ends on

both hairs is a “critical anomaly” and “indicat[es] that the hair

evidence had been altered either by contamination or by

substitution/addition of one or both of the hair fragments.” The

crux of Johnsen’s claim is that it is factually impossible to break

a single hair with one root end into two hairs each with root

ends. Given this, Johnsen complains that the presence of two

hairs each with root ends is clear evidence of tampering.

Although Johnsen’s counsel expressed general concerns

about the hair’s chain of custody at trial, Johnsen never objected

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to Cooper’s testimony on the record before or after it was

introduced. Thus, the Attorney General asserts, Johnsen’s

claim is forfeited. Johnsen concedes that the record does not

show his counsel moved to strike Cooper’s testimony at any

point. Nevertheless, Johnsen asserts his trial counsel rendered

ineffective assistance (1) by eliciting testimony from Cooper

reiterating that Johnsen’s DQ-Alpha type matched the blond

hair found in the pantyhose and (2) by failing to have Cooper’s

testimony stricken altogether.

Even assuming Johnsen’s claim is not forfeited, we reject

it on the merits. We clarified in People v. Riser (1956) 47 Cal.2d

566 (Riser), that “the party relying on an expert analysis of

demonstrative evidence must show that it is in fact the evidence

found at the scene of the crime, and that between receipt and

analysis there has been no substitution or tampering . . . .” (Id.

at p. 580.) There, we “set[] forth the rules for establishing chain

of custody: ‘The burden on the party offering the evidence is to

show to the satisfaction of the trial court that, taking all the

circumstances into account including the ease or difficulty with

which the particular evidence could have been altered, it is

reasonably certain that there was no alteration. [¶] The

requirement of reasonable certainty is not met when some vital

link in the chain of possession is not accounted for, because then

it is as likely as not that the evidence analyzed was not the

evidence originally received. Left to such speculation the court

must exclude the evidence. [Citations.] Conversely, when it is

the barest speculation that there was tampering, it is proper to

admit the evidence and let what doubt remains go to its

weight.’ ” (People v. Diaz (1992) 3 Cal.4th 495, 559 (Diaz).)

The trial court acted within its discretion when it held the

district attorney had properly accounted for the hair’s chain of

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custody and thus Cooper’s testimony offered only “the barest

speculation that there was tampering.” (Riser, supra, 47 Cal.2d

at p. 581.) By furnishing firsthand testimony from Dr. Lynd

that he accidentally broke one hair into two pieces at the

Modesto lab, the prosecution made “at least a prima facie

showing that the evidence had not been tampered with,” at least

not in any way that could alter the subsequent forensic analysis.

(People v. Williams (1989) 48 Cal.3d 1112, 1135.) Aside from

Cooper’s testimony that she may have seen two root ends, there

is no evidence supporting Johnsen’s theory that the hair was

tampered with. The trial court properly held that testimony

about the hair was admissible and that the discrepancies, if any,

raised by Cooper’s visual perception go to the weight of that

evidence. (Diaz, supra, 3 Cal.4th at p. 559.)

C. Alleged Error in Stating Reasonable Doubt

Standard

Johnsen alleges that statements made by the prosecution

and defense diluted the reasonable doubt standard and shifted

the burden of proof to Johnsen. He complains that this error

violated his Fifth, Sixth, Eighth, and Fourteenth Amendment

rights and corresponding rights in the state Constitution.

1. Background

In his opening argument, the district attorney recited the

jury instruction defining reasonable doubt (CALJIC No. 2.90),

and he then informed the jury:

“[H]aving that definition which the Court will

read to you in mind, you can see that reasonable

doubt doesn’t mean a mere possible doubt. It does

not mean proof to an absolute certainly [sic] and it

doesn’t mean proof beyond a shadow of a doubt.

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“I’m going to suggest to you that, based on this

definition of reasonable doubt, if any one of you feels

that he or she might have a reasonable doubt, he or

she should be able to do three things. One, they

should be able to put the doubt into words; two, they

should be able to point to something in the evidence

that makes them have that doubt; and, three, that

juror should be able to convince his or her fellow

jurors that the doubt is reasonable.

“If you can’t do all three of these things then I

suggest to you, ladies and gentlemen, the doubt that

you are contemplating is the imaginary or mere

possible doubt that is referred to in the Court’s

instruction.”

Johnsen’s counsel did not object at the time to the

prosecution’s characterization of the reasonable doubt standard.

During closing argument, however, defense counsel

directly confronted the prosecutor’s opening comments:

“[The prosecutor] talked about a method to decide

whether or not any doubt that you might have on

any particular fact is reasonable.

“And I agree with the first two steps that he said

to take, and that number one step is articulate the

doubt. If you have a doubt that you can talk about,

if you can put it into words, if you can articulate it,

it may be reasonable doubt. If you can point to a

particular piece of evidence to support that doubt

and say, “I don’t feel good about this evidence and it

makes me doubt which it’s offered to prove,” those

are two steps that you should do.

“However, [the prosecutor] is wrong on the third

step. You’re not required and you don’t need to be

able to convince your fellow jurors regarding

whether or not the doubt is reasonable. Your job is

not to convince others. Your job is to deliberate.

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Your job is to deliberate and decide in your own mind

whether each piece of evidence is reasonable,

whether it’s unreasonable, what it means, what it

doesn’t mean. And if you have doubt, you’re entitled

to retain that doubt and to consider it a reasonable

doubt, even though you cannot convince another

juror or the rest of your fellow jurors about that

particular issue.

...

“I can’t articulate for you or I can’t say for you

what is reasonable and what is unreasonable but I

think if you can state it in your mind, if you can talk

about it to someone else and point to a piece of

evidence that you think is crucial and critical to the

prosecution’s case that you have a doubt about, that

creates in your mind a doubt which is reasonable,

and you can talk about[,] then you have not been

convinced beyond a reasonable doubt, to a moral

certainty.

“It’s not necessary, as I said before, it’s not

necessary that you’re able to convince anybody else

in this jury. Your duty is to deliberate, which means

to discuss, listen with an open mind, state your

opinion, listen to other people’s opinions. But if you

believe something to be such that it creates a doubt

in your mind and you can’t get rid of that doubt then

you don’t have to change your mind. You’re entitled

to maintain that opinion as long as you deliberate

fairly.”

