IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE EDWARD JOHNSON,

Defendant and Appellant.

S029551

Sacramento County Superior Court

58961

November 25, 2019

Chief Justice Cantil-Sakauye authored the opinion of the 

Court, in which Justices Chin, Corrigan, Kruger and Groban

concurred.

Justice Liu filed a dissenting opinion.

Justice Cuéllar filed a dissenting opinion in which Justice Liu 

concurred.
1

PEOPLE v. JOHNSON

S029551

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

A jury convicted defendant Joe Edward Johnson of the 

first degree murder of Aldo Cavallo, and found true the special 

circumstance allegation that defendant committed the murder 

while engaged in a home invasion robbery. (Pen. Code,1§§ 187, 

subd. (a) [murder], 190.2, subd. (a)(17)(i) [robbery murder].) The 

jury also convicted defendant of the forcible rape (§ 261, subd. 

(a)(2)) and assault with intent to commit murder (former § 217) 

of Mary S. The jury returned a verdict of death, and the trial 

court sentenced defendant accordingly.

An automatic appeal followed. (§ 1239, subd. (b).) This

court initially held that the trial court had committed reversible 

error under People v. Shirley (1982) 31 Cal.3d 18, by admitting 

into evidence the hypnotically induced identification of 

defendant by Mary S., and we reversed all convictions and the 

death sentence on that basis. However, we subsequently 

granted the People’s petition for rehearing, vacated our earlier 

decision, and issued an opinion reversing the rape and assault 

convictions but affirming the murder conviction and special 

circumstance finding. (People v. Johnson (1988) 47 Cal.3d 576.) 

We also reversed the judgment of death due to the trial court’s

erroneous jury instruction on the possibility of future 

 

1 All further undesignated statutory references are to the 

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

2

commutation under People v. Ramos (1984) 37 Cal.3d 

136. (People v. Johnson, at p. 603.)

The prosecution retried the penalty phase based on the 

murder conviction and special circumstance finding. It elected 

not to retry defendant on the rape and related charges. The first 

penalty phase retrial ended in a mistrial in 1991. The jury in 

the second penalty phase retrial returned a death verdict in 

1992, and the trial court sentenced defendant to death. This 

appeal is automatic. We affirm the judgment in its entirety.

I. SUMMARY OF FACTS

A. Prosecution Evidence

The People presented the following evidence during the 

second penalty phase retrial.

1. Robbery and murder of Aldo Cavallo

One evening in late July 1979, defendant removed the 

screen from an open kitchen window to enter Cavallo’s 

apartment via the back door. Defendant retrieved a dumbbell 

from the apartment’s second bedroom, walked to the master 

bedroom, and then struck a sleeping Cavallo once or twice in the 

temple. The chain lock on the front door was still in place, 

suggesting defendant exited the way he had entered. 

Police responding to a neighbor’s welfare check found 

Cavallo’s apartment in shambles: drawers were open with 

contents dumped on the floor and a television sat on the floor in 

the hallway. Two guns — one a shotgun and another a shotgun 

or a rifle — and ammunition were lying on the floor. Cavallo’s 

body was found on his bed under the covers. His head was 

covered with blood. On the foot of the bed lay a dumbbell or 

barbell with traces of blood and hair on it. The cause of death 

was determined to be a single major blow to the right temporal 
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Opinion of the Court by Cantil-Sakauye, C. J.

3

area, consistent with having been caused by the dumbbell found 

at the scene. 

Investigators found a window screen, apparently taken 

from the open window, leaning against a patio chair. A latent 

fingerprint was obtained from the removed kitchen screen, and

a fingerprint expert identified the print as belonging to 

defendant.

Inside the apartment, officers found a receipt for a Bohsei 

portable television but did not locate the accompanying 

television. They contacted the manufacturer and received a 

copy of the warranty paperwork, including the television’s serial 

number. The officers subsequently conducted a parole search of 

defendant’s apartment and located the missing television set.

Cavallo’s close friend confirmed she had seen the found 

television in Cavallo’s kitchen.

The prosecution read the testimony of three witnesses 

from prior trials concerning Cavallo’s ownership of a .22-caliber 

handgun, including friend Richard Canniff. Cavallo had told 

Canniff on multiple occasions that he kept a handgun in his 

nightstand for protection. Officers did not locate a handgun in 

Cavallo’s apartment, but they found an open box of .22-caliber 

cartridges on the dining table and a second box in the bedroom 

closet. Cavallo’s ex-wife, who was available for the second 

penalty phase retrial, testified that he owned a .22-caliber 

handgun. 

2. Evidence in aggravation

At the second penalty phase retrial, the prosecution

presented evidence of defendant’s rape and assault of Mary S.

as evidence in aggravation under section 190.3, factor (b)

(presence or absence of criminal activity involving the use, 
PEOPLE v. JOHNSON

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

4

attempted use, or threats to use force or violence). The 

prosecution also presented evidence that defendant had four 

prior felony convictions as evidence in aggravation under section 

190.3, factor (c) (presence or absence of any prior felony 

conviction), and that defendant had committed one additional 

previously uncharged aggravating act of criminal violence under 

section 190.3, factor (b).

a. Rape and assault on Mary S.

Four days after Cavallo was robbed and murdered, Mary 

S. attended mass at her church. She stayed behind in her pew 

after mass ended. Defendant entered the church, approached 

Mary S., and asked her where the priest’s house was. Defendant 

started to walk away after Mary S. provided him directions, but

turned around and walked back toward her holding a gun. He 

said, “Keep quiet and you won’t get hurt, and come with me.” 

Defendant directed Mary S. into a bathroom at the back of 

the church. He fired his gun into the toilet seat and said he 

would not hurt her if she remained quiet. He ordered Mary S.

to take off her pants and “[g]et on the toilet,” and then raped 

her. After instructing Mary S. to put her pants back on, 

defendant asked if she had any money. She said she had only

change. Defendant took her purse and looked inside. He shoved 

the purse into Mary S.’s hands and told her to pull her sweater 

over her head. Defendant struck Mary S. on the head with his 

gun, which broke into pieces.

After putting her sweater over her head, the next thing 

Mary S. remembered was “groping” her way out of the back room 

and into the church. She approached a woman in the pews and 

asked for help. Mary S. was rushed into surgery to treat a

depressed skull fracture. The neurosurgeon opened her scalp,
PEOPLE v. JOHNSON

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

5

removed fragments of bone, and sutured a cut on the dura. The 

surgeon counted 10 individual wounds on Mary S.’s skull caused 

by both blunt force and sharp force. The wounds were consistent 

with having been caused by a semiautomatic pistol. Mary S. 

suffered loss of smell, postoperative vertigo, and amnesia 

regarding some aspects of the attack.

When Mary S. awoke from surgery, a police detective

showed her more than 50 photographs of possible suspects, 

which included a photograph of defendant. Mary S. also 

reviewed photographs at her home after she was released from 

the hospital. She did not recognize her assailant among the 

photographs. 

Doctors collected sexual assault evidence at the request of 

the police. A criminalist compared the blood types of Mary S.

and defendant and determined they both had type O blood. The 

vaginal swab contained a mixture of vaginal fluid and semen, 

both of which were contributed by a donor or donors with type 

O blood. The criminologist was unable to conclude whether 

defendant was the source of the semen. 

The handgun’s broken pieces, some of which had traces of 

human blood, were found at the scene. Officers found and lifted 

at least one latent fingerprint on the gun’s magazine. A 

fingerprint expert concluded that defendant’s prints matched 

those found on the magazine.

The criminologist compared the cartridges found in the 

magazine to the live ammunition recovered from Cavallo’s 

apartment. He found that all the cartridges had been 

manufactured by the Federal Cartridge Company with no 

discernable difference in type, caliber, or overall physical 
PEOPLE v. JOHNSON

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

6

characteristics. The letter “F” logo on all of the bullets appeared 

to have been marked by the same tool. 

b. Stabbing of Verna O.

In 1978, Verna O. met defendant when she was working

as a janitor at a Sonoma hospital. Sometime after that, he 

moved in with her and they developed a relationship. About two 

weeks later, Verna O. asked defendant to leave because of his 

controlling and threatening behavior. He had previously told 

her that he would decapitate her children and grandchildren if

she “did anything against him.”

In early December 1978, defendant, Verna O., and her

friend, Lisa, were at home. Verna O. and Lisa prepared to leave 

the house because defendant had previously asked Verna O. not 

to be home that evening, when his friends were coming over. 

Defendant screamed at Verna O., ordered her not to leave the 

house, and slapped her. He then retrieved a knife from the 

bedroom and stabbed Verna O. in the neck and chest. Defendant 

told Verna O. that she “would be dead in two minutes.” Verna 

O. asked defendant to leave her alone and let her die in peace. 

He went back into the bedroom, and Verna O. staggered outside. 

Lisa took Verna O. to the hospital, where Verna O. remained for 

several days.

Defendant was convicted of assaulting Verna O. with a 

deadly weapon (former § 245, subd. (a)(1)).

c. Assault on Thomas Scott

The prosecution read prior testimony from Thomas Scott,

who was deceased at the time of the second penalty phase 

retrial. Scott was housed with defendant in a state medical 

facility in 1973. One evening, Scott was in bed when defendant

started yelling and called Scott a vulture, accusing him of owing 
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Opinion of the Court by Cantil-Sakauye, C. J.

7

defendant a jar of coffee and cigarettes. Defendant hit Scott 

with a chair, knocking him unconscious. Scott received stitches 

on his chin and suffered permanent nerve damage to his left eye.

Defendant was convicted of assault with a deadly weapon 

while confined in state prison (§ 4501). 

d. Attack on Officer Laughlin and prison escape

After the assault on Scott, defendant was incarcerated at 

a correctional facility in Chino. In April 1974, Correctional 

Officer Steven Laughlin supervised defendant and two other 

inmates while they worked on landscaping in an area between 

the prison building and the fencing surrounding the institution. 

One of the inmates struck Laughlin from behind, hitting him in 

the head and causing him to fall. As Laughlin tried to stand up, 

defendant hit him in the face multiple times and knocked him 

back to the ground. The first inmate walked away and remained 

seated nearby until the end of the incident, but the second 

inmate and defendant dragged Laughlin to the side of the 

building, tied him up, gagged him, and continued to hit him. 

Laughlin saw defendant and the second inmate run toward the 

fence and climb over. Laughlin was taken to a local hospital, 

where he received 19 stitches on his face and head.

Defendant was apprehended within 24 hours. He pleaded

guilty to committing an escape with force (§ 4530, subd. (a)), and 

was sent to a state hospital for treatment. 

e. Attempted murder and witness threat on 

Florence M.

In September 1971, defendant moved in with his halfbrother, Priestley M., and Priestley’s wife, Florence M. At the 

time, Florence M. was several months pregnant and on

maternity leave. 
PEOPLE v. JOHNSON

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

8

Some months later, Florence M. was at home talking on 

the phone when defendant asked her to hang up because he 

needed to make a phone call. She responded that he could use 

the phone, but she wanted to finish her conversation 

first. Defendant approached Florence M. holding a large 

kitchen knife and stabbed her numerous times. He also struck 

her in the face and head with his fists. Florence M. curled up on 

the floor and tried to shield her stomach. Using the knife, 

defendant wounded her multiple times on her face and twice on 

her legs. Florence M. tried to stop him by grabbing the blade 

with her right hand, causing a deep cut that left a significant 

scar. She managed to get away and crawl from the bedroom to 

the living room before collapsing. Defendant initially ignored 

Florence M. but then returned and repeatedly stabbed her in the 

back. The knife broke into pieces while defendant was stabbing 

her. Defendant left the room to get a new knife. Priestly arrived 

home as defendant was returning with a steak knife. Defendant

fled the house when he saw his brother.

Florence M. had surgery to repair the wounds on her back, 

hand, forehead, and eyebrow. She spent eight days recovering 

in the hospital.

Several days after the attack, a California Highway Patrol 

(CHP) officer stopped defendant for a traffic violation and 

arrested him for possession of a stolen vehicle. Defendant told 

the officer that he thought he killed his pregnant sister-in-law 

by stabbing her from the neck down to the stomach. He claimed 

that the assault occurred during an argument about her “coming 

on to him.”

Defendant was arrested and ultimately pleaded no contest 

to attempted murder in exchange for dismissal of the remaining 
PEOPLE v. JOHNSON

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

9

charges. At the second penalty retrial, the prosecution 

presented evidence that defendant called Florence M. after his 

arrest and threatened to harm her if she testified against him.

Florence M. and Priestly visited defendant while he was 

receiving mental health treatment to regain competence to 

stand trial in an unrelated offense. Defendant did not apologize 

to Florence M. or ask about her baby, who had survived the 

attack and was a toddler at the time.

B. Defense Evidence

The defense focused on five themes: lingering doubt 

regarding defendant’s participation in the homicide; the effects 

of defendant’s childhood and background on his behavior; the 

failure of the juvenile court system to help defendant during his 

youth; defendant’s mental illness and abnormal brain activity; 

and defendant’s positive adjustment to prison.

1. Lingering doubt

Defendant presented evidence to show that James Curry, 

one of defendant’s coworkers at Sonoma State Hospital, was 

implicated in the Cavallo murder based on his connection to the 

Bohsei television that was allegedly taken from Cavallo’s house. 

Defendant also presented evidence to suggest that Cavallo did 

not own a handgun at the time he was murdered.

Robert Ferroggiaro worked at Sonoma State Hospital in 

1979 and knew both defendant and Curry. Ferroggiaro testified 

that defendant called him from jail to say that he had purchased 

a television from Curry and needed it delivered to his 

wife. Curry brought the television to Ferroggiaro at work, and 

Ferroggiaro delivered it to defendant’s apartment a few hours 

before the parole search. Defendant’s wife called Ferroggiaro 

after the search to tell him the television had been seized. She 
PEOPLE v. JOHNSON

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

10

told Ferroggiaro that she did not reveal his connection to the 

television because she did not want him to get in 

trouble. Ferroggiaro contacted law enforcement to explain his 

involvement in case his fingerprints were on the television. He 

acknowledged on cross-examination that he remained friends 

with defendant, and that he had told police officers defendant

was “as sane as anyone.”

Gerald Gourley, a former Federal Cartridge Company 

employee and consultant on ammunition and guns, testified 

about the process of marking cartridges with a tool called a 

bunter. He explained that bunters were made by a tool called a 

hob. Gourley further explained that after cartridges are 

stamped with the bunter, they are commingled and packed into 

boxes. He believed that it was possible to determine whether 

two cartridges were struck by a bunter created by the same hob, 

and opined that several cartridges depicted in the prosecution’s 

exhibits appeared to be struck by a bunter created by the same 

hob. 

Cavallo’s ex-wife testified that Cavallo had purchased a 

.22-caliber revolver, not a semiautomatic handgun, to practice 

target shooting with her in the late 1950s. She did not know 

whether he kept the revolver after they divorced, or if he had 

purchased additional firearms.

2. Family history

Psychologist Addison Somerville testified as an expert 

witness concerning the structure, makeup, and migration 

histories of African-American families, and regarding the 

influence of family on individuals. He interviewed defendant

and three of his 10 siblings to assess certain variables that are 

crucial for normal development. 
PEOPLE v. JOHNSON

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

11

Dr. Somerville testified that defendant was born in 

Canton, Mississippi, but moved at age two with his family to 

Detroit, Michigan to live with McClenton, the oldest of his 

siblings. Defendant showed physical signs of malnutrition 

between the ages of three and four, but his family did not 

recognize the problem. Their stepmother was often gone for long 

periods of time, and left defendant and his siblings with minimal 

food. McClenton physically punished defendant by stripping 

him, beating him with a belt, slapping him, and bouncing his 

head on the floor.

Defendant did not know his father. Dr. Somerville opined 

that the lack of parental bonding created emotional deprivation, 

anxiety, and feelings of rejection. By age six, defendant was 

stealing food and hiding it in the basement. He used a collection 

container for a disabilities charity to collect money, which he 

kept to buy food for his family. At ages eight and nine, 

defendant often missed school because he was working odd jobs 

to help take care of his sisters. Defendant and his siblings 

frequently had only biscuits to eat and were told to drink a lot 

of water. Dr. Somerville opined that lack of food and consistent 

interactions at school had a tremendous impact on defendant’s 

social development. Defendant had his first sexual encounter at 

age eight and had engaged in casual relations since then. He 

started smoking marijuana at age 10 and started using alcohol 

around the same time. Defendant’s sister, Mary Lee, took in 

defendant and his siblings but struggled to support them 

financially. One of the sisters resorted to prostitution to secure

money for food. 

Dr. Somerville concluded that defendant’s “early life 

centered around survival, and he seems to have developed a 

total lifestyle which is characterized by self-concern.” He opined 
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Opinion of the Court by Cantil-Sakauye, C. J.

12

that defendant was required to learn a variety of defenses which 

enabled him to experience minimal guilt or remorse, and that 

he lacked the confidence to attempt to change his behavior or 

attitudes. Defendant acted in an impulsive and unpredictable 

manner, denied his behavior when confronted, and was unable

to form close relationships or trust people. Dr. Somerville 

explained that social, cultural, psychological, and economic 

factors all contributed to defendant’s criminal behavior and 

believed that defendant needed to be confined to protect society. 