During his rebuttal, the prosecutor clarified:

“Reasonable doubt is the burden of proof which

the People shoulder. And the operative word is

‘reasonable.’ If you don’t have any method of

assessing whether or not any doubt that you have is

reasonable or unreasonable, then the instruction is

meaningless. The concept is useless.

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“And you have to test the reasonableness of any

doubt. And one of the ways you do that is to discuss

any perceived doubt with your fellow jurors, put it

into words, test it, and see if anybody else agrees

with you that that is a reasonable doubt. That’s how

you test it. There’s no other way to assess any doubt.

There’s no way to tell whether a doubt is fanciful,

imaginary, or just a mere possible doubt.”

After closing arguments, the court instructed the jury with

CALJIC No 2.90. As given, the instruction provided:

“A defendant in a criminal action is presumed to

be innocent until the contrary is proved, and in the

case of a reasonable doubt whether guilt is

satisfactorily shown, the defendant is entitled to a

verdict of not guilty. This presumption places upon

the People the burden of proving the defendant’s

guilt beyond a reasonable doubt.

“Reasonable doubt is defined as follows: It is not

a mere possible doubt because everything relating to

human affairs and depending on moral evidence is

open to some possible or imaginary doubt. It is the

state of the case which, after the entire comparison

and consideration of all the evidence, leaves the

mind of the jurors in that condition that they cannot

say they feel an abiding conviction to a moral

certainty of the truth of the charge.”

The court also instructed the jury with CALJIC No. 17.40.

As given, that instruction provided:

“The People and the defendant are entitled to the

individual opinion of each juror.

“Each of you must consider the evidence for the

purpose of reaching a verdict if you can do so. Each

of you must decide the case for yourself, but should

do so only after discussing the evidence and

instructions with the other jurors.

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“Do not hesitate to change an opinion if you are

convinced it is wrong. However, do not decide any

question in a particular way because a majority of

the jurors, or any of them, favor such a decision.”

2. Discussion

As an initial matter, the Attorney General argues that

Johnsen forfeited his challenge to the alleged misconduct. “It is

well settled that making a timely and specific objection at trial,

and requesting the jury be admonished (if jury is not waived), is

a necessary prerequisite to preserve a claim of prosecutorial

misconduct for appeal.” (People v. Seumanu (2015) 61 Cal.4th

1293, 1328 (Seumanu).) Johnsen did not object to the district

attorney’s characterization of the reasonable doubt standard.

While failure to object would not forfeit his claim when doing so

would have been futile or an admonition would be insufficient to

cure the purported harm, the record does not suggest that a

timely objection would be futile or insufficient. (People v.

Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) Thus, Johnsen

has forfeited this challenge on appeal.

Johnsen claims that his counsel rendered ineffective

assistance by failing to object. To demonstrate ineffective

assistance of counsel, Johnsen “must show that counsel’s

performance was deficient, and that the deficiency prejudiced

the defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521, citing

Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)

On direct appeal, a finding of deficient performance is

warranted where “(1) the record affirmatively discloses counsel

had no rational tactical purpose for the challenged act or

omission, (2) counsel was asked for a reason and failed to

provide one, or (3) there simply could be no satisfactory

explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

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“[W]here counsel’s trial tactics or strategic reasons for

challenged decisions do not appear on the record, we will not

find ineffective assistance of counsel on appeal unless there

could be no conceivable reason for counsel’s acts or omissions.”

(People v. Weaver (2001) 26 Cal.4th 876, 926.)

We have said that “the decision . . . whether to object to

comments made by the prosecutor in closing argument is a

highly tactical one.” (People v. Padilla (1995) 11 Cal.4th 891,

942.) Instead of registering a contemporaneous objection,

defense counsel appears to have made a tactical choice to

undermine the prosecutor in his own closing remarks. In

Centeno, we held that there was “no reasonable tactical purpose”

for defense counsel’s failure to object to the prosecutor’s use of

an improper hypothetical that was reasonably likely to have

misled the jury regarding the reasonable doubt standard.

(Centeno, supra, 60 Cal.4th at p. 676.) The prosecutor in

Centeno mischaracterized the reasonable doubt standard for the

first time during rebuttal arguments. By contrast, the

prosecutor in this case made nearly identical misstatements

during both his opening and rebuttal arguments. Defense

counsel may have made a strategic decision to rely on the

counterarguments he had already made during his closing

statement rather than objecting to the prosecutor’s rebuttal

statements. Such a tactical choice was not objectively

unreasonable under Strickland, supra, 466 U.S. 668.

Even assuming Johnsen did not forfeit the claim of

prosecutorial misconduct, his allegations do not warrant

reversal. To determine whether a prosecutor has committed

reversible misconduct in this context, we examine (1) whether it

was reasonably likely that the prosecutor’s statements misled

the jury on reasonable doubt and (2) whether there is “a

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reasonable probability that the prosecutor’s argument caused

one or more jurors to convict defendant based on a lesser

standard than proof beyond a reasonable doubt.” (Centeno,

supra, 60 Cal.4th at pp. 674, 677.)

We find that the prosecutor’s statements were reasonably

likely to mislead the jury. As to the prosecutor’s statement that

the reasonable doubt standard requires jurors “to point to

something in the evidence that makes them have that doubt,”

we found a similar mischaracterization to be misconduct in

People v. Hill (1998) 17 Cal.4th 800 (Hill). There, the prosecutor

“addressed the concept of reasonable doubt, stating: ‘it must be

reasonable. It’s not all possible doubt. Actually, very simply, it

means, you know, you have to have a reason for this doubt. There

has to be some evidence on which to base a doubt.’ ” (Id. at p. 831,

first italics added.) Over a defense objection, the court allowed

the prosecutor to continue, at which point she informed the jury:

“ ‘There must be some evidence from which there is a reason for

a doubt. You can’t say, well, one of the attorneys said so.’ ”

(Ibid., italics added by Hill.) While we observed those remarks

were “somewhat ambiguous,” (ibid.) we concluded that the

prosecutor had engaged in misconduct because it was

“reasonably likely” the jury understood this comment “to mean

defendant had the burden of producing evidence to demonstrate

a reasonable doubt of his guilt” (id. at p. 832). We ultimately

reversed Hill’s judgment due to a litany of misconduct, including

error in diluting the reasonable doubt standard. (Id. at p. 815.)

Here, as in Hill, it is reasonable to construe the

prosecutor’s remarks — “[t]here has to be some evidence on

which to base a doubt” — to preclude jurors from having

reasonable doubt solely based on the insufficiency of the

prosecution’s evidence. (See Hill, supra,17 Cal.4th at p. 832;

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People v. Young (2005) 34 Cal.4th 1149, 1195–1196 [prosecutor

“may not suggest that ‘a defendant has a duty or burden to

produce evidence, or a duty or burden to prove his or her

innocence’ ”].) The prosecutor’s remarks also erroneously

suggest that a juror is precluded from considering factors such

as common sense and life experience to form a reasonable doubt.

The fact that defense counsel not only did not object to the

misstatement but affirmatively agreed with it heightened the

likelihood that the misstatement misled the jury.

The prosecutor also misstated the law by advising the jury

that in evaluating whether a perceived doubt is reasonable, a

“juror should be able to convince his or her fellow jurors that the

doubt is reasonable.” It is misconduct to “ ‘attempt to absolve

the prosecution from its prima facie obligation to overcome

reasonable doubt on all elements.’ ” (Hill, supra, 17 Cal.4th at

p. 829.) “Among the essential elements of the right to trial by

jury are the requirements that a jury in a felony prosecution

consist of 12 persons and that its verdict be unanimous.” (People

v. Collins (1976) 17 Cal.3d 687, 693, superseded by statute on

another ground as stated in People v. Boyette (2002) 29 Cal.4th

381, 462, fn. 19.) Embedded in this right is the well-settled

principle that a single juror may validly hold reasonable doubt

even if all other jurors disagree. Under such a scenario, the jury

has not reached a unanimous verdict, and the defendant may

not be found guilty. (See Ramos v. Louisiana (2020) __ U.S. __,

__ [140 S.Ct. 1390, 1395].) Thus, the prosecutor rendered an

incorrect characterization of the reasonable doubt standard by

suggesting that any single juror’s personally held doubt cannot

be “reasonable” unless at least he or she can persuade another

juror. The Attorney General does not dispute that the

prosecutor misstated the applicable legal standard.

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Nevertheless, we conclude that it was not reasonably

likely that the prosecutor’s misstatements caused one or more

jurors to convict Johnsen on a standard lower than beyond a

reasonable doubt. The court provided the jury with correct

instructions on reasonable doubt and directed the jury to follow

these instructions in the event of any conflicting statements.

The court began by instructing the jury with CALJIC No. 1.00,

which provided in relevant part: “You must accept and follow

the law as I state it to you, whether or not you agree with the

law. If anything concerning the law said by the attorneys in

their arguments or at any other time during the trial conflicts

with my instructions on the law, you must follow my

instructions.” The court then instructed with CALJIC No. 2.90,

which stated that “[a] defendant in a criminal action is

presumed to be innocent until the contrary is proved . . . . This

presumption places upon the People the burden of proving the

defendant’s guilt beyond a reasonable doubt.” This instruction

clarified that Johnsen is presumed innocent until proven guilty

and that the prosecutor had the sole obligation to present

evidence of guilt beyond a reasonable doubt. The court also

provided CALJIC No. 17.40, which stated that the parties “are

entitled to the individual opinion of each juror,” that each juror

“must decide the case for yourself,” and that no juror should

“decide any question in a particular way because a majority of

the jurors or any of them favor such a decision.” With this

instruction, each juror presumably understood that he or she

was entitled to make his or her own assessment of reasonable

doubt and that persuading “a majority of the jurors or any of

them” is not necessary. Defense counsel also stressed to the

jury: “[I]t’s not necessary that you’re able to convince anybody

else in this jury,” and “if you believe something to be such that

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it creates a doubt in your mind and you can’t get rid of that doubt

then you don’t have to change your mind. You’re entitled to

maintain that opinion as long as you deliberate fairly.”

In addition to the prosecutorial misconduct claim, Johnsen

alleges his counsel rendered ineffective assistance by agreeing

with the prosecutor’s assertion that jurors must be able to “point

to something in the evidence” that supports their reasonable

doubt. We need not decide whether the decision to agree with

the prosecutor on this point was deficient because, even if it was,

Johnsen was not prejudiced. (See Strickland, supra, 466 U.S. at

p. 697 [“If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice . . . that course should

be followed”].) Just as instructing with CALJIC Nos. 1.00, 2.90

and 17.40 mitigated any misimpression the prosecutor’s

misstatements of the reasonable doubt standard would have

given, it likewise reduced any risk the jury would be misled by

defense counsel’s similar misstatements.

In sum, we find no reasonable probability that the

prosecutor’s or defense counsel’s misstatements caused any

jurors to convict Johnsen based on a lesser standard than proof

beyond a reasonable doubt.

IV. PENALTY PHASE

A. Juror Misconduct

Johnsen claims Juror Y.P.’s out-of-court discussion with

her priest on the Catholic Church’s (the Church) position on

capital punishment just before the penalty phase violated his

rights under the First, Sixth, Eighth, and Fourteenth

Amendments. He argues that the court (1) did not conduct an

adequate investigation into Juror Y.P.’s misconduct and (2)

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should have removed Juror Y.P. on its own motion because her

misconduct biased her against Johnsen.

1. Background

On March 10, the court adjourned for a two-week break in

advance of the penalty phase. Before dismissing the jury, the

court said: “Remember it’s your duty not to converse among

yourselves or with anyone else . . . or to form or express any

opinion thereon until the cause is finally submitted to you.”

The next day, Juror Y.P. reached out to her Catholic priest

over the phone. Leaving a voicemail, Juror Y.P. inquired

whether it was a sin for Catholics to vote to impose the death

penalty. The priest returned her call later that day and

informed her that he had spoken to a different judge about her

message. When Juror Y.P. reiterated her question, the priest

replied that he would answer her question, but he advised her

that she had a duty to disclose this conversation to the judge

presiding over Johnsen’s case. Juror Y.P. agreed to do so.