Dwayne Martin testified about defendant’s time at 

Ypsilanti State Hospital (YSH), a psychiatric facility, in the 

early 1960s. Defendant entered YSH in 1961 when he was 12 

years old. Martin was defendant’s teacher at the hospital. 

Martin explained that the children who came to YSH tended to 

be either juvenile delinquents, autistic, or suffering from a 

psychotic disorder. Martin opined that defendant fell 

somewhere between borderline psychotic and juvenile 

delinquent. He did not know whether YSH’s psychiatrist 

medicated defendant. Defendant was treated for syphilis upon 

arrival at YSH, though Martin did not know how he acquired 

the disease.

Martin testified that defendant did well at YSH. 

Defendant joined the Boy Scouts, took on a leadership role, and 

volunteered to help whenever he could. He was respected by his 

peers, treated the staff warmly, and became less aggressive 

during his stay. The prosecution read prior testimony from 

another YSH teacher, Margaret Yates, who observed that 

defendant was motivated and worked hard. He seemed 

interested in learning new things and his academic performance 

improved. His social interaction also improved, and he took an 

interest in caring for the classroom hamsters and goldfish. 
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Opinion of the Court by Cantil-Sakauye, C. J.

13

Sometime after he left YSH, defendant was committed to 

the Wayne County Youth Home, a juvenile detention facility in 

Detroit. Kenneth Peterson, the chief social worker at the home,

testified that defendant had been committed to the state 

hospital the previous summer, but faced lengthy delays in 

getting transferred. Peterson read from a letter he had sent to 

the chief social worker at the hospital, in which he described 

defendant as having “constant agitating and irritating 

behavior[s]” and being hyperactive, expressing paranoid 

thinking, and being involved in delinquent behaviors. Peterson 

acknowledged that he had never personally worked with 

defendant; rather, he relied on reports from other people when 

writing the letter. A psychiatrist who worked with the youth 

home also testified that the waiting list for children to receive 

mental health treatment was very long and that Caucasian 

children were admitted at a higher frequency than AfricanAmerican children.

When defendant was 16 years old, he was committed to 

the Indiana State Reformatory (the Reformatory) for car theft. 

He was initially housed in a minimum security dormitory 

outside the institution. He escaped just over two weeks later 

and was captured within a day. Defendant was subsequently 

transferred to Indiana State Prison after multiple additional 

disciplinary reports, including for having a knife in his cell, 

assaulting an officer, shouting and yelling on the range, refusing 

a direct order, creating a disturbance, and using threatening 

and provoking language toward an official. He was released 

from the prison in 1971.

A correctional counselor at the Reformatory testified,

describing the institution as a “walled, maximum security 

prison.” It housed individuals ranging from 16 to 60 years old
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Opinion of the Court by Cantil-Sakauye, C. J.

14

who were incarcerated for a variety of felony offenses, including 

murder. Discipline for a minor offense sometimes involved 

standing barefoot on a painted line for hours. Discipline for 

more serious offenses could mean receiving a beating from staff 

and then being taken directly to the hospital because they 

“needed medical attention by the time they got there.” 

3. Evidence of mental disease or defect

Six psychiatrists and neurologists, each of whom had 

evaluated defendant at various times in his life, testified at the 

second penalty phase retrial.

In June 1974, Patton State Hospital (PSH) psychiatrist

James Ramsaran prepared a report concerning defendant’s 

competence to stand trial for forcible assault upon 

Laughlin. After briefly interviewing defendant, Dr. Ramsaran 

concluded that defendant suffered from paranoid schizophrenia 

based on self-reported auditory hallucinations. Dr. Ramsaran 

opined that defendant did not fully understand the charges 

against him and could not assist in his defense. Defendant was 

not particularly cooperative or forthcoming during the 

interview, and Dr. Ramsaran did not have access to any 

previous records.

James Kerns, another psychiatrist at PSH, evaluated 

defendant for admission in July 1974. He diagnosed defendant

with paranoid schizophrenia. Dr. Kerns did not know whether 

defendant received antipsychotic medication prior to his 

admission, but noted that he received medication for about two 

months after his admission. 

Psychiatrist and neurologist Richard Finner evaluated 

defendant at PSH a few days after Dr. Kerns. Dr. Finner agreed 

that defendant suffered from schizophrenia, but opined that it 
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Opinion of the Court by Cantil-Sakauye, C. J.

15

presented as undifferentiated rather than paranoid, meaning it

presented as several forms of the disorder. Dr. Finner

acknowledged while testifying that his diagnosis could have 

been different if he had had more information at the time of his 

evaluation. 

Psychologist Grant Hutchinson testified that he had 

evaluated defendant in 1980 for evidence of brain injury and to 

assess personality and emotional function. Dr. Hutchinson 

found defendant to be of average intelligence with normal 

memory function. He also found no evidence of brain injury, 

despite several incidents of head trauma that defendant

described. He did, however, find an atypical personality profile. 

The results of the Minnesota Multiphasic Personality Inventory

revealed that defendant scored high on the scales of 

schizophrenia, mania, and paranoia. Dr. Hutchinson opined 

that defendant might suffer from paranoid schizophrenia in a 

chronic, residual phase, meaning it was inactive at the time of 

the evaluation. He explained that stress or going off medication 

can cause a person’s schizophrenia to become active. 

Neurologist Sidney Kurn evaluated defendant before the 

second penalty phase retrial. Dr. Kurn’s neurological 

evaluation revealed mild abnormalities: defendant did not feel 

sensation, such as a pin prick, on the right side of his body as 

well as he did on the left side, and reflexes were mildly 

depressed in his legs. Dr. Kurn performed a standard 

electroencephalogram (EEG), the results of which appeared 

normal. A magnetic resonance imaging (MRI) test revealed 

abnormalities in defendant’s basal ganglia, an area of the brain 

connected with movement and planning motor activity. A 

second abnormality appeared in the pons area of the brain, 

which is also connected to motor function. Dr. Kurn performed 
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a computerized EEG, which analyzes brain activity in a more 

advanced manner than a standard EEG. The computerized 

EEG showed unusually high alpha brain-wave activity in 

defendant’s frontal lobes, which control decision making, 

motivation, and judgment. Dr. Kurn explained that this pattern 

of brain-wave activity is typically found in the back of the brain. 

The computerized EEG also revealed an unusually slow 

response to auditory stimulation. The delayed response could 

be the result of epilepsy, damage to the brain, or dysfunction in 

the neurotransmitters in the brain. Dr. Kurn explained that the 

abnormalities he found suggest that defendant’s nervous system 

does not work properly, and therefore functions such as 

judgment, foresight, and self-control are probably impaired. On 

cross-examination, Dr. Kurn acknowledged that another 

neurologist performed a similar evaluation — but not an MRI or 

computerized EEG — on defendant in 1980 and found no 

evidence of neurological impairment or disorder. 

Neuropsychologist Robert Bittle testified as an expert on 

brain disease and dysfunction. Dr. Bittle did not meet 

defendant personally but reviewed several of his psychological 

and neurological reports. Dr. Bittle agreed that the MRI 

revealed structural abnormalities in defendant’s basal ganglia 

and pons regions, likely due to trauma. He opined that people 

with abnormal brain activity in the frontal lobes tend to be 

hyperactive, emotionally overresponsive, and have low stress 

tolerance. He concluded that defendant suffered from antisocial 

personality disorder and paranoid schizophrenia.

4. Behavior in custody

Jerry Enomoto, a previous director of the former

California Department of Corrections (CDC), testified as an 
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17

expert concerning corrections and inmate management. 

Enomoto reviewed defendant’s CDC file from 1979 through the 

time of trial and found only two disciplinary reports. He 

believed that defendant had learned to conform to what was 

expected of him in prison. 

C. Rebuttal Evidence

1. Lingering doubt

Because Curry was unavailable as a witness, the 

prosecution read his prior trial testimony to the jury. Curry had 

testified that he and defendant worked together at Sonoma 

State Hospital in 1978 and 1979. At the end of July 1979, 

defendant asked Curry to hold a television for him. Curry 

agreed and took the television to his girlfriend’s house. Curry 

identified People’s Exhibit 48, a small Bohsei television set, as 

being “similar” to the one he held for defendant. Defendant later 

asked Curry to return the television, and had Ferroggiaro 

retrieve the television from Curry. Defendant’s wife also called 

Curry and asked him to return the television. Curry denied 

selling the television to defendant. 

2. Evidence of mental disease or defect

Psychiatrist Ronald Byledbal evaluated defendant in July 

1979 to determine his competency to stand trial on pending 

charges for assaulting Verna O. Defendant explained that he 

remembered using cocaine and drinking before he argued with 

Verna O., but did not recall stabbing her. Defendant told Dr. 

Byledbal that if he had stabbed Verna O., he would have “done 

a better job” by getting rid of the weapon and leaving town. 

Dr. Byledbal reviewed defendant’s juvenile records, 

several psychological and neurological reports, and transcripts 

of prior testimony in preparation for his testimony in the trial. 
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He concluded that defendant was not a paranoid schizophrenic 

but did suffer from antisocial personality disorder. Dr. Byledbal 

testified that it was his view that the two PSH doctors who 

diagnosed defendant with paranoid schizophrenia were 

incorrect because they had no knowledge of defendant’s prior 

history. Dr. Byledbal opined that a doctor cannot make an 

accurate diagnosis of some patients without knowing any 

background information from a source other than the person, 

and explained that it is easy to “play paranoid schizophrenic 

very well” and fool an evaluator.

Dr. Byledbal testified that defendant’s history was typical 

of antisocial personality disorder, the common characteristics of 

which are hyperactivity, attempting to manipulate and control 

people, lying, and refusing to accept responsibility while 

blaming others. He stated that a person with antisocial 

personality disorder may have aggressive tendencies, but not all 

antisocial people are aggressive. He explained that people with 

antisocial personality disorder can become psychotic under the 

influence of drugs or alcohol, but he did not believe that was the 

case with defendant. 

Psychiatrist Donald Apostle also evaluated defendant in 

July 1979 to determine his competency to stand trial on pending 

charges for assaulting Verna O. Before interviewing defendant, 

Dr. Apostle reviewed the sheriff’s report of the incident, Verna 

O.’s hospital records, and CDC records. Defendant told Dr. 

Apostle that he had no memory of the incident and that “there 

is no way that he could have stabbed this particular woman.” 

Defendant described two prior incidents in which he had 

“blacked out,” including one at PSH and one at home with his 

wife.
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Defendant recounted to Dr. Apostle a similar account of 

the history described earlier: He moved to Detroit at age two, 

was raised by a stepmother and believed his own parents to be 

dead, and that he had an older stepbrother and younger 

stepsister. He had problems in school and stole things to help 

support his stepmother. He was sent to a state hospital in 

Michigan at age 10 for armed theft, where he stayed until age 

13. He was in and out of juvenile hall until he stole a car and 

drove from Michigan to Indiana, where he was arrested and 

incarcerated until 1971. Upon release, he was paroled to the 

custody of his brother in California, after which he attacked 

Florence M. During the interview, defendant told Dr. Apostle, 

“I will be honest with you, Donald, I learned how to get around 

in prison. I learned how to be a sociopath.” Defendant also said 

that he would “never admit this present offense,” because, he 

asserted to Dr. Apostle, it was the first time he had “ever fought 

a case because he just didn’t remember doing it.” 

After reviewing defendant’s neurological and psychiatric 

reports, as well as his juvenile court records, Dr. Apostle opined 

that defendant did not suffer from paranoid schizophrenia or 

any other mental illness. He agreed that defendant suffered 

from antisocial personality disorder based on defendant’s long 

history of criminal behavior, childhood acting out, lack of taking 

responsibility for his actions, belittling of Verna O., and the 

claim that he learned how to be a sociopath in prison. 

II. PENALTY PHASE ISSUES

A. Denial of Faretta Motion

Defendant contends the trial court committed reversible 

error when it denied his request for self-representation under 

Faretta v. California (1975) 422 U.S. 806 (Faretta), made two 
PEOPLE v. JOHNSON

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

20

weeks prior to the scheduled trial date. We conclude the trial 

court properly denied defendant’s motion as untimely.

1. Procedural history

Defendant’s first penalty phase retrial ended in a mistrial 

on February 11, 1991. Four days later, defendant’s attorney, 

Sonoma County Deputy Public Defender Elliot Daum, declared 

a conflict. Daum expressed uncertainty whether the entire 

office had a conflict and asked that the matter be continued. The 

trial court found a conflict as to Daum, but not concerning the

entire public defender’s office.

In May 1991, the matter was transferred back to 

Sacramento County Superior Court for trial, which was initially 

set for September but was later rescheduled for November. At 

a hearing in August 1991, the court was informed that Deputy 

Public Defender Charles Ogulnik had been assigned as 

defendant’s counsel, and that Donald Masuda, a local attorney 

who had done some work on the first penalty phase retrial, was 

appointed as Keenan counsel. (Keenan v. Superior Court (1982) 

31 Cal.3d 424, 428.) In mid-November, defense counsel sought 

and obtained a continuance of the trial date to June 22, 1992.

On June 8, 1992, two weeks before trial was scheduled to 

commence, defendant filed2several written motions in propria 

persona: to proceed in propia persona under Faretta, to 

substitute counsel pursuant to People v. Marsden (1970) 2 

Cal.3d 118, for a continuance, and for discovery of documents in 

 

2 Defendant had one week earlier sent these motions to 

Masuda, asking him to file the pleadings for him because 

Masuda was “close to the court and [i]t would take [defendant] 

at least two weeks to get them certified and then mailed to the 

court.”
PEOPLE v. JOHNSON

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

21

a California State Bar disciplinary proceeding relating to 

Ogulnik. The motion for a continuance stated that “[d]efendant 

has removed counsel of record and needs considerable time to 

rev[ie]w documents, investigate possible defense strateg[ie]s, 

interv[ie]w attorneys for advisory counsel pos[i]tion, as well as 

others that will [be] part of the defense team[,]” and “[t]o deal 

with any and all matters p[er]taining to putting forth a 

creditable [sic] defense.” The motion also stated that “defendant 

will require a substan[ti]al amount of time to rev[ie]w 

documents to determine what creditable [sic] defense could be 

fastened from it.”

The prosecution opposed defendant’s Faretta motion, 

arguing it was untimely. The prosecution also opposed the 

motion to continue.

At a pretrial hearing on June 12, trial counsel indicated 

that they were ready to proceed with trial as scheduled. On 

June 22, a trial judge was assigned to the case, and the parties 

agreed to wait to argue defendant’s motions until they were 

before the assigned judge. On July 6, the assigned trial judge 

heard defendant’s Marsden motion in camera, which also 

included discussion relevant to the Faretta motion. Defendant 

explained that Ogulnik had promised not to contact family 

members without his permission, but did so anyway and then 

lied to him about it. He also felt there were better defense 

strategies than the “sympathy” defense Ogulnik had planned, 

and instead preferred to attack the guilt phase evidence. 

Defendant agreed that Ogulnik had recently put a great deal of 

effort into investigating the guilt phase evidence. He said that 

he and Ogulnik had a personality conflict at the time he filed 

the motion, but the conflict had since been 
PEOPLE v. JOHNSON

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

22

resolved. Nonetheless, he asserted, he still wanted to represent 

himself.

The court resumed the Marsden hearing the following 

day. The court asked defendant to explain his statements that 

he had not been permitted to assist in his defense, and had not 

been provided with copies of materials that the defense had 

obtained or gathered. Defendant replied that he believed the 

defense evidence to date was “not as solid” as the prosecution’s, 

and that “certain investigations or certain research” was either 

not being done or was being done late in the process. Defendant

acknowledged his defense team’s investigative efforts had

increased substantially since the motion had been filed and a 

little before then, too, but he believed the investigation “should 

have been done several months earlier.” He also acknowledged 

that his attorneys were keeping him better informed than they 

had previously been. 

Ogulnik explained that there might have been an 

“innocent misunderstanding on [his] part” as to whether he had 

defendant’s permission to contact family members. Ogulnik 

knew that defendant had expressed to his previous counsel 

similar concerns regarding contacting family, but Ogulnik 

believed that he and defendant had resolved that with a meeting 

“early on” in the representation. Ogulnik’s investigator, Gary 

Dixon, shared Ogulnik’s understanding of the situation. When 

the court asked Ogulnik about defendant’s claim that the team 

got a late start with the investigation, he explained that given 

the age of the case and the prior reversals, the team decided to 

reinvestigate and “take nothing for granted.” Ogulnik explained 

that locating witnesses took a long time, and he understood why,

to defendant, it appeared that they did not investigate matters 

such as lingering doubt, bias, or prejudice. He also explained 
PEOPLE v. JOHNSON

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

23

that he was obligated under the law to investigate the possibility 

of a “psych defense,” but defendant found it to be unnecessary 

and strongly objected. 

Defendant told the court, “I know that right now what I 

know is to be the best defense for me, and what is not going to 

work is my major concern. I discussed it with Mr. Ogulnik. He 

wants to go this way. I want to go this way. He wants to 

investigate this. I don’t think it’s worth anything. . . . It’s my 

life, see. . . . It’s my decision as to how my life should be 

presented to this Court or to a jury, see. Because all good 

intentions, I know he probably feel bad if I die, but badness ain’t 

going to save me.” He acknowledged that tactical disagreements 

as to how the case should be tried served as the basis for his 

motion. The court denied defendant’s Marsden motion.