The priest then asked her whether the Church’s views

would change the way she felt about the case. She said no, she

simply wanted to know the Church’s views. He then told Juror

Y.P. that voting for the death penalty was not a sin as the

Church “do[es] believe in capital punishment.” Shortly

thereafter, Juror Y.P. called the court and spoke to the bailiff.

According to the bailiff, Juror Y.P. said she had asked a priest

about the death penalty and “the priest told her that the

church’s position was that it wasn’t against the death penalty.”

A few days later, the court, prosecutor, and defense

counsel convened to discuss the juror’s out-of-court conduct. The

court noted that Juror Y.P. had violated her oath not to discuss

any aspect of Johnsen’s case with nonjurors. Then, with both

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attorneys present, the court phoned Juror Y.P. During the call,

Juror Y.P. stressed that she had not discussed any details about

Johnsen’s case with her priest. She said she simply inquired

about the Church’s position on capital punishment because she

was “just curious to know if it was a sin.” Despite her curiosity,

Juror Y.P. insisted, “Even if [the priest] were to tell me yes, it is

a sin, it doesn’t mean I wouldn’t [vote for the death penalty] or

vice versa. I just wanted to know.”

The court then gave the parties an opportunity to question

Juror Y.P. They declined to do so. After ending the call with

Juror Y.P., the court informed both parties, “[I] don’t see any

reason to do anything” about Juror Y.P.’s conduct. According to

the court, Juror Y.P. “shouldn’t have actually been talking about

the death penalty, although we didn’t really specifically tell

them not to talk about the death penalty. But it does involve

the case.” Defense counsel observed, “I think it’s technically a

violation but I don’t think there’s much substance to it.” In the

end, neither party accepted the court’s invitation “to bring a

motion” to remove Juror Y.P. from the jury.

2. Discussion

The Attorney General argues that Johnsen forfeited his

juror misconduct claims because he did not ask the court to

conduct further inquiry, nor did he ask the court to remove Juror

Y.P. However, the trial court has an independent “duty to

conduct an investigation when the court possesses information

that might constitute good cause to remove a juror . . . whether

or not the defense requests an inquiry, and indeed . . . even if

the defense objects to such an inquiry.” (People v. Cowan (2010)

50 Cal.4th 401, 506.) Thus, Johnsen’s failure to object at trial

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did not forfeit his claim that the court failed to adequately

investigate alleged juror misconduct.

As for Johnsen’s claim that the trial court erred by failing

to remove Juror Y.P. on its own motion, we have held that a

defendant forfeits such claims of prejudicial juror misconduct

when defense counsel does not “propose additional questions [be

asked of jurors], object to any juror’s continued service, or

request a mistrial on the ground of juror misconduct.” (People

v. Foster (2010) 50 Cal.4th 1301, 1341; see People v. Holloway

(2004) 33 Cal.4th 96, 124.) Defense counsel declined the trial

court’s invitations to question Juror Y.P. and to bring a motion

to remove Juror Y.P. from the jury. When the court informed

the parties that it did not “see any reason to do anything” about

Juror Y.P.’s conduct, defense counsel agreed. By failing to seek

Juror Y.P.’s excusal or otherwise object to the court’s course of

action, Johnsen forfeited his claim that the court should have

removed Juror Y.P. As discussed below, this claim also fails on

the merits.

As to the merits, we first address whether the trial court

conducted an adequate investigation into Juror Y.P.’s alleged

misconduct. When a court becomes aware of possible juror

misconduct, it must “ ‘ “ ‘make whatever inquiry is reasonably

necessary’ to determine whether the juror should be

discharged.” ’ ” (People v. Martinez (2010) 47 Cal.4th 911, 941.)

The nature of the court’s inquiry may consist of a full hearing or

informal questioning of the juror in the presence of counsel.

(People v. Fuiava (2012) 53 Cal.4th 622, 712.) “The specific

procedures to follow in investigating an allegation of juror

misconduct are generally a matter for the trial court’s

discretion.” (People v. Seaton (2001) 26 Cal.4th 598, 676.)

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According to Johnsen, the trial court’s inquiry was

inadequate because the court did not ask “questions designed to

probe the effect of the priest’s information on Juror Y.P.’s ability

to decide [Johnsen’s] fate free from outside influence” and did

not question Juror Y.P. in person. As noted, in the presence of

Johnsen’s counsel and the prosecutor, the court asked Juror Y.P.

about her conversation with her priest. After hearing Juror

Y.P.’s account, the court accepted her assertion that the

Church’s views had no effect on her assessment of Johnsen’s

case. The court then took the precaution of inviting either party

to move to remove Juror Y.P. After both parties declined to do

so, the court did not remove her on its own motion. Implicit in

the court’s decision was a finding that Juror Y.P. had been

forthright about her conversation and her statement that it

would not affect her views of the case. On this record, we have

no basis to second-guess the trial court’s credibility

determination.

Nor did the court abuse its discretion by questioning Juror

Y.P. telephonically. The court opted for a telephonic inquiry to

expeditiously determine whether Juror Y.P. had discussed the

case before or after she had returned her verdict at the guilt

phase. As the prosecutor observed, the parties would have

responded differently if Juror Y.P. had “talked to the priest

during deliberations. Then we have a whole different ball game.

Then the question becomes whether [Johnsen] wants to move

for a mistrial or whether mistrial is an appropriate remedy or

whether we can substitute an alternate, tell them to go back in

and deliberate the guilt . . . .” The court agreed that it could not

leave this inquiry until the jurors returned from their two-week

break. Although an in-person examination may have been

preferable, the court did not abuse its discretion by choosing to

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conduct a telephonic inquiry to quickly determine the extent of

Juror Y.P.’s out-of-court contact.

As for Johnsen’s claim that the trial court erred by failing

to remove Juror Y.P. on its own motion, we ask “whether there

is any overt event or circumstance . . . which suggests a

likelihood that one or more members of the jury were influenced

by improper bias.” (In re Hamilton (1999) 20 Cal.4th 273, 294,

italics omitted.) A finding of “juror misconduct ‘raises a

presumption of prejudice that may be rebutted by proof that no

prejudice actually resulted.’ ” (In re Hitchings (1993) 6 Cal.4th

97, 118.) The Attorney General contends that even assuming

Juror Y.P. committed misconduct, “there is not a substantial

likelihood that Juror Y.P. was biased on the issue of

punishment.” “[Juror] bias can appear in two different ways.

First, we will find bias if the extraneous material, judged

objectively, is inherently and substantially likely to have

influenced the juror. [Citations.] Second, we look to the nature

of the misconduct and the surrounding circumstances to

determine whether it is substantially likely the juror was

actually biased against the defendant. [Citation.] The

judgment must be set aside if the court finds prejudice under

either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653; see

People v. Nesler (1997) 16 Cal.4th 561, 579 [“If we find a

substantial likelihood that a juror was actually biased, we must

set aside the verdict, no matter how convinced we might be that

an unbiased jury would have reached the same verdict, because

a biased adjudicator is one of the few structural trial defects that

compel reversal without application of a harmless error

standard.”].) Our review “accept[s] the trial court’s credibility

determinations and findings on questions of historical fact if

supported by substantial evidence,” and we independently

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examine the mixed question of “[w]hether prejudice arose from

[the] juror misconduct.” (Nesler, at p. 582.)

We agree with the Attorney General that, even assuming

without deciding that there was misconduct, any attendant

presumption of prejudice has been rebutted. As noted, Juror

Y.P. asked her priest whether it would be a “sin” for her to vote

for the death penalty. Her priest said the Church “believes in

the death penalty,” so it would not be sinful to vote for the death

penalty. But the priest did not indicate it was desirable to vote

for the death penalty in any given case, nor would a reasonable

listener understand the priest’s response to generally favor

imposing capital punishment. Contrary to what Johnsen

claims, Juror Y.P.’s question and her priest’s reply did not

“relieve” her of the personal burden of sentencing him to death.

There is no evidence that the priest opined further on the death

penalty or that any other discussion transpired. We cannot say

that Juror Y.P.’s out-of-court contact with her priest was

inherently and substantially likely to result in bias. (See People

v. Danks (2004) 32 Cal.4th 269, 310–311 [“[W]e are unwilling to

ascribe to any perceived stereotype that jurors who receive

advice from Christian spiritual leaders, or are exposed to

Biblical passages, per se suffer a diminished sense of

responsibility for their penalty verdict, and are automatically

rendered incapable of fairly evaluating the evidence and law

before them.”].)

Nor can we conclude on the record before us that it is

substantially likely that Juror Y.P. was actually biased against

Johnsen. Although we recognize that a juror’s insistence that

she is not biased against a defendant does not end the court’s

inquiry (see Crawford v. United States (1909) 212 U.S. 183, 196),

the record shows that Juror Y.P. repeatedly clarified to her

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priest and later to the court that the Church’s views would have

no effect on her assessment of Johnsen’s case. Immediately

after her conversation with her priest, Juror Y.P. informed the

bailiff. The court credited Juror Y.P.’s assurances that “[e]ven

if [my priest] were to tell me yes, it is a sin, it doesn’t mean I

wouldn’t [vote for the death penalty] or vice versa. I just wanted

to know.” Juror Y.P. reiterated that the Church’s position on

the death penalty was “not going to change the way [she] feel[s]”

about Johnsen’s case. Nothing in her out-of-court conversation

or her statements to the court suggested that she had prejudged

the case before any penalty phase testimony had been

introduced or that she was predisposed to one result over the

other. Nor does the record indicate that Juror Y.P.’s ultimate

vote would be motivated by her religion. In fact, her colloquy

with the court conveyed the opposite.

This case is distinguishable from Hill, where we

emphasized that “an appeal to religious authority in support of

the death penalty is improper because it tends to diminish the

jury’s personal sense of responsibility for the verdict.” (Hill,

supra, 17 Cal.4th at pp. 836–837.) In reversing the defendant’s

conviction and death judgment, we made clear “that to ask the

jury to consider biblical teachings when deliberating is patent

misconduct.” (Id. at p. 836, fn. 6.) Here, the record provides no

basis to second-guess the trial court’s finding that Juror Y.P.’s

discussion with her priest would not influence her views on the

case. Nor is there any indication that Juror Y.P. consulted or

mentioned her religious views or the Church’s position on the

death penalty during jury deliberations.

In sum, the record does not show a reasonable likelihood

that Juror Y.P. was biased against Johnsen.

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B. Victim Impact Evidence

1. Evidence of Leo’s Rehabilitation

Johnsen argues that penalty phase evidence presented on

Leo’s physical recovery exceeds the bounds of permissible victim

impact evidence (Payne v. Tennessee (1991) 501 U.S. 808) and

violates his rights under the Eighth and Fourteenth

Amendments as well as state law. The crux of his claim is that

“the rationale for victim impact evidence set forth in Payne

simply does not justify permitting victim impact testimony for

any crimes other than the capital crime” and that during the

penalty phase “a defendant’s moral culpability must be assessed

on the basis of that [capital] crime alone.” Johnsen asks us to

narrowly construe “victim,” to mean “capital victim” to the

exclusion of impact testimony on Leo, a surviving victim of the

murder-robbery. Johnsen acknowledges we have rejected

similar arguments before. (See People v. Mitcham (1992) 1

Cal.4th 1027, 1062–1063; People v. Karis (1988) 46 Cal.3d 612,

649.) Nevertheless, he asks us to reconsider these prior

holdings.

We decline to do so. “Although victim impact is not

expressly enumerated as a statutory aggravating factor, . . . such

evidence [i]s generally admissible as a circumstance of the crime

under section 190.3, factor (a).” (People v. Brown (2004) 33

Cal.4th 382, 396 (Brown).) Johnsen’s argument that victim

impact evidence is exclusively limited only to impact evidence

on the deceased victim is unavailing; the language of factor (a)

is not so narrow. That provision authorizes consideration, at the

penalty phase, of “[t]he circumstances of the crime of which the

defendant was convicted in the present proceeding and . . . any

special circumstances. . . .” (§ 190.3, factor (a), italics added.)