The court addressed defendant’s Faretta motion in open 

court on July 9, one month after defendant had filed it. The 

court noted defendant’s simultaneous request for a continuance 

and asked how much time he would need to prepare for trial. 

Defendant responded that it would be premature for him to give 

a specific time period. Masuda suggested that defendant would 

need about a year to prepare, and the court agreed that “many 

months at the minimum would be required” for defendant to 

prepare to represent himself. The court expressed concern 

about the timeliness of the motion and requested the district 

attorney leave the room so it could continue the hearing in 

camera. 

The court asked defendant if he had considered filing a 

Marsden or Faretta motion prior to doing so in early June. 

Defendant explained that he had considered such filings the 

previous September, but decided not to do so because he and his 
PEOPLE v. JOHNSON

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

24

attorneys had resolved their differences and “worked out a 

foundation from which we would confer and how we would from 

that point investigate and search out new avenues of approach 

to the case.” He further explained that his previous appellate 

attorney knew he was having problems with Ogulnik and Dixon 

but encouraged him to “sit back and be a lot more patient, and 

see how things develop” with the investigation and 

communications. 

Defendant explained that he again considered filing a 

Faretta motion in January or February 1992, but Masuda and 

Sonoma County Public Defender Marteen Miller had 

encouraged him to be patient and wait a few months to see if 

matters improved. Defendant stated that “nothing [has] 

changed to the point I felt that I would be comfortable, and I still 

felt best that I could represent myself, so I filed it. That was the 

reason for the delay both times. It was good advice from good 

attorneys, and I waited.” He continued, “The only reason I 

delayed . . . was as a result of people asking me because they felt 

that I was being somewhat over judgmental as to Mr. Ogulnik 

and everybody else involved in [the] case.”

The court stated that it needed more time to review 

relevant law and continued the hearing until mid-July. The 

court held another in camera hearing to ask defendant more 

questions regarding both his Marsden and Faretta motions. In 

his Faretta motion, defendant had alleged that counsel refused 

his request to investigate “issues of grave importance” and 

“wasted over five months of valuable time before starting any 

investigation into any matter of concern to him.” The court 

asked defendant to elaborate on his allegations. Defendant

explained that another person had a gun similar to the one 

found at the church a few days after the incident, and he 
PEOPLE v. JOHNSON

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

25

believed that person’s gun could have been the weapon used to 

assault Mary S. His previous attorneys did not undertake such 

an investigation. He asked Ogulnik and Dixon to review the 

matter; they completed the investigation three weeks prior, 

although “to a degree unsatisfactory” to defendant. He also 

requested DNA analysis be done on the blood found on the gun 

located at the church, but was told “it was too little to do a 

special analysis.” He additionally believed that counsel could 

have worked harder to locate witnesses. Defendant

acknowledged that he and his attorneys had different

viewpoints concerning what was important to investigate, but 

he believed that Ogulnik had agreed to also focus on what was 

important to defendant. The court reaffirmed its denial of the 

Marsden motion but did not decide the Faretta motion.

On July 21, 1992, the court denied defendant’s Faretta

motion as untimely. The court acknowledged that most case law 

involving untimely Faretta motions involved motions made the 

night before or the day of trial, but cited People v. Ruiz (1983) 

142 Cal.App.3d 780 as involving an untimely motion made six 

days before trial. The court explained that when assessing

timeliness, it needed to consider the periods of time preceding 

the trial during which defendant had the opportunity or ability 

to evaluate his dissatisfaction with counsel. The court noted 

that Ogulnik had represented defendant since July 1991 and 

found “no persuasive reason why” defendant had not moved

“substantially earlier in the proceedings” to represent himself. 

The court further noted that defendant’s complaints against 

Ogulnik were “in many rather striking ways similar to the 

objections he had against the earlier attorney, Mr. Daum.” 

Given that defendant could have filed the motions sooner, the 

court stated that “the strong suspicion arises that the whole 
PEOPLE v. JOHNSON

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

26

process, at least, has an element in it of interrupting the orderly 

processes and bringing about delays.” It also reiterated “that a 

substantially significant time period would be required” for 

defendant to prepare for trial, resulting in a disruption of trial 

for an extended period. The trial court found, therefore, that the 

Faretta motion was untimely.

The court went on to decide whether to exercise its 

discretion to grant defendant’s untimely motion using the 

factors set forth in People v. Windham (1977) 19 Cal.3d 121, 127

(Windham) (trial court has discretion to grant or deny untimely

Faretta motion based on quality of counsel’s representation, 

defendant’s prior proclivity to attempt to substitute counsel, 

reasons for defendant’s request, anticipated length and stage of 

proceedings, and disruption and delay that might reasonably be 

expected to follow granting Faretta motion). The court observed 

that Ogulnik and Masuda were qualified and experienced 

attorneys, and that their representation of defendant was 

“satisfactory and of good quality.” It noted that defendant had 

a prior history of substituting counsel; he had filed Marsden

motions against Daum in January and April 1991. The court 

reiterated that it found defendant’s reasons for his prior 

Marsden motions to be unpersuasive and his criticisms of 

counsel unjustified. Based on these factors, the court declined 

to grant the untimely motion.

Regarding the length and stage of proceedings, the court 

stated that preparation for the case, involving reviewing 

transcripts of two trials and voluminous police reports, would 

take a long time. It stated: “So, it’s a lengthy proceeding, and 

here we are on the eve of trial with a motion to first replace 

counsel and then to represent himself, with no persuasive 

explanation given for this delayed filing. As I mention, many of 
PEOPLE v. JOHNSON

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

27

the matters complained of have pre-existed.” The court noted 

that the issues between defendant and counsel had existed over 

a period of months and were “not new events that might explain 

why someone has felt the need to make this motion as to what 

amounts to about the eleventh hour.” Finally, the court noted

that the disruption and delay that might reasonably be expected 

to follow would be “considerable” and “certainly would interrupt 

any kind of orderly litigation of this case.” It acknowledged that 

defendant was not responsible for the ten-year hiatus while the 

case was on appeal, but stated that nonetheless “this case is 

vulnerable in the sense that years are passing affecting the 

availability of witnesses and the recall of witnesses and if this 

case has to go off and start over again for the defendant to 

prepare himself, the delay and the loss of witnesses could well 

continue. So, the People run the risks of being significantly 

prejudiced if this case is continued for a significant period of 

time.” 

After additional comments from defendant, the court 

asked Masuda to address on the record defendant’s allegations 

that he delayed filing a Faretta waiver because Masuda had 

asked him to wait. During an in camera hearing, Masuda 

explained that defendant wrote him a series of letters 

expressing concern about Ogulnik’s representation. Masuda 

encouraged defendant to wait because every attorney prepares 

for trial differently “and so he shouldn’t be judgmental. He 

should wait and see to see what kind of results would come up 

and see what efforts were being done.” Masuda said he made 

“sincere efforts” to calm defendant down and assure him that 

“everything was being done that should have been done.” He 

agreed that defendant’s relationship with Ogulnik had had its 
PEOPLE v. JOHNSON

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

28

ups and downs, but believed it was better than defendant’s 

relationship with his previous attorney, Daum. 

Defendant explained that in April he and Ogulnik had “hit 

a snag that wasn’t going to be moved because he had his way of 

wanting to do it. I had my way of feeling how I think it should 

be done, and we couldn’t get along.” Defendant had written a 

letter to Public Defender Miller expressing his dissatisfaction, 

and Miller encouraged defendant to wait so that Miller could try 

to “work it out.” Masuda and defendant agreed that they never 

had a conflict between themselves.

Voir dire commenced on July 28. Shortly after jury 

selection began, the court acknowledged that it had received 

additional documentation related to defendant’s Faretta motion,

including correspondence regarding a State Bar disciplinary 

proceeding involving Ogulnik. The court stated, “I do notice, 

though, that this is an issue you did not really raise when you 

made your [p]ro [p]er motion, that his problems with the State 

Bar affected his competence to represent you in this case. Is 

that — am I correct in that observation or am — I want to give 

you an opportunity to comment on what struck me.” Defendant 

replied, “I have no further comment about it. It was simply to 

assert to the [c]ourt. There is no comment needed.” The court 

stated that the documents did not cause it to reconsider its 

denial of defendant’s untimely Faretta motion. 

2. Analysis

In Faretta, the United States Supreme Court made clear 

that a criminal defendant has a federal constitutional right to 

represent himself if he voluntarily and intelligently so chooses. 

(Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must 

grant a defendant’s request for self-representation if the request 
PEOPLE v. JOHNSON

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

29

is timely and unequivocal, and the defendant makes his request 

voluntarily, knowingly, and intelligently. (Windham, supra, 19 

Cal.3d at pp. 127-128.) If a self-representation motion is 

untimely, however, it is “within the sound discretion of the trial 

court to determine whether such a defendant may dismiss 

counsel and proceed pro se.” (Id. at p. 124.)

We have long held that a Faretta motion is timely if it is 

made “within a reasonable time prior to the commencement of 

trial.” (Windham, supra, 19 Cal.3d at p. 128.) In Windham, we 

explained that the “reasonable time” requirement “must not be 

used as a means of limiting a defendant’s constitutional right of 

self-representation,” but rather to prevent the defendant from 

“misus[ing] the Faretta mandate as a means to unjustifiably 

delay a scheduled trial or to obstruct the orderly administration 

of justice.” (Id. at p. 128, fn. 5.) The high court has 

acknowledged that most lower courts require a defendant to 

make a self-representation motion “in a timely manner,” which 

reflects that “the government’s interest in ensuring the integrity 

and efficiency of the trial at times outweighs the defendant’s 

interest in acting as his own lawyer.” (Martinez v. Court of 

Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)

“[W]e have held on numerous occasions that Faretta

motions made on the eve of trial are untimely.” (People v. Lynch 

(2010) 50 Cal.4th 693, 722 (Lynch), abrogated on other grounds 

by People v. McKinnon (2011) 52 Cal.4th 610; id. at pp. 722-723,

citing People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta 

motion made two days before trial was made “on the eve of trial” 

and was untimely], People v. Valdez (2004) 32 Cal.4th 73, 102 

[Faretta motion made “moments before jury selection was set to 

begin” deemed untimely], People v. Horton (1995) 11 Cal.4th 

1068, 1110 [Faretta motion made on the date scheduled for trial 
PEOPLE v. JOHNSON

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

30

deemed untimely], and People v. Clark (1992) 3 Cal.4th 41, 99-

100 [Faretta motion made several days after case had been 

continued day to day “in the expectation that the motions would 

be concluded and jury selection set to begin at any time,” deemed 

“in effect the eve of trial” and untimely].) We have also held that 

Faretta motions made long before trial are timely. (Lynch, at p. 

723, citing People v. Halvorsen (2007) 42 Cal.4th 379, 434 

[Faretta motion made seven months before penalty retrial jury 

selection commenced was timely]; People v. Stanley (2006) 39 

Cal.4th 913, 932 [Faretta motion made one year before the 

preliminary hearing and nearly two years before trial was 

timely].) “[O]ur refusal to identify a single point in time at 

which a self-representation motion filed before trial is untimely 

indicates that outside these two extreme time periods, pertinent 

considerations may extend beyond a mere counting of the days 

between the motion and the scheduled trial date.” (Lynch, at 

p. 723.)

In Lynch, we pointed out that “in the related context of the 

Sixth Amendment right to select counsel of one’s choice, which 

is also subject to automatic reversal if erroneously denied, the 

high court has ‘recognized a trial court’s wide latitude in 

balancing the right to counsel of choice against the needs of 

fairness [citation], and against the demands of its calendar.’ ” 

(Lynch, supra, 50 Cal.4th at p. 725, citing United States v. 

Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We observed that “a 

trial court may ‘make scheduling and other decisions that 

effectively exclude a defendant’s first choice of counsel’ ” (Lynch, 

at p. 725, citing Gonzalez-Lopez, at p. 152), and “perceive[d] no 

principled basis on which to deny a trial court the opportunity 

to similarly consider the needs of fairness and the demands of 

its calendar in ruling on a request for self-representation, or to 
PEOPLE v. JOHNSON

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

31

accord the defendant seeking self-representation any greater 

liberty to do so than the defendant seeking to select retained 

counsel.” (Lynch, at p. 725.)

Relying on the federal high court’s cases as well as our 

own, we concluded that a trial court may consider the totality of 

the circumstances in determining whether a defendant’s 

pretrial Faretta motion is timely. (Lynch, supra, 50 Cal.4th at 

p. 726.) We held that a trial court may properly consider “not 

only the time between the motion and the scheduled trial date, 

but also such factors as whether trial counsel is ready to proceed 

to trial, the number of witnesses and the reluctance or 

availability of crucial trial witnesses, the complexity of the case, 

any ongoing pretrial proceedings, and whether the defendant 

had earlier opportunities to assert his right of selfrepresentation.” (Ibid.)

In Lynch, the trial court denied as untimely defendant’s

two Faretta motions, the first filed approximately five weeks 

before trial was scheduled to begin,

3

the second motion three 

weeks later. (Lynch, supra, 50 Cal.4th at p. 714.) Based upon 

the totality of the circumstances, we concluded that the trial 

court’s denial of the defendant’s Faretta motions was proper. 

(Id. at p. 726.) We observed that this was a complicated case 

involving three counts of murder and two counts of attempted 

murder, each involving a separate incident and carrying with it 

a possible death sentence. (Ibid.) We also noted that discovery 

was voluminous, and trial preparation complex. (Ibid.) The 

prosecution anticipated calling at least 65 witnesses at the guilt 

 

3 Pretrial motions ultimately commenced eleven days after 

the scheduled trial date in Lynch. (Lynch, supra, 50 Cal.4th at 

p. 721.)
PEOPLE v. JOHNSON

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

32

phase, many of whom were elderly. (Id. at pp. 726-727.) We 

also pointed out that at the time of the Faretta hearing, held

approximately two weeks from the expected start date of 

pretrial motions, defense counsel had indicated that they were 

ready for trial. (Ibid.) We remarked that the case, which had 

endured significant delay, was finally nearing resolution, and 

that the defendant admitted that he would need additional time 

to investigate and prepare his case and could not estimate how 

much additional time he would require until he reviewed the 

discovery and other materials. (Id. at pp. 727-728.)

We did not articulate in Lynch what standard a reviewing 

court should apply in determining whether a defendant’s 

request for self-representation is timely. Defendant urges us to 

apply de novo review in deciding whether his Faretta motion 

was timely filed. We need not decide whether de novo review or 

a more deferential standard is appropriate, however, because 

defendant’s claim fails under either standard.

Based on our independent review of the record and after 

taking into consideration the totality of the circumstances under

Lynch, we conclude the trial court properly denied defendant’s 

Faretta motion as untimely. As noted above, defendant filed his 

Faretta motion two weeks before the scheduled trial date. 

Defendant indicated in his accompanying motion for a 

continuance that he would “need[] considerable time” to review 

documents, investigate possible defense strategies, and prepare 

for trial. Defense counsel estimated defendant would need a 

year to be trial ready and the court agreed that “many months 

at a minimum” would be necessary based on the record. 

Meanwhile, trial counsel advised the court on June 12 that they 

were ready to proceed with trial as scheduled. 
PEOPLE v. JOHNSON

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

33

Moreover, defendant had numerous opportunities to 

assert his right of self-representation earlier.4 Ogulnik had 

been appointed approximately eleven months prior to defendant 

filing his Faretta motion. The trial court reasonably concluded 

it had a “strong suspicion,” given the amount of time defendant 

and Ogulnik had worked together and the similarities in 

defendant’s complaint against Ogulnik and his prior attorney, 

that defendant brought the Faretta motion with the purpose of 

interrupting the process and creating delay. (People v. Marshall

(1997) 15 Cal.4th 1, 26 [Faretta motion may be denied based on 

evidence that defendant’s purpose was to delay proceedings].) 

In addition, because the case had been on appeal and the 

first penalty retrial had ended in a mistrial, more than 13 years 

had elapsed between the crimes against Cavallo and the second 

penalty phrase retrial. The second penalty retrial, which 

carried a possible death sentence, was inherently complex, 

involving evidence of the circumstances of the charged offenses 

as well as two uncharged acts of violence and four separate prior 

felony convictions. The prosecution anticipated calling 20 

witnesses and observed that several were no longer available. 

As the trial court noted, the availability of witnesses, as well as 

witness recall, had declined and would continue to do so should 

there be additional delay. Although the lengthy delay in this 

case cannot be attributed to defendant, “he did not thereby 

 

4 Although defendant seems to imply that his decision to 

represent himself was based, in part, on his discovery of the 

State Bar disciplinary proceeding against Ogulnik, defendant 

did not include this information in his Faretta motion or raise it 

during the hearings on the motion, and, as observed earlier, he 

declined the court’s invitation to elaborate on why he failed to 

do so.
PEOPLE v. JOHNSON

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

34

escape any responsibility for timely invoking his right to selfrepresentation.” (Lynch, supra, 50 Cal.4th at p. 727.)

Defendant asserts that most federal courts have concluded 

that a Faretta motion is timely as a matter of law if it is made 

before trial, unless the motion is made for the purpose of delay. 