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Leo’s near-death injuries occurred alongside Juanita’s

murder while Johnsen was robbing them, a special circumstance

found by the jury. According to Dr. Brown, the injuries Leo

sustained during Johnsen’s assault rendered him incapable of

oral or written communication. Leo’s adult children testified

regarding their increased caregiving duties of Leo, directly

attributable to Leo’s injuries and the murder of their mother,

Juanita, who would have otherwise cared for Leo.

Their victim impact testimony was also admissible during

the penalty phase because it concerned the effect of Johnsen’s

violent crimes against Juanita on her family, including Leo.

(See People v. Davis (2009) 46 Cal.4th 539, 618; People v. Taylor

(2001) 26 Cal.4th 1155, 1171–1172.) Finally, the testimony

regarding Leo’s rehabilitation was not “so voluminous or

inflammatory as to divert the jury’s attention from its proper

role or invite an irrational response” in violation of due process.

(Taylor, at p. 1172; see People v. Roldan (2005) 35 Cal.4th 646,

731.)

2. Alleged Instructional Error

Johnsen argues that the trial court erred in denying two

defense-requested jury instructions pertaining to the victim

impact evidence. Johnsen’s proposed penalty phase instruction

No. 35 read:

“Evidence has been introduced for the purpose of

showing the specific harm caused by the defendant’s

crime. Such evidence, if believed, was not received

and may not be considered by you to divert your

attention from your proper role of deciding whether

defendant should live or die. You must face this

obligation soberly and rationally and you may not

impose the ultimate sanction as a result of an

irrational, purely subjective response to emotional

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evidence and argument. On the other hand,

evidence and argument on emotional though

relevant subjects may provide legitimate reasons to

sway the jury to show mercy.”

The court declined to instruct the jury to this effect,

characterizing the proposed instruction as “unnecessary.” In

People v. Russell (2010) 50 Cal.4th 1228, we found no error in

the trial court’s refusal to give an identical jury instruction to

the one at issue here because it was confusing and because other

instructions already advised the jury to determine the facts and

apply the law as directed. (Id. at p. 1265 & fn. 6.) As in Russell,

we conclude the trial court here did not err in refusing to

instruct the jury with proposed instruction No. 35.

The court also refused defendant’s penalty phase

instruction No. 61, which the court opined was an incorrect

statement of law. That instruction would have provided: “The

facts of this case may arouse in you a natural sympathy for the

victim or the victim’s family. Such sympathy, while natural, is

not relevant to the penalty decision in this case. [¶] You are to

base your decision on the evidence, the arguments of counsel,

and the law stated in these instructions. You are directed not

to consider any feelings of sympathy you may feel for the parties

injured or aggrieved in this case.” During the penalty phase,

however, “the jury may exercise sympathy for the defendant’s

murder victims and for their bereaved family members” in

aggravation, as a circumstance of the crime. (People v. Pollock

(2004) 32 Cal.4th 1153, 1195; see § 190.3, factor (a).) The trial

court was correct to deny this instruction, which erroneously

stated that the jury must “not . . . consider any feelings of

sympathy . . . for the parties injured or aggrieved.”

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C. Admission of Photographs of Deceased Victim

Theresa Holloway

Over an objection by Johnsen’s counsel, the trial court

admitted into evidence three postmortem photographs of

different parts of Holloway’s body. The three photos showed

close-up shots of injuries to Holloway’s face, neck, and scalp.

Johnsen renews his argument that these photographs should

have been excluded from the penalty phase as irrelevant and

more prejudicial than probative. (Evid. Code, §§ 210, 352.)

Johnsen begins by disputing the relevance of the photos

pursuant to section 190.3, factor (b). Factor (b) authorizes

admission of evidence of Johnsen’s unadjudicated violent

criminal activity as a factor in aggravation during the penalty

phase. Johnsen’s primary argument is that photos of Holloway’s

bodily injuries are not relevant because Johnsen did not

personally injure Holloway; thus, her injuries could not be

indicative of Johnsen’s state of mind when he aided and abetted

her murder.

We have said that “[v]iolent ‘criminal activity’ presented

in aggravation may be shown in context, so that the jury has full

opportunity in deciding the appropriate penalty to determine its

seriousness.” (People v. Melton (1988) 44 Cal.3d 713, 757.)

Here, the photos were not introduced to ascertain Johnsen’s

state of mind with respect Holloway’s death but rather to convey

to the jury the unusual context and circumstances of Johnsen’s

prior violent criminal activity, which the prosecution had to

prove beyond a reasonable doubt. (§ 190.3, factor (b); see People

v. Robertson (1982) 33 Cal.3d 21, 54.) Johnsen did not injure

Holloway himself, but the other crime’s evidence and Johnsen’s

written confession strongly suggest that he directed Jurado to

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kill Holloway to prevent her from disclosing their plans to kill

Mynatt.

Contrary to Johnsen’s claim that the photographs were

cumulative of other testimony, they did have probative value

during the penalty phase. They rendered Johnsen’s written

confession more credible and enabled the pathologist to

effectively communicate the peculiar nature of Holloway’s

injuries to the jury. (See People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4th 335, 423 [“ ‘[a]utopsy photographs are

routinely admitted to establish the nature and placement of the

victim’s wounds’ ”].) In other words, the photos had a “tendency

in reason to prove or disprove a[] disputed fact that is of

consequence” (Evid. Code, § 210), and the court correctly

concluded that they are relevant under Penal Code section

190.3, factor (b).

As to whether the photos were more prejudicial than

probative, we are mindful that Evidence Code section 352

confers on the trial court “broad discretion” (People v. Rodrigues

(1994) 8 Cal.4th 1060, 1124) to “exclude evidence if its probative

value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury” (Evid. Code, § 352). Our review

is limited to whether the trial court’s determination under

section 352 constituted an “abuse of discretion.” (Rodrigues, at

p. 1125.) Our intervention is only warranted when “the

probative value of the photographs clearly is outweighed by

their prejudicial effect.” (People v. Crittenden (1994) 9 Cal.4th

83, 134.)

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The trial court noted that the prosecution selected only

three autopsy photos — each depicting a different injury point

on Holloway’s neck, face, and head — out of nearly 100 photos.