(See, e.g., Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784; 

U.S. v. Lawrence (4th Cir. 1979) 605 F.2d 1321, 1325; Chapman 

v. U.S. (5th Cir. 1977) 553 F.2d 886, 894.) Although we

recognize that some federal appellate decisions have adopted a 

different approach, we see no compelling reason to reconsider

the standard set forth in Lynch at this time. Indeed, in Lynch 

we considered and rejected the idea of a bright-line rule, 

explaining that “nothing in Faretta or its progeny either 

expressly or implicitly precludes consideration of factors other 

than the number of weeks between the self-representation 

motion and the trial in determining timeliness . . . .” (Lynch, 

supra, 50 Cal.4th at p. 725.) We further note that sister states 

have also adopted a timeliness test consistent with Lynch. (See, 

e.g., Lyons v. State (Nev. 1990) 796 P.2d 210, 214 [if Faretta 

request can be granted without need for a continuance, request 

should be granted; otherwise, request may be denied as 

untimely if there is no reasonable cause to justify the late 

request]; Guerrina v. State (Nev. 2018) 419 P.3d 705, 709, 

quoting Lynch, supra, 50 Cal.4th at p. 724 [Faretta “ ‘nowhere 

announced a rigid formula for determining timeliness without 

regard to the circumstances of the particular case’ ”].)

We therefore conclude the trial court did not err when it 

determined that defendant’s Faretta motion was untimely and 

denied it on that basis. 
PEOPLE v. JOHNSON

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

35

B. Batson/Wheeler Motion

Defendant contends the trial court erred when it found he 

had not established a prima facie case of discrimination after 

the prosecutor used three of his first 15 peremptory challenges 

to strike three of the five African-American jurors who had been 

seated. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); 

People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We

conclude there was no error.

1. Procedural background

Before conducting individual voir dire, the trial court 

instructed all prospective jurors to complete an eleven-page 

written questionnaire and, if applicable, a hardship form. 

Following hardship excusals, prospective jurors returned for 

individual questioning over the course of several days. 

Prior to preliminary voir dire of prospective juror Kenneth 

M., who was African-American, the prosecutor revealed that he 

had run a computer criminal history check “on some of the 

jurors” and discovered that Kenneth M. had two misdemeanor 

convictions. The prosecutor observed that Kenneth M. had 

checked “no” on his jury questionnaire in response to the 

question asking if he had ever been accused of or arrested for a 

crime. The prosecutor requested the court to examine the juror 

for misconduct and dismiss him for lying. Defense counsel 

relayed that he had previously asked the prosecutor if he had 

checked all the jurors, and the prosecutor had said no. Defense 

counsel wondered whether the prosecutor had run a criminal 

record check on only African-American prospective jurors. The 

prosecutor responded, “I don’t think I am obliged to answer that 

inquiry.” Defense counsel said, “I am just kind of curious why 

he would run a check on Kenneth [M.] when his questionnaire, 
PEOPLE v. JOHNSON

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

36

itself, doesn’t indicate that he would be lying or lead one to 

suspect that maybe he’s misinforming the Court or us with 

respect to his background. I just find it very curious.”

The court agreed that it could not compel the prosecutor

to explain his reasoning, but stated that the prosecutor’s state 

of mind would be relevant if a Batson/Wheeler challenge arose 

later. When defense counsel explained that the defense did not 

have access to the computer data that the prosecutor had, the 

prosecutor replied that he would be happy to check on anybody 

the defense might request. Defense counsel replied, “[Y]our 

Honor, our request would be that we just have the information 

as to all the jurors that [the prosecutor] ran . . . and the 

information that he obtained.” The prosecutor explained that 

he did not have time to check on every juror, but rather, was 

“going to check certain jurors when they spark [his] interest.” 

He reiterated that if a juror sparked the defense’s interest, he 

would run a check on the requested juror. 

Defense counsel stated that “a Wheeler motion is always 

something that could occur in any case of this nature, and I 

think we should always be aware of what’s going on and what’s 

happening with respect to any potential Wheeler motion that 

may be made, and I don’t see why [the prosecutor] would object 

to informing us as to which jurors he ran a check on so that we 

have the same information with respect to those jurors.” The 

prosecutor responded that “a Wheeler motion requires that there 

be made some kind of prima facie case. That’s why, frankly, for 

the record, I am objecting to disclosing why I checked certain 

jurors and which ones I checked because they have to make a 

prima facie case. The fact that I checked one and found a record 

doesn’t make a prima facie case.” The trial court agreed with 
PEOPLE v. JOHNSON

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

37

the prosecutor, stating, “That’s what I perceive also, and that’s 

why I haven’t agreed to order such disclosure.” It ultimately 

directed the prosecutor to disclose “any juror that he ran and in 

running gained some information that has not been clearly 

disclosed by that juror in the questionnaire or here in court.” It 

also permitted defense counsel to submit particular names in a 

sealed envelope for background checks. After both sides 

questioned Kenneth M., the prosecutor withdrew his request to 

dismiss him from the jury for misconduct and both sides passed 

for cause.

Jury selection began the following afternoon. The jury

pool consisted of 56 people, seven of whom identified themselves 

on the jury questionnaire as African-American or Black, the 

same race as defendant.

After the prosecutor exercised his initial peremptory 

strike, the first African-American juror, Danella D., was seated. 

The prosecutor exercised three peremptory challenges and then 

passed. The defense exercised two challenges, and the 

prosecutor struck another juror. After the defense used another 

peremptory challenge, the second African-American juror, 

Hazel D., was seated. The prosecution again accepted the panel 

as constituted. After each side exercised additional challenges, 

the third African-American juror, Lois G., was seated. Lois G.

was absent from proceedings that day “by understanding and 

agreement,” and still available for jury duty. The defense 

passed, and the prosecutor used his tenth peremptory challenge 

to strike Lois G. Defense counsel then raised a Batson/Wheeler

motion. The court denied the motion, noting that the prosecutor

had exercised one of its 10 peremptory challenges against an 

African-American juror, and two African-American jurors were 

still seated in the box.
PEOPLE v. JOHNSON

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

38

Voir dire continued, and the prosecutor exercised two 

more peremptory challenges. The fourth African-American

prospective juror, Sharon H., was seated. After the defense 

passed, the prosecutor exercised his thirteenth challenge to 

excuse Sharon H. The defense exercised another challenge and 

the prosecution passed. Both sides exercised additional 

challenges before Shanna H., the fifth African-American

prospective juror was seated. The prosecutor used his fifteenth 

challenge to excuse Shanna H.

The defense made a second Batson/Wheeler motion, 

arguing that the prosecutor had excused three AfricanAmerican jurors, each of whom had indicated on her

questionnaires an ability to vote for the death penalty. The 

prosecutor acknowledged that he had excused three AfricanAmerican jurors but argued that he “left two. I don’t think that 

quite reaches a prima facie case yet.” The court ultimately 

agreed, concluding, “I am not persuaded that three out of five 

with two remaining in the jury box being passed, that is a

statistically anything event showing a pattern of intent to 

exclude or minimize” the presence of African-American jurors. 

When voir dire resumed, each side exercised one more 

peremptory challenge and then passed. Before the court could 

swear in the panel, a prospective juror informed the court that 

she was “quite uncomfortable” with the responsibility of having 

to decide whether a person should live or die. After the court 

questioned the juror, the parties agreed to reopen jury selection 

and allow the prosecutor to exercise a peremptory challenge to 

strike the juror. The defense exercised four remaining 

peremptory challenges before Wayde B., the sixth AfricanAmerican prospective juror on the panel, was seated. Both sides 

accepted the jury as constituted. At the close of regular jury 
PEOPLE v. JOHNSON

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

39

selection, 48 prospective jurors had appeared in the box. The 

prosecution had exercised 3 of 17 strikes on African-American 

jurors. Three of the 12 seated jurors were African-American.

The court then called three alternate jurors to be seated, 

including Kenneth M. The prosecutor used his second of three 

additional peremptory challenges to remove Kenneth M. The 

defense raised its third Batson/Wheeler motion, arguing that 

Kenneth M. was excluded on the basis of race and “based on the 

fact that the District Attorney used information available only 

to him to check the background on [Kenneth M.]” The trial court 

denied the motion. It stated that the prosecutor had “disclosed 

the information discovered prior to voir dire, so that adequate 

and thorough voir dire could be afforded to all sides,” and found 

no fault in the prosecution “conducting his limited investigation 

of jurors and disclosing the outcome of it.” The court also 

determined that the statistics did not support a prima facie case 

of discrimination. 

At the close of alternate jury selection, 54 of the 56 

prospective jurors had appeared in the box. The prosecution had 

exercised a total of 4 of 19 strikes on African-American jurors. 

The seated jury consisted of three African-American jurors, 

seven Caucasian jurors, one Hispanic juror, and one mixed-race 

juror.

2. Analysis

“Both the United States and California Constitutions 

prohibit discriminatory use of peremptory strikes.” (People v. 

Reed (2018) 4 Cal.5th 989, 999 (Reed).) To assess whether such 

prohibited discrimination has occurred, our Batson/Wheeler 

inquiry follows three distinct steps. (Ibid.) “First, the defendant 

must make out a prima facie case ‘by showing that the totality 
PEOPLE v. JOHNSON

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

40

of the relevant facts gives rise to an inference of discriminatory 

purpose.’ [Citations.] Second, once the defendant has made out 

a prima facie case, the ‘burden shifts to the State to explain 

adequately the racial exclusion’ by offering permissible raceneutral justifications for the strikes. [Citations.] Third, ‘[i]f a 

race-neutral explanation is tendered, the trial court must then 

decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted (Johnson).) 

The trial court denied each of defendant’s Batson/Wheeler

motions at the first stage of the inquiry after ruling defendant

failed to establish a prima facie case of discriminatory intent. 

Prior to Johnson, the California standard at this step “was to 

show that it was ‘more likely than not’ that purposeful 

discrimination had occurred.” (People v. Carasi (2008) 44 

Cal.4th 1263, 1293.) However, in Johnson ̧ the United States 

Supreme Court rejected that analysis as too stringent under the 

federal Constitution and held that “a prima facie burden is 

simply to ‘produc[e] evidence sufficient to permit the trial judge 

to draw an inference’ of discrimination.” (Ibid.) 

We review the trial court’s ruling “independently where, 

as here, the trial predated Johnson and it is not clear from the 

record whether the trial court analyzed the

Batson/Wheeler motion with this low threshold in mind.” 

(People v. Scott (2015) 61 Cal.4th 363, 384.) We examine the 

entire record when conducting our review. (Reed, supra, 4 

Cal.5th at p. 999.) Certain facts, however, are considered 

especially relevant. “These include whether a party has struck 

most or all of the members of the venire from an 

identified group, whether a party has used a disproportionate 

number of strikes against members of that group, whether the 
PEOPLE v. JOHNSON

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

41

party has engaged those prospective jurors in only desultory voir 

dire, whether the defendant is a member of that group, and 

whether the victim is a member of the group to which a majority 

of remaining jurors belong. [Citation.] We may also consider 

nondiscriminatory reasons for the peremptory strike that 

‘necessarily dispel any inference of bias,’ so long as those reasons 

are apparent from and clearly established in the record.” (Id. at 

pp. 999-1000.) 

Defendant challenges the court’s denial of his second 

Batson/Wheeler motion. He asserts ample evidence supports a 

prima facie case. Defendant argues that at the time he made 

the second motion, the prosecutor had struck three of five 

African-American jurors and had established a pattern of 

striking an African-American juror whenever there were more 

than two on the panel. Defendant also asserts that the 

prosecutor appeared to conduct a criminal background check on 

only one potential juror: Kenneth M., an African-American. 

Defendant further notes that he is African-American and at 

least two of the victims (Cavallo and Mary S.) were Caucasian, 

and the struck African-American jurors all possessed traits the 

prosecution could have viewed favorably. We conclude, based on 

the entire record, that defendant has not shown that the totality 

of relevant facts creates an inference of discriminatory intent.

Defendant first contends the prosecutor’s “strike rate” 

establishes a prima facie case of discrimination because he 

exercised a disproportionate number of peremptory challenges 

against African-American jurors. Defendant points out that at 

the time of the second Batson/Wheeler motion, the prosecutor

had used 20 percent of his strikes on African-American jurors —

3 of 15 — despite the proportion of African-American jurors on 

the panel being 12 percent — 5 of 41. He further notes that the 
PEOPLE v. JOHNSON

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

42

prosecutor’s excusal rate for African-American jurors was 

60 percent — 3 of 5 — whereas his exclusion rate for the rest of 

the panel was 34 percent — 12 of 35. 

Considered in the context of the entire jury selection 

process, the prosecutor’s strikes do not support an inference of 

discrimination. (Reed, supra, 4 Cal.5th at p. 1000 [strikes made 

after the Batson/Wheeler challenge are considered in assessing 

discriminatory intent].) The prosecutor exercised 17 strikes

during the selection of regular jurors, and two more while 

selecting alternates. Three of the prosecutor’s 17 strikes during 

regular jury selection (18 percent) — and 4 of 19 overall 

(21 percent) — targeted African-American jurors. These figures 

“barely” exceed the 13 percent ratio (7 of 54) of AfricanAmerican jurors in the venire, and do not by themselves suggest 

an inference of discrimination. (Ibid. [finding 46 percent strike 

rate of African-Americans compared to 34 percent of AfricanAmerican jurors in the venire to be insignificant].) 

Nor does the exclusion rate of African-American jurors 

support an inference of discriminatory purpose. At the close of 

regular jury selection, the prosecutor had struck 3 of 6 AfricanAmerican jurors — an excusal rate of 50 percent — and had 

struck 14 of 42 non-African-American jurors — an excusal rate 

of 33 percent. At the close of alternate jury selection, the 

prosecutor had struck 4 of 7 African-American jurors — an 

excusal rate of 57 percent — and had struck 15 of 47 nonAfrican-American jurors — an excusal rate of 32 percent. 

Although the prosecutor excused a higher percentage of AfricanAmerican jurors, the numbers are subject to a variety of 

interpretations. (See, e.g., People v. Jones (2011) 51 Cal.4th 346, 

362 [peremptory challenges of 60 percent of African-American 

jurors “not particularly troubling” when strike rate of African-
PEOPLE v. JOHNSON

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

43

Americans was only slightly higher than their percentage on the 

jury].) We note, for example, that the numbers could also 

indicate that African-American jurors were overrepresented in 

the box compared to their representation in the candidate pool: 

constituting 25 percent of the seated panel (3 of 12) as compared 

to 13 percent of the available pool (7 of 54). (See People v. 

Hartsch (2010) 49 Cal.4th 472, 487-488 (Hartsch).) In other 

words, African-American representation on the seated jury was 

almost twice that reflected in the eligible jury pool. In any 

event, in light of the small sample size, we assign no great 

weight to the prosecutor’s excusal rate. (People v. Harris (2013) 

57 Cal.4th 804, 835.)

Moreover, the prosecutor repeatedly accepted the jury 

when two African-American jurors were on the panel, and 

ultimately accepted a panel with three African-American jurors.

“While acceptance of one or more black jurors by the prosecution 

does not necessarily settle all questions about how the 

prosecution used its peremptory challenges, these facts 

nonetheless help lessen the strength of any inference of 

discrimination that the pattern of the prosecutor’s strikes might 

otherwise imply.” (Reed, supra, 4 Cal.5th at p. 1000; see also 

People v. Clark (2011) 52 Cal.4th 856, 906.) We have previously 

held that the prosecutor’s acceptance of a jury panel including 

multiple African-American prospective jurors, “while not 

conclusive, was ‘an indication of the prosecutor’s good faith in 

exercising his peremptories, and . . . an appropriate factor for 

the trial judge to consider in ruling on a Wheeler objection . . . .’ ” 

(Hartsch, supra, 49 Cal.4th at p. 487.) Viewed in its overall 

context, the pattern of strikes does not suggest an inference of 

discrimination. 
PEOPLE v. JOHNSON

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

44

Defendant also asserts the prosecutor’s unjustified 

investigation into prospective juror Kenneth M. raises a 

suspicion that he was attempting to limit the participation of 

African-American jurors, arguing that the prosecutor appeared 

to conduct a criminal background check on only Kenneth M. The 

prosecutor’s responses to the court, however, suggest that he did 

conduct a criminal history check on additional jurors. Although 

the prosecutor did not disclose which prospective jurors he 

investigated further, he told the court that he “was checking

some of the jurors through the computer system” (italics added) 

and that he was “going to check certain jurors when they spark 

[his] interest” (italics added), indicating that Kenneth M. was 

not the only juror he investigated. Rather, the record suggests

that Kenneth M. may have been the only juror checked who 

provided inaccurate information on his questionnaire. Although 

the prosecutor’s background check on some jurors, including

Kenneth M., may be probative concerning the issue of 

discriminatory intent, we conclude that this fact, without 

additional indicia of discriminatory purpose,

5

falls short of 

establishing a prima facie case. We also note that the record 

does not reveal any significant disparities in the nature or 

extent of the prosecutor’s questioning of the African-American 

prospective jurors, and defendant does not argue otherwise. 

In his dissent, Justice Cuéllar asserts that the prosecutor’s 

“unwillingness” to answer defense counsel’s question whether

he checked only African-American jurors in itself constitutes an 

 

5

If there were evidence that the prosecutor in fact targeted

only African-Americans for background checks, we would agree 

that such conduct would plainly constitute a prima facie case of 

discrimination. But there is no such evidence here.
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Opinion of the Court by Cantil-Sakauye, C. J.

45

“implicit[] admission of discriminatory conduct.” (Dis. opn. of 

Cuéllar, J., post, at p. 6.) We do not draw the same conclusion 

from the record. First, it is not incumbent on a prosecutor to 

respond to questions from defense counsel; questions to 

opposing counsel are properly funneled through the court. A 

prosecutor may have numerous innocuous reasons for not

engaging with defense counsel, including not wanting to 

encourage further probing into a topic relating to jury selection 

or trial strategy. Indeed, in this case, defense counsel’s query 

quickly morphed into repeated requests for the disclosure of “all 

the jurors” on which the prosecutor ran checks. Neither 

defendant nor Justice Cuéllar argue that the prosecutor was 

obligated to disclose this information, or that the failure to do so 

is evidence of discriminatory intent.

Second, even assuming that a response was required, the

transcript of proceedings shows that the prosecutor did, in fact,

give a nondiscriminatory reason concerning why he had not 

initially answered defense counsel’s query. Specifically, the 

prosecutor told the court that he was objecting to defense 

counsel’s questions relating to the investigation of prospective 

jurors because defense counsel had not yet “ma[d]e a prima facie 

case” under Batson/Wheeler. The trial court agreed with the 

prosecutor’s assessment and declined to order disclosure on that 

basis. Thus, the record indicates that the prosecutor preferred 

not to reveal anything related to his jury selection and trial

strategy unless ordered to do so, and he believed that defense 

counsel had not demonstrated that a response was required. 

Indeed, the prosecutor undertook the same approach following 

defendant’s second Batson/Wheeler challenge, explaining that 

“if [the court] believe[s] [defendant] made a prima facie case 

based on what is before [the court], then I am required to 
PEOPLE v. JOHNSON

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

46

respond.” That the prosecutor, citing Wheeler, declined defense 

counsel’s request that he disclose information regarding the 

jurors he checked, does not constitute in itself “compelling 

evidence” of unlawful scrutiny. (Dis. opn. of Cuéllar, J., post, at 

p. 1.)

In short, the prosecutor was under no obligation to 

respond to defense counsel’s question, and his stated reason for 

not answering it is innocuous and credible. We decline to adopt 

Justice Cuéllar’s incongruous reasoning that, despite the trial 

court’s finding that no prima facie showing of discrimination 

had been made, the prosecutor’s refusal to answer defense 

counsel’s query nonetheless gives rise to a prima facie inference 

of discriminatory purpose. We conclude that the prosecutor’s 

refusal to answer defense counsel’s question does not establish, 

alone or together with other circumstances, a prima facie case 

of discrimination. 

Finally, defendant emphasizes that Cavallo and Mary S. 

are both Caucasian while he is African-American. Although the 

prosecution presented evidence that defendant committed 

violent acts against four additional victims, the races of these

individuals are unknown. We acknowledge that when the race 

of the defendant is different from that of the victim, and the 

victim is a member of the group to which the majority of 

remaining jurors belong, this circumstance is one of many that 

is relevant to whether a prima facie case existed. (See Johnson, 

supra, 545 U.S. at p. 167; Wheeler, supra, 22 Cal.3d at 

p. 281.) However, as indicated above, because we have 

concluded that none of the other “especially relevant factors” —

“whether a party has struck most or all of the members of the 

venire from an identified group, whether a party has used a 

disproportionate number of strikes against members of that 
PEOPLE v. JOHNSON

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

47

group, [and] whether the party has engaged those prospective 

jurors in only desultory voir dire” (Reed, supra, 4 Cal.5th at 

pp. 999-1000) — are present, we do not infer discriminatory 

intent based solely on the fact that the known race of two of the 

victims is the same as that of a bare majority — 7 of 12 — of the 

seated jurors.

6

Based on the entire record, we conclude the trial court did 

not err when it ruled that defendant had failed to show a prima 

facie case of discriminatory intent.7

 

6 We also disagree with Justice Cuéllar’s characterization of 

the trial court’s deeming the races of the victims and defendant 

as a “side issue that we need not get into”; rather, the record 

shows that the trial court made this comment in the context of 

explaining that a defendant need not be the same race as the 

excused jurors in order to make a Batson/Wheeler motion.

7 Because we have concluded that defendant failed to raise

an inference of discrimination, we need not resort to examining 

the record for obvious race-neutral reasons for the prosecutor’s 

peremptory strikes that would “ ‘necessarily dispel any 

inference of bias[.]’ ” (Reed, supra, 4 Cal.5th at p. 1000.) 

However, because the dissenting justices rely heavily on the 

characteristics of the excused African-American jurors, we feel 

it appropriate to note that, at least with respect to three of the 

four jurors, there do appear to be “clearly established” and 

“apparent” nondiscriminatory reasons for their excusal. (Ibid.) 

Kenneth M. lied on his jury questionnaire about two criminal 

convictions. Shanna H. wrote that her son had been arrested 

twice, including once for rape, and she testified that she felt the 

court process was unfair and that her son may have been coerced 

into accepting a plea bargain for a crime he did not commit. 

Sharon H. had worked extensively with abused and troubled 

adolescents, including youths from juvenile courts, and she 

stated that she had a “heart” for “what we call throw-away kids.” 

Defendant’s mitigation case focused on childhood abuse and 
PEOPLE v. JOHNSON

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

48

C. Removal of Juror for Cause

Defendant contends the trial court erred when it excused 

prospective juror Laura C. for cause based on her opinions and 

beliefs regarding the death penalty. Defendant asserts the court 

asked misleading questions and provided inaccurate 

information to the juror regarding the nature of a jury’s 

sentencing discretion.

In her jury questionnaire, Laura C. stated that she was a 

legal secretary and identified herself as a practicing Catholic. 

When addressing whether she would automatically refuse to 

vote in favor of the death penalty, she wrote, “No. As a fairminded person and legal secretary familiar with legalities I 

would make a judgment based on all factors before making any 

decision.” When asked about her general feelings regarding the 

death penalty, she explained, “I would prefer a society where 

people lived happily together and no crimes ever happened —

but that is not the real world — so I understand that for those 

people who commit crimes or who think about it, the death 

penalty must be there as a reminder of what the consequence 

might be because of their actions. This penalty thus protects the 

 

neglect; to the extent the prosecutor anticipated that defense, 

Sharon H. would clearly be an undesirable juror from the 

prosecution point of view. These revelations provide a readily 

apparent, race-neutral basis to excuse each of these prospective 

jurors. Although the fourth juror, Lois G., presented no such 

obvious grounds for excusal, the existence of readily apparent 

grounds for three of the four disputed prospective jurors would 

undercut, to some degree, whatever possible inference of 

discrimination that might otherwise arise from the pattern of 

excusals considered in isolation. But once again, here we 

conclude that the statistics alone did not give rise to an inference 

of discrimination.
PEOPLE v. JOHNSON

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

49

peaceful people.” Concerning whether she had any religious 

objections to the death penalty, she wrote, “Yes/No. I believe 

people should live their lives for as long as God lets them, 

despite what kind of life that may be — a person should 

experience his whole life — however, I believe that the death 

penalty needs to be a reminder to all who would endanger 

others.” 

During voir dire, the court asked Laura C. if the answers 

she provided on the questionnaire accurately reflected her

feelings regarding the death penalty, and she confirmed that 

they did. She confirmed that she would be able to follow the law 

and guidance given to the jurors. The court explained, “You 

understand the law does not — well, in a sense it mandates a 

result in some situations. If you find that the mitigating 

circumstances are substantial, that they outweigh the 

aggravating or that they’re equal to the aggravating, they are 

balanced. Then, in that situation, the law says you cannot 

return a death penalty, but you can only return life without 

parole.” Laura C. replied, “Yes. I am happy for that.” The court 

continued, “If, on the other hand, the aggravating circumstances 

substantially outweigh the mitigating, at that point, the law 

does not mandate the death penalty, but it says [the jurors] still 

have the option of choosing not to impose the death penalty, if 

they feel that that is not the most appropriate punishment. . . . 

Now, is there anything in that structure that would cause you 

any problems?” Laura C. said, “No.” 

Defense counsel stated that he was “a little bit confused” 

about the juror’s attitudes concerning the death penalty based 

on her answer that a person should experience his whole life. 

Counsel asked, “Are you of the belief that only God can take a 

life?” Laura C. replied, “That would be my number one belief.” 
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Opinion of the Court by Cantil-Sakauye, C. J.

50

She acknowledged the law in California, and said, “I have tried 

to integrate my Christian beliefs with the real live world that 

we live in. . . . I believe that when there is a law, and I need to 

decide on that law, I do use my Christian values, too, my 

Christian values here in this situation. You have not only a civic 

responsibility, you have a Christian responsibility to be true to 

your decision, to be fair to, not only my Christian values, but 

also to society. It’s a very hard thing to integrate, but somehow 

I feel that I am able to do that.”

Defense counsel said, “The judge, a little bit earlier, told 

you that even if you found the evidence that the district attorney 

put on was — was substantially greater, the aggravating 

evidence was substantially greater than the mitigating 

evidence, you could still return a life without the possibility of 

parole verdict, and that would still be following the law. Do you 

feel comfortable with that concept?” Laura C. replied that she 

did. Defense counsel continued, “And if eleven other jurors were 

to tell you quite candidly, and with no reservation, that the 

district attorney had proven — has met his burden, and they all 

feel the death penalty is appropriate, and that’s the way they 

desire you to vote or give your individual opinion. If you still felt 

that this was a life without possibility of parole, could you stand 

by your individual conviction?” Laura C. replied, “I am glad you 

brought that up because I would, of course, very candidly take 

the lesser, life imprisonment without parole. I would like — I 

would prefer that judgment over the death penalty in this 

particular situation if aggravating circumstances were more, so, 

and I have that choice. I have the freedom of choice, and that’s 

not against the law. I have that choice, and it’s legal, and I 

would go for the life imprisonment.” 
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Opinion of the Court by Cantil-Sakauye, C. J.

51

Defense counsel clarified, “So, no matter what evidence 

the district attorney put on, you would only feel life without 

possibility of parole would be suitable?” Laura C. replied, “If 

that is my legal choice, if I have a choice legally to do that, that’s 

the way I would vote.” Defense counsel reminded Laura C. that 

she previously said she would feel comfortable following the law

and asked if there were circumstances in which she could apply 

the death penalty. Laura C. explained, “If it lent more over to 

the aggravating side, and that’s a very good question, possibly 

not. I would prefer the life imprisonment without parole.” 

The prosecution challenged Laura C. for cause. The court 

asked the juror: “[C]orrect me if I am wrong, but I get the 

impression from the discussion we’ve had here, this morning, 

that you could return a death penalty if the law basically 

compelled it?” Laura C. nodded her head. The court continued, 

“Because you’re willing to and feel the obligation to follow the 

law?” Laura C. replied, “That’s right.” The court said, “Okay. 

But in this case, in fact, in any death penalty case, the law does 

not ever compel a death verdict. Even when the aggravating 

factors clearly and substantially outweigh the mitigating 

factors, the law allows the juror — the law says the jurors may 

impose the death penalty, but the law does not compel it. It 

allows a juror to or a jury to decide, in spite of the heavy 

aggravating factors that for whatever reason might be mercy, 

they choose to give life without the possibility of parole, so, there 

is always an option. The law never compels the death penalty.” 

Laura C. acknowledged the court’s comments with “okay.” The 

court continued, “And what it strikes me is since you prefer, you 

made it clear you prefer, significantly prefer, life without the 

possibility of parole to the death penalty, and if the law is never 

going to force you, or direct you, or compel you to return a death 
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52

penalty, is it true that, in effect, you would be returning a life 

without possibility of parole? That would be your vote in 

virtually every case?” Laura C. replied, “I would have to say, 

yes. . . . I didn’t realize that, you know. It went over my head 

that there isn’t a law that said that compels you. There are no 

guidelines. There are no factors. . . . My answer is just, yes.” 

The court granted the prosecution’s challenge for cause.

“It is well established that opposition to the death penalty 

does not by itself disqualify a juror from sitting on a capital 

case.” (People v. Penunuri (2018) 5 Cal.5th 126, 141; see 

Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) A prospective 

juror may be excluded for cause only when “the juror’s views 

would ‘prevent or substantially impair the performance of his 

duties as a juror in accordance with his instructions and his 

oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424.) “ ‘[I]n 

applying this standard, reviewing courts are to accord deference 

to the trial court. . . . [W]hen there is ambiguity in the 

prospective juror’s statements, “the trial court, aided as it 

undoubtedly [is] by its assessment of [the venireman’s] 

demeanor, [is] entitled to resolve it in favor of the State.” ’ ” 

(Penunuri, at p. 141.)

Laura C.’s answers during voir dire indicated that 

although she understood the law and was not opposed to the 

death penalty generally, she would be unwilling to return a 

verdict of death no matter what evidence the prosecution 

presented. Indeed, after the trial court informed her that the 

law never compels a death verdict, she confirmed that unless 

she was forced or compelled to do otherwise, she would return a 

verdict of life without the possibility of parole in virtually every 
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53

case. Although her answers on the jury questionnaire indicated 

that she could follow the law as instructed, she admitted to the 

court that upon realizing she would not be compelled to return 

any specific verdict, she would not be open to returning a verdict 

of death. We conclude that Laura C.’s responses sufficiently 

indicated that her views would prevent or substantially impair 

the performance of her duties as a juror, and therefore the trial

court did not abuse its discretion in granting the prosecution’s 

request to remove her for cause.

D. Consideration of Aggravating Evidence

Defendant contends the trial court erred in permitting the 

jury to consider the crimes against Mary S. as aggravating 

evidence under section 190.3, factor (b) because there was 

insufficient evidence that he was the assailant.

As noted above, in his first trial, defendant was found 

guilty of raping and assaulting Mary S. On appeal, we 

ultimately reversed these convictions after concluding that 

Mary S.’s posthypnotic identification of defendant was 

inadmissible under Shirley, supra, 31 Cal.3d 18. (People v. 

Johnson, supra, 47 Cal.3d 576.)

At the second penalty phase retrial, the prosecution

introduced evidence of the rape and assault as aggravating 

evidence under section 190.3, factor (b), rather than retrying the 

offenses. The defense unsuccessfully moved in limine to have 

the evidence excluded or tried by a separate jury. 

The prosecution introduced evidence suggesting that 

defendant used the pistol and bullets stolen from Cavallo’s 

residence to attack Mary S. After the prosecution concluded its 

case, the defense argued that insufficient evidence supported a 

finding that defendant committed the crimes against Mary S., 
PEOPLE v. JOHNSON

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

54

and likened its argument to a motion for acquittal. The defense 

noted that Mary S. had not identified defendant as her 

assailant, and the only evidence against him was a fingerprint 

on the gun clip, “a moveable object.” During a hearing on the 

defense’s motion outside the presence of the jury, the prosecutor

acknowledged that the gun’s magazine was a moveable object 

but argued that “a magazine is an object that normally is not 

one that is touched by someone in a casual fashion. The 

magazine or a clip belongs inside the weapon and is normally 

carried there.” He continued, “[T]he magazine is not in a 

position where it’s casually touched, as though someone were 

handing around a weapon at a weenie roast somewhere, and you 

just happen to touch it. All right. It’s inside the handle of the 

weapon, and the fingerprint is on a place where it would 

normally be to load the weapon.” The prosecutor went on to 

summarize relevant testimony about the fingerprint found on 

the magazine and testimony that Cavallo owned a similar 

weapon. The court denied defendant’s motion, concluding that 

sufficient evidence linked him to the assault and “that there is 

sufficient evidence upon which a reasonable jury could find that 

the defendant did, in fact, commit the rape.” 

Section 190.3, factor (b) permits the jury to consider the 

“presence or absence of criminal activity by the defendant which 

involved the use or attempted use of force or violence or the 

express or implied threat to use force or violence.” Before the 

evidence is presented to the jury, the trial court must determine 

that the evidence offered would allow a rational trier of fact to 

decide beyond a reasonable doubt that the defendant committed 

the criminal activity alleged under factor (b). (People v. Clair

(1992) 2 Cal.4th 629, 676.) Once presented, whether the 

evidence of other acts is significant enough to be given weight in 
PEOPLE v. JOHNSON

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

55

the penalty determination is for the jury to decide. (People v. 

Smith (2005) 35 Cal.4th 334, 369.) 

We review a trial court’s decision to admit evidence of 

other crimes for abuse of discretion, “ ‘and no abuse of discretion 

will be found where, in fact, the evidence in question was legally 

sufficient.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225.) 

“On appeal, the test of legal sufficiency is whether there is 

substantial evidence, i.e., evidence from which a reasonable 

trier of fact could conclude that the prosecution sustained its 

burden of proof beyond a reasonable doubt. [Citations.] 

Evidence meeting this standard satisfies constitutional due 

process and reliability concerns.” (People v. Boyer (2006) 38 

Cal.4th 412, 479-480.) 