While recognizing that in general photos of a deceased victim

may provoke a visceral reaction, we have reviewed the

challenged photos and conclude that the photos, while

unpleasant, were not likely to evoke a visceral reaction

disproportionate to the murder itself. Because the photos’

probative value was not clearly outweighed by their prejudicial

effect (Evid. Code, § 352), we conclude that the court did not

abuse its discretion in admitting the photographs.

D. Alleged Prosecutorial Misconduct

Johnsen contends the prosecutor committed multiple acts

of prejudicial misconduct in his opening and closing argument

during the penalty phase, requiring reversal. But Johnsen did

not preserve his objection to much of the alleged misconduct,

and in any event, his claims either lack merit or do not rise to

the level of prejudicial misconduct.

“The same standard applicable to prosecutorial

misconduct at the guilt phase is applicable at the penalty

phase.” (People v. Valdez (2004) 32 Cal.4th 73, 132 (Valdez); see

People v. Guerra (2006) 37 Cal.4th 1067, 1153.) “ ‘ “Under the

federal Constitution, a prosecutor commits reversible

misconduct only if the conduct infects the trial with such

‘ “unfairness as to make the resulting conviction a denial of due

process.” ’ ” ’ ” (People v. Sattiewhite (2014) 59 Cal.4th 446, 480

(Sattiewhite).) Johnsen raises no claims pursuant to the

California Constitution, so we consider his federal claims alone.

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1. Comments on Society and the Integrity of the Law

(a) Background

During his opening argument, the district attorney told

the jury, “[Y]ou are representatives of 30 million Californians,

the great majority of whom are law abiding citizens. You owe

them and yourselves a conscientious, courageous and thorough

review of the evidence in this phase of the trial. You owe

yourselves and them the imposition of a just and appropriate

punishment. [¶] I urge you to remain faithful to your oath and

to do the right thing. Fellow citizens expect that you will

discharge your duty and they are entitled to the discharge of

that duty.” The prosecutor also contextualized societal values,

saying, “By subjecting certain murderers to death, society

acknowledges the level of their evil and their depravity and the

preciousness of the innocent lives which such murderers

violently and prematurely ended.” He observed that “[a] society

which lacks the will to protect its citizens from the likes of the

Brian Johnsens of the world, is as immoral as it is weak and

criminally negligent. Fortunately we live in a society which has

the courage and the will to confront evil and eradicate it.”

Johnsen’s counsel did not object to any of the prosecutor’s

remarks. Instead, defense counsel responded in his opening

argument: “The prosecutor has asked you to return a death

sentence and the message is if you vote for the death penalty,

you’re tough on crime; and if you vote for life without possibility

of parole, well, then you’re not tough on crime because you’ve

got all these 30 million people behind you. [¶] Well, that’s not

true.” Defense counsel said: “There’s 12 people and they’re all

individuals. Each one of you are the ones who are responsible

for making this decision. You don’t have to worry about the 30

million people out there.”

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In rebuttal, the prosecutor told the jury: “You are here to

apply the law of the State of California in a capital murder case

and that law requires that you weigh the aggravating and

mitigating circumstances in deciding whether to impose the

penalty of death.” “You will be voting for death to, one, maintain

the integrity of the law, to insure that it works the way it has

been designed to work. You will be voting for death to impose a

just and an appropriate penalty.”

Johnsen’s counsel responded: “I think that Mr. Fontan

[the prosecutor] is wrong when he says we have to kill Mr.

Johnsen to maintain the integrity of the law. What we have to

do to maintain the integrity of the law is do the right thing.”

“[K]illing Mr. Johnsen would certainly not make the system

work better, make anybody have more respect for the system,”

defense counsel said. “The system will be in good shape, thank

you, tomorrow and next week and next month and next year

whether you kill Mr. Johnsen or whether you sentence him to

life without possibility of parole.”

Although Johnsen’s counsel never objected to the

prosecutor’s remarks, he requested defendant’s penalty phase

instruction No. 60: “After weighing all the aggravating and

mitigating factors, it is up to you individually to decide which of

the punishments, life without parole or death, should be

imposed in this case. You must always keep in mind that each

of you bears the ultimate moral responsibility to determine the

appropriate penalty under all the circumstances of this case.”

The district attorney opposed this request.

The court asked Johnsen’s counsel if he would be satisfied

if, instead of giving the requested instruction, the court modified

CALJIC No. 8.88 to include the word “individually” so that it

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would read: “To return a judgment of death, each of you

individually must be persuaded that the aggravating

circumstances are so substantial in comparison with the

mitigating circumstances that it warrants death instead of life

without parole.” (Italics added.) Johnsen’s counsel replied:

“Well, all right. I think that’s appropriate.” The court

instructed the jury accordingly.

(b) Discussion

On appeal, Johnsen contends that the prosecutor’s

reference to “[a] society which lacks the will to protect its

citizens from the likes of the Brian Johnsens of the world, is as

immoral as it is weak and criminally negligent” shamed jurors

into favoring the death penalty to uphold social expectations

rather than engaging in an “ ‘individualized inquiry’ ” of

Johnsen as compelled by the Eighth Amendment. (Romano v.

Oklahoma (1994) 512 U.S. 1, 7.)

To the extent Johnsen’s claim of prosecutorial misconduct

alleges a due process violation, he has forfeited it by failing to

“ ‘ “make a timely objection and ask the trial court to admonish

the jury,” ’ ” as there is no indication a timely objection would

have been inadequate. (Sattiewhite, supra, 59 Cal.4th at

p. 480.) However, his “failure to object at trial does not preclude

him from raising . . . on appeal” a claim under Caldwell v.

Mississippi (1985) 472 U.S. 320 (Caldwell). (Sattiewhite, at

p. 481; see Caldwell, at pp. 328–329 [a verdict “made by a

sentencer who has been led to believe that the responsibility for

determining the appropriateness of the defendant’s death rests

elsewhere” violates the 8th Amend.].)