Defendant asserts the evidence was insufficient because 

the gun clip was a movable object. He relies on Mikes v. Borg

(9th Cir. 1991) 947 F.2d 353 (Mikes), a case in which the 

prosecution’s only evidence against the defendant consisted of 

fingerprints found on a disassembled turnstile the victim had 

recently purchased at a going-out-of-business sale. (Id. at 

p. 355.) The federal appellate court stated that “in fingerprintonly cases in which the prosecution’s theory is based on the 

premise that the defendant handled certain objects while 

committing the crime in question, the record must contain 

sufficient evidence from which the trier of fact could reasonably 

infer that the fingerprints were in fact impressed at that time 

and not at some earlier date.” (Id. at pp. 356-357.) The court 

held that the defendant’s conviction could be upheld only if the 

record showed that the object in question was inaccessible to 

him at the “ ‘relevant time,’ ” defined as “the time prior to the 

commission of the crime during which the defendant reasonably 

could have placed his fingerprints on the object in 
PEOPLE v. JOHNSON

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

56

question and during which such prints might have remained on 

that object.” (Id. at p. 357.) Because the turnstile presumably

had been in operation before being sold, the evidence was 

insufficient to preclude the reasonable possibility that the 

defendant placed his fingerprints on the item prior to the 

victim’s acquisition of it. (Id. at pp. 358-359.)

Defendant also relies on People v. Trevino (1985) 39 Cal.3d 

667. In Trevino, the defendant and codefendant were charged 

with the murder and robbery of their friend. (Id. at p. 676.) The 

only evidence linking the codefendant to the scene of the crime 

was a fingerprint found on a dresser drawer. (Id. at p. 678.) The 

fingerprint expert could not determine the date of the print, 

acknowledging that it could have been made months earlier. 

(Ibid.) We held that the fingerprint evidence could not be 

considered substantially incriminating. (Id. at p. 696.) Because 

the expert could not determine the age of the print, there was 

no reason to presume it had been made on the day of the crime 

rather than a previous occasion. (Id. at pp. 696-697.) We noted 

that the “ ‘evidence as to how or when the print came to be 

placed on the dresser is fraught with uncertainty, leaving the 

triers of fact to speculate as to how and when the print was 

made. This kind of guesswork as to the facts does not elevate 

speculation to the level of reasonable inference.’ ” (Id. at p. 697.) 

Mikes and Trevino are easily distinguished from this case. 

In Mikes, the turnstile containing the defendant’s fingerprint 

was “fully accessible to the general public” before the victim 

acquired it, and the defendant could have placed his fingerprint 

on the object during that period. (Mikes, supra, 947 F.2d at pp.

358-359.) Here, by contrast, there was no evidence the 

magazine was accessible to the general public before the crime

against Mary S., making Mikes distinguishable on that basis. 
PEOPLE v. JOHNSON

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

57

Moreover, there was no indication that defendant knew Cavallo 

or had ever been inside Cavallo’s home before he was killed, and 

yet defendant’s fingerprint was found on an object taken from 

inside Cavallo’s home and found at the site where Mary S. was 

assaulted. Additionally, it is clear the gun was loaded when 

Mary S. was attacked because a shot was fired in the bathroom 

during the commission of that crime. It is therefore reasonable 

to conclude that defendant loaded the weapon or checked the 

clip immediately before using it to assault Mary S. 

In Trevino, the codefendant was the victim’s friend and 

presumably had been at the victim’s house on occasions prior to 

the day of the homicide. Because the date of the fingerprint 

could not be determined in that case, no solid evidence linked 

the codefendant to the scene on the day of the murder. Here, as 

noted above, defendant’s fingerprint was found on the magazine 

within a gun that belonged to Cavallo, who did not know 

defendant. Moreover, unlike in Trevino, the prosecution’s 

fingerprint expert testified that the fingerprint powder “leaped 

out” at him, which indicated that the print was fresh when Mary 

S. was assaulted. Therefore, the evidence of defendant’s 

fingerprint on the magazine of the gun used to attack Mary S. 

was sufficient to establish identity.

For the reasons stated above, the evidence was sufficient 

for a rational trier of fact to determine beyond a reasonable 

doubt that defendant committed the attack on Mary S. The trial 

court, therefore, did not abuse its discretion in admitting 

evidence of the rape and assault against Mary S. Because the 

trial court did not err, defendant’s rights to due process, a fair 

trial, and a reliable penalty verdict under the United States 

Constitution were not violated. 
PEOPLE v. JOHNSON

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

58

E. Admission of Hearsay Statements

Defendant contends the trial court erroneously admitted 

hearsay statements from Cavallo’s friend, Richard Canniff, who 

testified that Cavallo kept a gun at home. Defendant asserts

the statements were inadmissible as evidence of habit.8

Canniff died before the second penalty phase retrial. 

Defendant filed a written motion in limine to exclude Canniff’s 

prior testimony as inadmissible hearsay. Defendant did not 

challenge Canniff’s unavailability. Rather, defendant was 

specifically concerned with Canniff’s testimony that Cavallo 

kept a small gun near him in his house; Canniff admitted he 

never personally saw a gun at Cavallo’s residence. The 

prosecution argued the evidence was admissible as evidence of 

habit because Cavallo customarily kept a gun near his bed for 

protection. He also argued that Canniff’s statements tended to 

show Cavallo was asleep when he was killed, because Cavallo 

did not have time to reach for the gun. 

The court admitted Canniff’s testimony over defendant’s 

objection. The prosecution read Canniff’s testimony from the 

guilt phase, during which Canniff said that Cavallo kept a small 

gun for protection. Canniff explained, “ ‘It had to be close to his 

bed. . . . He was never — he said repeatedly to me and others 

that he was never going to be caught off guard by anyone.’ ” He 

 

8 The Attorney General argues that defendant forfeited his 

challenge to the admission of Canniff’s hearsay statements by 

not objecting directly before the testimony was read. However, 

defendant filed a motion to exclude Canniff’s testimony before 

trial. The Attorney General also alleges the evidence was 

admissible as nonhearsay under Evidence Code section 1250 to 

show that Cavallo was asleep when he was killed, but cites no 

authority to support this claim. 
PEOPLE v. JOHNSON

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

59

said that Cavallo “ ‘frequently’ ” mentioned keeping a gun for 

protection.

Evidence Code section 1105 provides: “Any otherwise 

admissible evidence of habit or custom is admissible to prove 

conduct on a specified occasion in conformity with the habit or 

custom.” “ ‘ “Habit” means a person’s regular or consistent 

response to a repeated situation. “Custom” means the routine 

practice or behavior on the part of a group or organization that 

is equivalent to the habit of an individual.’ ” (People v. Memro

(1985) 38 Cal.3d 658, 681, fn. 22.) Because evidence of habit or 

custom must be “otherwise admissible,” any hearsay evidence of 

habit must fall within an exception to be admissible. (See Evid. 

Code, § 1200 [hearsay evidence is inadmissible except as 

provided by law].) The determination whether habit evidence is 

admissible rests in the sound discretion of the trial court. 

(People v. Hughes (2002) 27 Cal.4th 287, 337.) The erroneous 

admission of hearsay is reviewed under the reasonable 

possibility standard. (People v. Brown (1988) 46 Cal.3d 432, 

447-448 (Brown); see People v. Page (2008) 44 Cal.4th 1, 54.)

Defendant asserts the evidence was inadmissible hearsay 

and the trial court erred in admitting Canniff’s testimony as 

evidence of habit. He also asserts that the testimony was 

insufficient to show habit because it failed to establish a regular 

or consistent response to a repeated situation. Even assuming

the trial court erred in admitting the statements, however, there 

is no reasonable possibility that a result more favorable to 

defendant would have been reached in the absence of the 

asserted error. (Brown, supra, 46 Cal.3d at p. 448.) The court 

admitted the testimony of two other witnesses from prior trials 

concerning Cavallo’s ownership of a .22-caliber handgun, and 

Cavallo’s ex-wife testified that he owned such a handgun. 
PEOPLE v. JOHNSON

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

60

Additionally, testimony from the officer who found Cavallo’s 

body supported an inference that Cavallo had been asleep 

during the attack. Thus, any error in admitting Canniff’s 

testimony was harmless.

F. Evidence of Failure to Apologize to Prior Victim

Defendant contends the trial court abused its discretion 

when it admitted evidence that defendant did not apologize to 

Florence M. or ask her about the fate of her child after his 

conviction for stabbing her. He asserts her statement regarding 

his lack of apology was irrelevant to proving a factor in 

aggravation.

Florence M. testified about the 1971 stabbing 

incident. She explained that after her testimony in the first 

trial, she and her husband, defendant’s half-brother, visited 

defendant at a state psychiatric hospital. Over defendant’s 

objection, the prosecutor asked Florence M., “Did he apologize 

to you in any way for what he done [sic] to you?” She replied, 

“No, no way at all.” The prosecutor asked, “Did he ask you 

anything about the baby?” Florence M. answered, “No, he didn’t 

say anything about that.” 

A lack of remorse is not enumerated as an aggravating 

factor under section 190.3. A prosecutor, therefore, should not 

argue that the absence of remorse is a factor in aggravation. 

(People v. Keenan (1988) 46 Cal.3d 478, 510; see also People v. 

Rivera (2019) 7 Cal.5th 306, 343 (Rivera) [postcrime evidence of 

remorselessness does not fit within any statutory sentencing 

factor and should not be urged as aggravating].) 

Assuming without deciding that the court erred in 

admitting Florence M.’s statement that defendant did not 

apologize or ask about her baby, however, we see no reasonable 
PEOPLE v. JOHNSON

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

61

possibility that the error affected the jury’s death verdict. 

(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); 

Rivera, supra, 7 Cal.5th at pp. 343-344; People v. Nelson (2011) 

51 Cal.4th 198, 218, fn. 15.) The prosecution presented other 

aggravating evidence in support of a death verdict, including the 

circumstances of the crimes against Cavallo, defendant’s prior 

felony convictions, and his prior instances of violent criminal 

conduct, including the rape and assault of Mary S. Nothing 

suggests that Florence M.’s testimony regarding defendant’s 

lack of remorse “tipped the scales in favor of death.” (Rivera, at 

p. 344.) We therefore conclude any error in admitting the 

testimony was harmless beyond a reasonable doubt.

G. Admission of Aggravating Evidence Without 

Notice

Defendant contends the trial court abused its discretion 

when it admitted evidence in aggravation with assertedly

inadequate notice.

Nine days after the attack on Florence M., CHP Officer 

Lance Erickson stopped defendant for committing a traffic 

violation. As noted earlier, Erickson arrested defendant for 

grand theft of an automobile. When detained, defendant told 

Erickson that he thought he had killed his pregnant sister-inlaw by stabbing her “from the neck down to her stomach.”

Before the first penalty phase retrial, the prosecution filed 

a list of possible witnesses, which included Erickson. Because 

Erickson’s original police report had been destroyed a few years 

after the grand theft case closed, the parties used a report about 

that case prepared for the Los Angeles Police Department

(LAPD) by another officer. 
PEOPLE v. JOHNSON

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

62

The prosecutor met with Erickson the night before he was 

scheduled to testify in the second penalty phase 

retrial. Erickson informed the prosecutor about additional facts 

not in the LAPD report, including that defendant ran from and 

struggled with the officers, made statements to the effect that 

he would shoot them if he had a gun, and admitted that he had 

stabbed, raped, and killed his pregnant sister-in-law during an 

argument because she “was coming on to him.”

The prosecutor acknowledged to the court that the 

additional information was new to him and to the defense. He 

then sought to introduce the statements defendant had made 

about Florence M. and her making sexual advances toward him, 

arguing that they were indicative of a guilty mind and were 

clearly “false statements” about the attack. Defendant opposed 

admission of the statements, arguing that they lacked adequate 

notice and the prejudicial effect of the evidence outweighed the 

probative value under Evidence Code section 352.

Following an evidentiary hearing outside the presence of 

the jury to hear Erickson’s testimony, the court admitted 

defendant’s statements concerning why he stabbed Florence M. 

The court reasoned that the inclusion of Erickson’s name on the 

witness list for the first penalty retrial and the admitted LAPD 

report provided the defense with adequate notice to contact 

Erickson and interview him well before the second penalty 

retrial. The court also observed that the LAPD report “indicates 

that there was some statement made to the Highway Patrol 

about the Florence [M.] incident. Either side could have 

explored that and been ready for it. It just turns out that neither 

side did look into it in detail.” The court denied defendant’s

motion to exclude the statements and his request for a 

substantial delay in proceedings to investigate the matter.
PEOPLE v. JOHNSON

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

63

The court also concluded that “the information [Erickson] 

offers is very relevant to the state of mind of the defendant 

concerning this incident and his attitude toward this incident, 

how he feels about the violence he visited upon his sister-in-law. 

It all goes to character and the quality of the criminal conduct 

involved. So, in that sense, I consider it very probative, and, of 

course, in a sense it’s prejudicial, but in a penalty trial . . . [the]

issue of the prejudicial nature of the evidence . . . doesn’t have 

the same application as it does in a guilt trial.”

Section 190.3 requires the prosecution to provide the 

defendant with notice of the evidence to be introduced within a 

reasonable period of time prior to trial. “Nothing in the 

language of section 190.3, however, suggests that it was 

intended to grant the defendant any greater rights with respect 

to penalty phase evidence, or that evidence of which the 

prosecution had no knowledge when the original notice is given 

must be excluded. Such a construction would be inconsistent 

with the purpose of section 190.3 that the jury be made aware of 

all of the factors bearing on the penalty decision.” (People v. 

Jennings (1988) 46 Cal.3d 963, 987.) If the prosecution

discovers new evidence that it wishes to present after the initial 

notice, it must promptly notify the defendant. (Ibid.) If 

necessary, the defendant is entitled to a reasonable continuance 

to allow time to prepare. (Ibid.) 

We find no error in admitting the evidence. Defendant

knew Erickson was on the witness list for the first penalty phase 

retrial and had more than a year to contact him if defendant

wished to inquire about the circumstances surrounding his 

arrest. Further, the LAPD report stated that defendant said he

stabbed and killed Florence M. Although the report did not 

include the information regarding why defendant stabbed 
PEOPLE v. JOHNSON

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

64

Florence M. — that they argued because she allegedly made 

sexual advances toward him — the report provided the defense 

with sufficient notice that defendant may have said something 

about the assault against Florence M. The first penalty retrial 

witness list and LAPD report provided to defendant gave him 

sufficient time to prepare a defense to the aggravating evidence. 

(See People v. Howard (2008) 42 Cal.4th 1000, 1016.) The 

prosecutor also promptly notified the defense of the new 

information the morning after he spoke with Erickson. 

Moreover, the trial court did not abuse its discretion when 

it found the evidence was more probative than prejudicial. 

“Prejudicial” means evidence “ ‘that uniquely tends to evoke an 

emotional bias against a party as an individual, while having 

only slight probative value with regard to the issues.’ ” (People 

v. Thomas (2012) 53 Cal.4th 771, 807 (Thomas).) “A trial court’s 

exercise of discretion under [Evidence Code] section 352 will be 

upheld on appeal unless the court abused its discretion, that is, 

unless it exercised its discretion in an arbitrary, capricious, or 

patently absurd manner.” (Id. at p. 806; see Evid. Code, § 352.) 

Defendant cannot establish that the trial court did so here. 

Defendant’s statements had probative value by showing that he 

attempted to shift blame to the victim, did not feel empathy for 

the victim, and did not take responsibility for his actions.

H. Evidence of Offense Committed After Capital 

Offense

Defendant contends the trial court erred when it 

instructed the jury that it could consider as an aggravating 

factor defendant’s conviction for assault with a deadly weapon 

on Verna O., because he was convicted of this crime after the 

capital offense. Therefore, he asserts, it was not a prior 

conviction within the meaning of section 190.3, factor (c).
PEOPLE v. JOHNSON

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

65

Defendant attacked Verna O. on December 2, 1978, prior 

to the murder of Cavallo. He was convicted of the charge 

relating to the offense against Verna O., however, shortly after 

he committed the capital offense. The court determined that a 

“prior felony conviction” under section 190.3, factor (c), was 

admissible if the conviction occurred after the capital offense but 

before trial. Over defendant’s objection, the trial court

instructed the jury that it could consider the attack on Verna O.

as an aggravating factor under section 190.3, factor (c).

The Attorney General concedes that defendant’s

conviction for the assault on Verna O. was inadmissible as a 

prior felony conviction under section 190.3, factor (c). (See 

People v. Balderas (1985) 41 Cal.3d 144, 201 (Balderas) [“prior 

felony convictions” are limited to those entered before 

commission of the capital crime].) However, we conclude the

error is harmless because there is no reasonable possibility that 

defendant would have received a more favorable result absent

the error. (See Brown, supra, 46 Cal.3d at p. 448-449; People v. 

Lewis (2008) 43 Cal.4th 415, 527 [“ ‘reasonable possibility it 

affected the verdict’ ” standard is essentially the same as beyond 

a reasonable doubt standard in Chapman, supra, 386 U.S. at p.

24].) The weight of the other aggravating evidence was 

substantial. The prosecution introduced evidence of the 

circumstances of defendant’s robbery and murder of Cavallo, his

assault and rape of Mary S., and his threat to dissuade Florence 

M. from testifying. The prosecution also introduced evidence 

that defendant had been convicted of three other violent 

felonies. The properly introduced aggravating evidence 

substantially outweighed the mitigating evidence. Further, the 

prosecutor only briefly discussed the Verna O. assault during 

his closing argument. It is not reasonably possible that the 
PEOPLE v. JOHNSON

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

66

exclusion of this conviction would have altered the jury’s 

balancing of evidence in this case. 

Moreover, the evidence would have been properly 

admissible under factor (b) as the presence of criminal activity 

by defendant that involved the use of force or violence. We have 

previously acknowledged that factors (b) and (c) serve distinct 

purposes — factor (b) admits evidence of violent criminality to 

show a defendant’s propensity for violence, while factor (c) 

admits evidence of any prior felony conviction to show that the 

capital offense was the culmination of habitual 

criminality. (Balderas, supra, 41 Cal.3d at p. 202.) We have 

also held that when a prior conviction is erroneously admitted 

under factor (c) but properly admitted under factor (b), a 

defendant cannot establish prejudice because the additional fact 

of a conviction “ ‘could have added very little to the total picture 

considered by the jury.’ ” (People v. Hayes (1990) 52 Cal.3d 577, 

637-638.)

Defendant asserts this case is different because the jury 

was instructed to consider only those factor (b) criminal acts 

listed in the corresponding instruction; the Verna O. assault was 

not listed. Therefore, he contends, but for the erroneous factor 

(c) instruction, the jury would not have considered the Verna O.

assault at all. Although the jury was not instructed to consider 

evidence of the Verna O. assault under factor (b), we are not 

persuaded that the instructional error undermined the verdict. 

The prosecution did not overlap offenses between the factor (b) 

and factor (c) instructions; all four of the offenses listed under 

factor (c) could have been included in the factor (b) instruction,

but were not. It is reasonable to assume that had the court 

denied the prosecution’s request to include the Verna O. attack 

under factor (c), the prosecution would have then simply 
PEOPLE v. JOHNSON

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

67

requested it be enumerated in the factor (b) instruction provided 

to the jury. Further, to the extent the factor (b) instruction 

omitted an offense that should have been included, defendant 

did not object to the modified instruction in the trial court. “It 

is incumbent on defense counsel to point out an omitted incident 

and request a more complete instruction on the subject.” (People 

v. Bacon (2010) 50 Cal.4th 1082, 1122.)

For the reasons stated, we discern no prejudice under the 

facts.

I. Loss of Defense Exhibit

Defendant contends the trial court’s loss of an exhibit 

deprived him of due process and a fair penalty trial. He further 

asserts the court abused its discretion when it denied his motion 

for a new trial based on the omission.

Kenneth Peterson testified for the defense. Peterson was 

the chief social worker for a youth home where defendant

resided in the 1960s. Peterson explained that children referred 

by juvenile court would be evaluated at the youth home, and 

those diagnosed as mentally ill would be transferred to a state 

hospital. Because the state hospitals had many long-term

patients, children at the youth home faced a delay in being 

transferred. On April 14, 1965, Peterson sent a letter to the 

chief social worker at one of the state hospitals, explaining that

the youth home had arranged for defendant to be committed to 

the state hospital the previous summer, but he had not yet been 

placed there eight months later. Peterson testified that the 

youth home did not have facilities for treating mentally ill 

children. During cross-examination, the prosecution had 

Peterson read aloud the parts of the letter describing 

defendant’s symptoms and struggles at the youth home. 
PEOPLE v. JOHNSON

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

68

Peterson acknowledged that he had never personally worked 

with defendant; rather, he relied on reports from other people 

when writing the letter. The letter was admitted into evidence

as Exhibit N.

Richard Komisaruk, a psychiatrist who worked with the 

youth home, also testified for the defense. He affirmed 

Peterson’s testimony that the wait list for children to enter a 

state hospital for mental health treatment was very long. He 

testified that in the early 1960s Caucasian children were 

accepted into state hospitals “at a much higher frequency” 

compared with ethnic minorities. Komisaruk explained that 

when children were finally admitted into the state hospital, the 

hospital would often rediagnose children and claim they needed 

to be in reform school, not a hospital. Komisaruk conducted a 

study that revealed “there was a greatly disproportionate[] 

representation of Black people in this group of rediagnosed 

individuals who were sent back from the State hospital and were 

relegated to treatment within the criminal justice system.” 

The prosecution showed Komisaruk Exhibit N. The 

prosecution also showed Komisaruk a report, dated July 1965, 

from the state hospital that eventually admitted defendant. 

Komisaruk read from the report: “We arranged with Doctor 

Komisaruk to admit this child and discharge him. It was also 

agreed upon that should the youngster become involved with the 

law once more, that Doctor Komisaruk in the Juvenile Court 

would commit him to Boys Training School.” Although 

Komisaruk did not recall ever interacting with defendant prior 

to testifying, he explained that in similar situations, a patient 

who “look[ed] like a psychopath” or “a sociopath” and who it was 

believed would not benefit from treatment would be discharged 

from the hospital and sent to the Boys Training School.
PEOPLE v. JOHNSON

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

69

The defense realized shortly after Komisaruk testified 

that he accidentally took two exhibits with him, including

Exhibit N. Komisaruk died soon after returning to his home 

state, and the exhibit was never returned. Neither the court nor 

the parties realized that Exhibit N had not been retained by the 

court and given to the jury until after the verdict was received. 

Defendant filed a motion for a new trial arguing, in part, that 

the missing exhibit “was a substantial piece of evidence in 

mitigation” that would have garnered sympathy for defendant. 

The court denied the motion, finding that the fact that the

exhibit was missing was not prejudicial. The court 

acknowledged that the jury did not have the “opportunity to 

study, weigh, or deliberate upon the importance of this single 

document.” The court concluded, however, that “the substance 

and information and significance of that letter and significance

of that information was communicated to the jurors” through 

testimony by Peterson and Komisaruk, and a substantial 

portion of the letter was read into the record. Additionally, the 

court noted, the jury did not request the letter or otherwise note 

its absence.

We will not disturb a trial court’s denial of a motion for a 

new trial unless “a ‘manifest and unmistakable abuse of 

discretion’ ” clearly appears. (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 127.) We find no abuse of discretion. The 

trial court carefully weighed defendant’s argument and whether 

the failure to transfer Exhibit N to the jury could have affected 

the outcome of the trial. We also note that significant portions 

of the letter were read aloud to the jury, and its contents were 

discussed by two witnesses. Defendant has not explained how 

the document itself would hold any evidentiary value beyond its 

content. 
PEOPLE v. JOHNSON

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

70

Further, defense counsel did not rely on the contents of the 

letter during closing argument. Rather, he emphasized the 

importance of Komisaruk’s testimony, asserting that AfricanAmerican children were seen as “sociopaths” who “were 

warehoused” in the youth home instead of receiving treatment. 

He also reminded the jury that defendant had been committed 

to a state hospital several times for being mentally incompetent 

and the juvenile court system failed to provide him with the 

mental health assistance that he needed. The record supports 

a finding that the actual presence of the letter during 

deliberations would have yielded no significant difference. 

For these reasons, the absence of Exhibit N did not deprive 

defendant of due process and a fair penalty trial. There is no 

reasonable possibility that defendant would have received a 

more favorable result absent the error. (See Chapman, supra, 

386 U.S. at p. 24; Brown, supra, 46 Cal.3d at pp. 448-449.)

J. Cumulative Error

Defendant contends reversal is warranted because of the 

cumulatively prejudicial effect of penalty phase errors. We have 

found four possible errors: admission of Florence M.’s testimony 

regarding defendant’s remorselessness, admission of Canniff’s 

hearsay testimony, the erroneous instruction on consideration 

of the Verna O. conviction, and the failure to transfer Exhibit N

to the jury. None of these errors was prejudicial. We conclude 

that no error in the penalty phase, whether considered alone or 

together, merits reversal. (See People v. Souza (2012) 54 

Cal.4th 90, 139, 141 [a few nonprejudicial instructional errors 

do not warrant reversal on cumulative error claim].)
PEOPLE v. JOHNSON

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

71

III. OTHER ISSUES

A. Denial of Application to Modify Verdict

Defendant contends the trial court abused its discretion 

when it denied his application to modify the death verdict under 

section 190.4, subdivision (e). He first contends the trial court 

improperly considered the underlying facts of the assaults on 

Florence M. and Verna O. He acknowledges this evidence was 

admitted during the penalty phase but claims the trial court 

could not rely on this evidence because the jury was not 

instructed to consider them as aggravating factors under section 

190.3, factor (b). He asserts the court was free to consider his 

convictions in connection with the two incidents under section 

190.3, factor (c), but could not properly consider the details of 

the acts that led to the convictions.

Defendant also contends the court erroneously relied on 

facts unavailable to the jury. The Attorney General concedes 

that the court improperly considered two pieces of evidence that 

it excluded from the jury’s consideration under Evidence Code 

section 352: previously excluded evidence that defendant had 

raped Florence M. while attacking her, and a letter defendant 

wrote to the trial judge in the Verna O. case, requesting release 

on bail and asserting his innocence. 

When ruling on an application to modify the death verdict, 

the trial court “shall review the evidence, consider, take into 

account, and be guided by the aggravating and mitigating 

circumstances referred to in Section 190.3, and shall make a 

determination as to whether the jury’s findings and verdicts 

that the aggravating circumstances outweigh the mitigating 

circumstances are contrary to law or the evidence presented.” 

(§ 190.4, subd. (e).) “In ruling on the application to modify, the 
PEOPLE v. JOHNSON

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

72

trial court does not make an independent penalty 

determination, but instead reweighs the evidence 

of aggravating and mitigating circumstances and then 

determines whether the weight of the evidence supports the jury 

verdict.” (People v. Wallace (2008) 44 Cal.4th 1032, 1096.) We 

independently review the trial court’s ruling in light of the 

record. (Ibid.) 

We conclude that the trial court properly denied 

defendant’s motion to modify the death verdict. Concerning

defendant’s first contention, although the trial court erroneously 

instructed the jury concerning the Verna O. attack under section 

190, factor (c), as noted above, the facts underlying the assault 

were nonetheless properly admissible under section 190, factor 

(b). Because the underlying facts of the assaults on Florence M. 

and Verna O. were properly admitted, the jury would have 

considered this evidence in making its penalty determination 

and the court properly considered the details of the assaults 

when reweighing the evidence under section 190.4, subdivision 

(e). 

Regarding defendant’s second contention, as the Attorney 

General concedes, the trial court erred when it considered the 

rape of Florence M. and the letter defendant wrote requesting 

bail. (See People v. Visciotti (1992) 2 Cal.4th 1, 78 [the court is 

limited to consideration of the evidence that was before the 

penalty jury].) This error, however, does not require reversal. 

The court acknowledged the presence of mitigating factors, but 

found that “the significance of that mitigation becomes 

attenuated or lessens as one has opportunities to grow and to 

develop some maturity and to learn from experience.” The court 

described the “rather gross and truly disturbing aggravating 

factors in [defendant’s] history” and noted that “the continuity 
PEOPLE v. JOHNSON

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

73

of that violence over a period of time is so extreme.” Given the 

court’s finding that a history of extreme violence “substantially 

outweigh[ed]” the presence of mitigating factors, there is no 

reasonable possibility that it would have modified the death 

verdict absent consideration of the excluded evidence.

B. Challenges to the Death Penalty Law

Defendant presents several challenges to California’s 

death penalty law that our prior decisions have considered and 

rejected. He provides no persuasive reason for us to reexamine 

the following conclusions:

“Allowing the jury to consider the circumstances of the 

crime (§ 190.3, factor (a)) does not lead to the imposition of the 

death penalty in an arbitrary or capricious manner.” (People v. 

Kennedy (2005) 36 Cal.4th 595, 641.)

The death penalty statute “is not invalid for failing to 

require (1) written findings or unanimity as to aggravating 

factors, (2) proof of all aggravating factors beyond a reasonable 

doubt, (3) findings that aggravation outweighs mitigation 

beyond a reasonable doubt, or (4) findings that death is the 

appropriate penalty beyond a reasonable doubt.” (People v. 

Snow (2003) 30 Cal.4th 43, 126 (Snow).) These conclusions are 

not altered by the United States Supreme Court’s decisions 

in Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v. 

Arizona (2002) 536 U.S. 584. (People v. Simon (2016) 1 Cal.5th 

98, 149.) Likewise, the high court’s decision in Hurst v. Florida

(2016) 577 U.S. ___ [136 S.Ct. 616], which invalidated Florida’s

capital sentencing scheme, does not invalidate California’s law

because our sentencing scheme is “ ‘materially different from 

that in Florida.’ ” (People v. Becerrada (2016) 2 Cal.5th 1009, 

1038; People v. Rangel (2016) 62 Cal.4th 1192, 1235, fn. 16.)
PEOPLE v. JOHNSON

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

74

The use of the term “so substantial” in CALJIC No. 8.88 

does not render the instruction impermissibly broad. (People v. 

Breaux (1991) 1 Cal.4th 281, 316, fn. 14.)

If the trial court instructs the jury that it can impose the 

death penalty only if it finds that aggravation outweighs 

mitigation, it need not also instruct the jury on the converse —

that it must return a sentence of life without the possibility of 

parole if it finds that mitigation outweighs aggravation. (People 

v. Duncan (1991) 53 Cal.3d 955, 978.)

Instructions on the meaning of a sentence of life 

imprisonment without the possibility of parole and on the 

“ ‘presumption of life’ ” are not constitutionally 

required. (People v. Demetrulias (2006) 39 Cal.4th 1, 43.)

CALJIC No. 8.88 adequately instructs the jury to 

determine whether the balance of aggravation and mitigation 

makes death the appropriate penalty. (People v. Arias (1996) 

13 Cal.4th 92, 171.)

“Comparative intercase proportionality review by the trial 

or appellate courts is not constitutionally required.” (Snow, 

supra, 30 Cal.4th at p. 126.)

California’s death penalty does not violate international 

law or international norms of decency. (Thomas, supra, 

53 Cal.4th at p. 837.)
PEOPLE v. JOHNSON

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

75

IV. CONCLUSION

The judgment is affirmed.

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.
1

PEOPLE v. JOHNSON

S029551

Dissenting Opinion by Justice Liu

This is yet another case in which a black man was 

sentenced to death for killing a white victim after a jury 

selection process in which the prosecution disproportionately 

excused black prospective jurors. And this is yet another case 

in which this court has refused to find any inference of 

discrimination in jury selection, despite a well-founded 

suspicion that the prosecutor here, in evaluating prospective 

jurors, targeted only black jurors for criminal background 

checks.

As the high court said in Batson v. Kentucky (1986) 476 

U.S. 79 (Batson), “[s]election procedures that purposefully 

exclude black persons from juries undermine public confidence 

in the fairness of our system of justice.” (Id. at p. 87.) Yet it has 

been more than 30 years since this court has found Batson error 

involving the removal of a black juror. “Racial discrimination 

against black jurors has not disappeared here or elsewhere 

during that time” (People v. Hardy (2018) 5 Cal.5th 56, 124 (dis. 

opn. of Liu, J.) (Hardy) [citing cases]), and if the facts in this 

case do not give rise to an inference of discrimination, then I am 

not sure what does. Because the totality of circumstances here 

readily establishes a prima facie case of discrimination, I 

respectfully dissent.
PEOPLE v. JOHNSON

Liu, J., dissenting

2

I.

The Batson issue here arose during jury selection for 

Johnson’s second penalty retrial in 1992 in Sacramento County, 

a community that was 75.1% white and 9.3% black at the time. 

(Bureau of the Census, U.S. Dept. of Commerce, 1990 Census of 

Population, General Population Characteristics: California 

(1992) p. 245.) Johnson, a black man, had been convicted of 

murdering a white man, Aldo Cavallo, and the prosecutor 

planned to introduce, and did introduce, evidence that Johnson 

had assaulted and raped a white woman, Mary S., as an 

aggravating factor in support of a death sentence. It must be 

acknowledged at the outset that “the social, racial and sexual 

overtones [of the case] were precisely the kind which could ‘most 

effectively prejudice’ defendant.” (People v. Williams (1989) 48 

Cal.3d 1112, 1129.)

The fact that the contested strikes were directed at black 

jurors in a case involving a black defendant is also relevant. 

Just this year, the high court underscored that one of “the most 

critical” aspects of the Batson opinion was its express 

prohibition on “ ‘strik[ing] black veniremen on the assumption 

that they will be biased in a particular case simply because the 

defendant is black.’ ” (Flowers v. Mississippi (2019) 588 U.S. __, 

__ [139 S.Ct. 2228, 2241] (Flowers), quoting Batson, supra, 476 

U.S. at p. 97; see Powers v. Ohio (1991) 499 U.S. 400, 416 

(Powers) [“Racial identity between the defendant and the 

excused person might in some cases be the explanation for the 

prosecution’s adoption of the forbidden stereotype, and if the 

alleged race bias takes this form, it may provide one of the easier 

cases to establish both a prima facie case and a conclusive 

showing that wrongful discrimination has occurred.”].)
PEOPLE v. JOHNSON

Liu, J., dissenting

3

At the time of the Batson ruling now before us, the 

prosecutor had used 15 peremptory strikes to remove three of 

the five black jurors (60 percent) and 12 of the 35 nonblack 

jurors (34 percent) in the jury box. Beyond the fact of this 

disproportion, all three black jurors who were struck — Lois G., 

Sharon H., and Shanna H. — were qualified to serve as jurors 

in this penalty trial. All three expressed a willingness to impose 

the death penalty; all three indicated they would make a penalty 

judgment based on the facts and evidence; and none said 

anything on the juror questionnaire or during voir dire that 

would have raised an obvious concern for the prosecution.