The prosecutor’s remarks here did not run afoul of the

Eighth Amendment. “It [i]s not improper for the prosecutor to

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argue that the jury would be acting as the representative of the

community or for society as a whole.” (People v. DeHoyos (2013)

57 Cal.4th 79, 149.) In Sattiewhite, we declined to find

misconduct because the prosecutor “accurately described the

jurors as the conscience of the community.” (Sattiewhite, supra,

59 Cal.4th at p. 481; see Caldwell, supra, 472 U.S. at p. 333

[capital jury may be asked to decide penalty “on behalf of the

community”].) Here, as in Sattiewhite, the prosecutor “did not

urge the jury to abrogate their personal responsibility to

determine the appropriate punishment” or “suggest to the jury

that ‘the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.’ ” (Sattiewhite, at

p. 481.) The prosecutor merely told jurors that they “owe

[them]selves and [others] the imposition of a just and

appropriate punishment” and that a death verdict would be

consistent with societal values. (See People v. Zambrano (2007)

41 Cal.4th 1082, 1179 [“the community . . . has the right to

express its values by imposing the severest punishment for the

most aggravated crimes”], disapproved on other grounds in

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) And as in

Sattiewhite, the court here instructed the jury to determine

“individually” whether death is the appropriate penalty.

As for the district attorney’s statement urging the jurors

to “confront evil and eradicate it,” the word “it” could have been

understood by a reasonable juror to label Johnsen an “evil” that

must be “eradicate[d].” “A prosecutor is allowed to make

vigorous arguments and may even use such epithets as are

warranted by the evidence, as long as these arguments are not

inflammatory and principally aimed at arousing the passion or

prejudice of the jury.” (People v. Pensinger (1991) 52 Cal.3d

1210, 1251.) The prosecutor’s suggestion that Johnsen is “evil,”

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followed by a call to “eradicate” such evil, borders on

“inflammatory” rhetoric. (Ibid.; see People v. Fosselman (1983)

33 Cal.3d 572, 580 [a prosecutor may “ ‘use appropriate epithets

warranted by the evidence,’ ” but “the prosecutor’s

inflammatory characterization of defendant” could not be

condoned].) But the comment was limited and fleeting such that

any error was nonprejudicial.

2. Comments on Johnsen’s Lack of Sympathy and

Mercy

During his opening argument, the district attorney asked

the jury several rhetorical questions, including: (1) “Why should

Brian Johnsen’s life be spared when he failed to show any

compassion or sympathy for his victims at the time he

committed his murders?”; (2) “Why should a cold-blooded,

cavalier, thrill-killer like Mr. Johnsen be permitted to live after

killing twice and attempting to kill again?”; and (3) “Why should

[Johnsen] live while the remains of his victims decay in the

earth and their survivors are condemned to grieve the manner

and tragedy of the death of their loved ones each and every day

that they live?” Johnsen did not object to these comments, nor

has he shown that a sustained objection and an admonition from

the court would have been inadequate. (Seumanu, supra, 61

Cal.4th at p. 1328.) Thus, he has forfeited this claim on appeal.

We also reject it on the merits. Section 190.3, factor (k)

permits penalty phase consideration of any “circumstance which

extenuates the gravity of the crime even though it is not a legal

excuse for the crime.” “[R]emorse, which by definition can only

be experienced after a crime’s commission, is something

commonly thought to lessen or excuse defendant’s culpability.”

(Brown v. Payton (2005) 544 U.S. 133, 142–143.)

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Contrary to Johnsen’s arguments, the prosecutor did not

attempt to turn Johnsen’s lack of remorse or mercy for his

victims into an aggravating factor. Rather, the rhetorical

questions are most reasonably read to advise the jury that

Johnsen’s lack of compassion or sympathy weighs against

mitigation. Although a prosecutor may not “argue that the

absence of such mitigating factors [such as the lack of remorse]

is itself an aggravating factor justifying the death penalty”

(People v. Dyer (1988) 45 Cal.3d 26, 82, italics omitted), the

prosecutor may argue “a particular mitigating circumstance,

such as [Johnsen’s] remorse for his victims, is lacking from the

case” (ibid.) and may also “urge[ the jury] not to be swayed by

arguments for sympathy” (People v. Sanders (1995) 11 Cal.4th

475, 554). Here, the district attorney pointed to Johnsen’s lack

of remorse or mercy for his victims, and urged the jury not to

offer any sympathy. Such arguments opposing mitigation do not

offend due process.

3. Comments on Conspiracy Evidence

Johnsen alleges the prosecutor’s reference to Johnsen’s

participation in a conspiracy to kill Mynatt mischaracterized the

section 190.3, factor (a) motive evidence behind Holloway’s

killing as a factor (b) violent criminal activity.

In his opening remarks, the district attorney asked the

jury to “[t]hink about the motive. [Johnsen] decided to

participate in [Holloway’s] murder because she was going to go

to the object of a plot he was involved with, a plot to kill another

person. So we have a killer here . . . who not only premeditates

and deliberates his killings, we have a killer that kills so he can

continue to kill. That was his motive. He had his girlfriend

killed so he could kill Doug Mynatt.” (Italics added.) As noted,

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the district attorney also introduced section 190.3, factor (a)

motive evidence that Jurado, Shigemura, Humiston, and

Johnsen killed Holloway because they were concerned that

Holloway might tell Mynatt about Johnsen’s plans to kill him.

Johnsen claims that his confession to Holloway’s murder

disavowed any intent to kill Mynatt, instead evincing a fear that

Mynatt would kill “all of [them]” if Holloway “ratted” them out.

His confession stated, “I had no choice. It was her or all of us.”

Thus, Johnsen claims he never intended to kill Mynatt and

observes Mynatt was never murdered. Because there was

insufficient corroborating evidence to establish the conspiracy

under factor (b), Johnsen argues that the prosecutor’s remarks

transformed his unproven conspiracy crime into a standalone

aggravating factor in violation of due process.

We conclude Johnsen’s claim lacks merit. Both parties are

entitled to “ ‘ “fair comment on the evidence, which can include

reasonable inferences, or deductions to be drawn therefrom.” ‘ ”

(People v. Ward (2005) 36 Cal.4th 186, 215.) “ ‘ “Whether the

inferences the prosecutor draws are reasonable is for the jury to

decide.” ’ ” (Valdez, supra, 32 Cal.4th at p. 134.) The

prosecutor’s theory that Johnsen’s motive for killing Holloway

to conceal a plot to kill Mynatt was a “reasonable inference”

based on the evidence presented. Importantly, the court

instructed the jury that it could consider “[e]vidence r

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