Lois G. was a 59-year-old homeowner with two grown 

children. She served as the vice president of a middle school and 

was pursuing a doctorate degree in education. During voir dire, 

she explained that she handled almost all the disciplinary issues 

at the school, which put her in close contact with the police. On 

her questionnaire, she indicated that she was “close friends” 

with police officers. Lois G. also noted that she had been the 

victim of a burglary and a car theft. As to whether she would 

automatically vote either for death or for life without parole, she 

wrote, “I have no biases regarding the penalties mentioned —

would listen and try to be fair in my assessment.” She also wrote 

that she viewed the death penalty as “the law and the system 

we are using” and would decide whether it should be imposed 

“based on evidence in [the] case.” When asked if she had 

religious objections to the death penalty, she wrote “no.” During 

voir dire, she said her views on the death penalty were the same 

as what she wrote on the questionnaire, and she again expressed 

her willingness to impose the death penalty. Today’s opinion 

acknowledges that there was no obvious reason for excusing 

Lois G. (Maj. opn., ante, at p. 48, fn. 7.)
PEOPLE v. JOHNSON

Liu, J., dissenting

4

Sharon H. was 39 years old, had never been married, and 

had no children. She worked in telecommunications at Pacific 

Bell and was also the executive director of a nonprofit 

organization she had founded. She said she works with abused 

children at the nonprofit and has a “heart” for “what we call 

throw-away kids.” When read in context, Sharon H.’s statement 

did not make her a “clearly . . . undesirable juror from the 

prosecution point of view.” (Maj. opn., ante, at p. 48, fn. 7.) 

During voir dire, she drew a clear distinction between “kids that 

are abused” and “the real difficult kids” who “have a lot of 

criminality in their background.” She said her organization 

refuses to serve the second category of children, who can be 

“detrimental” to the organization’s other clients and “to the 

whole neighborhood.” Given Johnson’s extensive juvenile 

criminal record, it is not obvious that Sharon H. would have 

sympathized with the mitigation evidence about his childhood.

In addition, Sharon H. indicated on her questionnaire that 

her sister had been the victim of a burglary. When asked 

whether she had any “extraordinary security precautions at 

[her] home,” she wrote that she had burglar alarms. Sharon H. 

said she would not automatically vote for death or for life 

without parole. She indicated clearly that she was willing to 

impose the death penalty and said, “My general feeling is that 

some crimes warrant it — some don’t.” When asked if she had 

religious objections to the death penalty, she wrote “No.” During 

voir dire, Sharon H. said her views on the death penalty were 

the same as what she wrote on the questionnaire. She explained 

that she does not make any decision automatically, has “been 

known to ask a lot of questions,” and always tries to consider 

“[e]verything.”
PEOPLE v. JOHNSON

Liu, J., dissenting

5

Shanna H. was a 40-year-old homeowner with three 

children in high school. She had been a state tax auditor for 19 

years. On her questionnaire, she noted that she had twice been 

the victim of burglary. She had “extraordinary security 

precautions at [her] home,” including security bars and lights, 

because “[she didn’t] want anyone taking what belongs to [her].” 

As to her death penalty views, Shanna H. wrote that “the death 

penalty [should be] used in cases where another life was taken 

or any crimes committed against children & senior citizens.” 

She indicated she would not automatically vote either for death 

or for life without parole. When asked if she had religious 

objections to the death penalty, she wrote “none.” During voir 

dire, she reiterated that she would not automatically vote for or 

against the death penalty. She clarified that she believed the 

death penalty should be considered as a possibility when a life 

is taken, not that it should be imposed any time a life is taken. 

She also said that nothing in her religious beliefs dictated how 

she should feel about the death penalty.

When asked whether a member of her family had been 

arrested for a crime, Shanna H. wrote that her son had been 

arrested twice, including once for rape. But the significance of 

those incidents is not as clear as the court suggests. (Maj. opn., 

ante, at p. 47, fn. 7.) During voir dire, Shanna H. explained that 

her main concern with her son’s criminal proceedings was the 

plea-bargaining process. She said she “thought everybody was 

suppose[d] to be tried by the jurors.” Plea bargaining was not at 

issue in this case; Johnson was convicted in a jury trial. 

Furthermore, Shanna H. emphasized that her son’s experiences 

would not affect her impartiality as a juror in this case. She said 

that “[t]hose are two separate issues” and that she knew “how 

to draw the line.” She explained that as a tax auditor she 
PEOPLE v. JOHNSON

Liu, J., dissenting

6

“learned every case stands on its own merit. You deal with the 

facts.”

It is evident that these three black women had diverse 

backgrounds, occupations, and family circumstances. None of 

them expressed views clearly suggesting partiality to the 

defense; in fact, all of them had characteristics that might be 

considered favorable to the prosecution. Lois G. and Shanna H. 

had been victims of burglary, and Sharon H.’s sister had been a 

victim of burglary; Johnson had been convicted of committing 

murder during a burglary. (See People v. Turner (1986) 42 

Cal.3d 711, 719.) All three jurors clearly expressed their 

willingness to impose the death penalty; none indicated a 

religious objection. And all three jurors consistently said they 

would not automatically vote for or against the death penalty 

and would instead make a decision based on the facts and 

evidence — exactly as we would expect a conscientious juror to 

do.

The removal of these three jurors occurred against the 

backdrop of the prosecutor’s revelation one day earlier that he 

had run a criminal background check on a black juror, Kenneth 

M. The background check showed that Kenneth M. had been 

convicted twice of driving under the influence and arrested once 

for domestic violence, a record at odds with the assertion on his 

juror questionnaire that he had never been accused of or 

arrested for a crime. The prosecutor asked the trial court to 

investigate Kenneth M. for misconduct and suggested that he 

should be removed from the venire. (Kenneth M. was not 

removed for cause and was eventually struck by the prosecution 

during the selection of alternate jurors.)
PEOPLE v. JOHNSON

Liu, J., dissenting

7

In the trial court, there was no dispute that Kenneth M. 

had provided inaccurate information on his questionnaire. 

Instead, defense counsel wondered why the prosecutor, before 

any individual voir dire of Kenneth M., had chosen Kenneth M. 

for a criminal background check. Today’s opinion says defense 

counsel’s concern was that “the prosecutor appeared to conduct 

a criminal background check on only Kenneth M.” (Maj. opn., 

ante, at p. 44.) But what defense counsel actually said was: 

“[Kenneth M.] is a Black or indicates on his form that he is 

Black, and I am wondering if Mr. Mullins [the prosecutor] just 

checked all the Black prospective jurors with respect to any 

criminal record.” (Italics added.)

At this point, the prosecutor replied, “I don’t think I am 

obliged to answer that inquiry,” and went on to explain that he 

did not conduct criminal background checks on all prospective 

jurors. He said his approach was “to check certain jurors when 

they spark my interest” or “if I find something on the 

questionnaire that sparks my interest.” Defense counsel asked 

to “have the information as to all the jurors that Mr. Mullins 

ran.” When the prosecutor refused, defense counsel made clear: 

“I think a Wheeler Motion is always something that could occur 

in any case of this nature, and I think we should always be 

aware of what’s going on and what’s happening with respect to 

any potential Wheeler Motion that may be made, and I don’t see 

why Mr. Mullins would object to informing us as to which jurors 

he ran a check on so that we have the same information with 

respect to those jurors.” (See People v. Wheeler (1978) 22 Cal.3d 

258 [California’s forerunner to Batson].) The prosecutor again 

refused, claiming there was no prima facie case for any Wheeler

motion.
PEOPLE v. JOHNSON

Liu, J., dissenting

8

The prosecutor’s vague and evasive statements are cause 

for suspicion. While stating that he ran background checks on 

jurors who “spark my interest,” the prosecutor never pointed to 

anything about Kenneth M.’s questionnaire that sparked his 

interest or might have suggested Kenneth M.’s criminal history 

warranted further investigation. And because individual voir 

dire of Kenneth M. had not yet occurred, there is no suggestion 

that something about Kenneth M.’s appearance or demeanor 

sparked the prosecutor’s interest. Further, when directly asked 

whether he had targeted all black jurors for criminal 

background checks, the prosecutor refused to answer. When 

defense counsel made clear that this issue would be relevant to 

“any potential Wheeler Motion,” the prosecutor again refused to 

answer. Even assuming the prosecutor was under no obligation 

at that point to disclose how he had selected jurors for 

background checks, it is suspicious that he did not simply 

answer “no” when directly asked whether he “just checked all 

the Black prospective jurors.” If the prosecutor had not targeted 

only black jurors, why didn’t he say so? Answering “no” would 

have put to rest any notion that he had targeted black jurors, 

without requiring any affirmative description of how he had 

selected jurors for background checks.

It is true that “the prosecutor repeatedly accepted the jury 

when two African-American jurors were on the panel, and 

ultimately accepted a panel with three African-American 

jurors.” (Maj. opn., ante, at p. 43.) But the prosecutor accepted 

the third black juror on the panel after the three contested 

strikes had resulted in two Batson motions. (Cf. Miller-El v. 

Dretke (2005) 545 U.S. 231, 250 (Miller-El) [“This late-stage 

decision to accept a black panel member willing to impose a 

death sentence does not . . . neutralize the early-stage decision 
PEOPLE v. JOHNSON

Liu, J., dissenting

9

to challenge a comparable venireman . . . .”].) And as for the 

prosecutor’s acceptance of the other two black jurors on the 

panel, this fact may lessen but hardly dispels an inference of 

discrimination. (See dis. opn. of Cuéllar, J., post, at pp. 12–13.) 

Even if the totality of circumstances here does not amount to 

proof of discrimination, it is more than enough to raise a 

significant question about the prosecutor’s intent. In situations 

like this, “[t]he inherent uncertainty present in inquiries of 

discriminatory purpose counsels against engaging in needless 

and imperfect speculation when a direct answer can be obtained 

by asking a simple question.” (Johnson v. California (2005) 545 

U.S. 162, 172.)

In sum, the record readily supports an inference of 

discrimination, and the trial court erred in failing to require the 

prosecutor to state his reasons for striking three black jurors. 

Because this penalty trial occurred 27 years ago, there is no 

“realistic possibility” that the reasons for the strikes “could be 

profitably explored further on remand at this late date.” 

(Snyder v. Louisiana (2008) 552 U.S. 472, 486 (Snyder).) The 

only available remedy is reversal of the penalty verdict, for we 

cannot be confident, in light of the Batson error, that Johnson 

was sentenced by a jury selected without regard to race.

II.

In finding no inference of discrimination arising from 

disproportionate strikes of black jurors, today’s decision is not 

an anomaly in our case law. In another death penalty decision 

filed today, the court finds no prima facie case of discrimination 

where the prosecution’s removal of four black jurors was likely 

“substantially disproportionate to the representation of AfricanAmericans in the jury pool.” (People v. Rhoades (Nov. 25, 2019, 
PEOPLE v. JOHNSON

Liu, J., dissenting

10

S082101) __ Cal.5th __ [p. 52] (Rhoades).) These decisions come 

on the heels of another recent case finding no inference of 

discrimination arising from the prosecution’s removal of five out 

of six black jurors in the capital trial of a black defendant. 

(People v. Reed (2018) 4 Cal.5th 989, 998–1003.) And that case 

followed yet another decision finding no inference of 

discrimination where the prosecutor struck two out of three 

black jurors in the capital retrial of a black defendant accused 

of raping and murdering a white woman, where the first trial 

had resulted in a hung jury with the lone black juror as the 

holdout. (People v. Harris (2013) 57 Cal.4th 804, 833–838 

(Harris).)

The facts of each case are unique, and the court must 

decide each case based on the circumstances presented. But it 

can be illuminating to take a step back and see the forest, not 

just the trees. As I explain in Rhoades, this court has reviewed 

the merits of a first-stage Batson denial in 42 cases (all death 

penalty appeals) during the 14 years since Johnson v. 

California. (Rhoades, supra, __ Cal.5th __ [p. 3] (dis. opn. of Liu, 

J.).) “Not once did this court find a prima facie case of 

discrimination — even though all 42 cases were tried before 

Johnson v. California disapproved the ‘strong likelihood’ 

standard and held that ‘an inference of discrimination’ is 

enough.” (Ibid.) Equally remarkable is the fact that it has been 

more than 30 years since this court has found any type of Batson

error involving the removal of a black juror. (See People v. Snow

(1987) 44 Cal.3d 216.) This is despite the fact that “[t]he high 

court’s opinion [in Batson] responded specifically to the 

pernicious history of African Americans being excluded from 

jury service, calling such exclusion ‘a primary example of the 

evil the Fourteenth Amendment was designed to cure.’ ” 
PEOPLE v. JOHNSON

Liu, J., dissenting

11

(Hardy, supra, 5 Cal.5th at p. 124 (dis. opn. of Liu, J.), quoting 

Batson, supra, 476 U.S. at p. 85.)

A few months ago, the high court in Flowers reviewed our 

nation’s history of excluding African Americans from jury 

service and, with that context in mind, underscored the core 

principles of Batson. (Flowers, supra, 588 U.S. at p. __ [139 

S.Ct. at pp. 2238–2242].) Flowers went on to say: “In the 

decades since Batson, this Court’s cases have vigorously 

enforced and reinforced the decision, and guarded against any 

backsliding,” citing Foster v. Chatman (2016) 578 U.S. __ [136 

S.Ct. 1737], Snyder, supra, 552 U.S. 472, and Miller-El, supra, 

545 U.S. 231 — all cases involving the removal of black jurors. 

(Flowers, at p. __ [139 S.Ct. at p. 2243].) Clearly, racial 

discrimination against black jurors has persisted. Yet no 

comparable record of vigorous enforcement appears in our case 

law over the same period. (Cf. People v. Gutierrez (2017) 2 

Cal.5th 1150 [this court’s lone finding of Batson error in the past 

18 years].)

Although the Batson principle has been extended in 

various ways, the high court’s decisions indicate that the 

removal of black jurors from the criminal trial of a black 

defendant remains the paradigmatic case. Such exclusion 

results in three dimensions of harm. First, “the State denies a 

black defendant equal protection of the laws when it puts him 

on trial before a jury from which members of his race have been 

purposefully excluded.” (Batson, supra, 476 U.S. at p. 85.) 

Second, “by denying a person participation in jury service on 

account of his race, the State unconstitutionally discriminate[s] 

against the excluded juror.” (Batson, at p. 87.) “Other than 

voting, serving on a jury is the most substantial opportunity 

that most citizens have to participate in the democratic process.” 
PEOPLE v. JOHNSON

Liu, J., dissenting

12

(Flowers, supra, 588 U.S. at p. __ [139 S.Ct. at p. 2238].) For 

“otherwise qualified and unbiased persons” like Lois G., Shanna 

H., and Sharon H., exclusion “from the petit jury solely by 

reason of their race” is “a practice that forecloses a significant 

opportunity to participate in civic life.” (Powers, supra, 499 U.S. 

at p. 409.) The exclusion of African Americans, in particular, 

has long been condemned as a denial of equal citizenship, “ ‘an 

assertion of their inferiority, and a stimulant to . . . race 

prejudice . . . .’ ” (Flowers, at p. __ [139 S.Ct. at p. 2239], quoting 

Strauder v. West Virginia (1880) 100 U.S. 303, 308.) And third, 

the frequent and disproportionate exclusion of fully capable and 

qualified black citizens from jury service breeds distrust of law 

enforcement and “undermine[s] public confidence in the fairness 

of our system of justice.” (Batson, at p. 87.) It is for this reason 

that the high court in Batson said “[t]he harm from 

discriminatory jury selection extends beyond that inflicted on 

the defendant and the excluded juror to touch the entire 

community.” (Ibid.)

“Today, as when Batson was decided, it is a troubling 

reality, rooted in history and social context, that our black 

citizens are generally more skeptical about the fairness of our 

criminal justice system than other citizens.” (Harris, supra, 57 

Cal.4th at p. 865 (conc. opn. of Liu, J.).) The high court in recent 

years has spoken with clarity, regularity, and urgency about the 

continuing need to eliminate racial discrimination from our 

justice system. It has described “racial bias” as “a familiar and 

recurring evil that, if left unaddressed, would risk systemic 

injury to the administration of justice.” (Peña-Rodriguez v. 

Colorado (2017) 580 U.S. __, __ [137 S.Ct. 855, 868].) It has said 

“[t]he duty to confront racial animus in the justice system” 

belongs to the courts and “is not the legislature’s alone.” (Id. at 
PEOPLE v. JOHNSON

Liu, J., dissenting

13

p. __ [137 S.Ct. at p. 867].) It has said “ ‘[d]iscrimination on the 

basis of race, odious in all aspects, is especially pernicious in the 

administration of justice.’ ” (Buck v. Davis (2017) 580 U.S. __, 

__ [137 S.Ct. 759, 778].) And it has said clearly and recently: 

“Equal justice under law requires a criminal trial free of racial 

discrimination in the jury selection process.” (Flowers, supra, 

588 U.S. at p. __ [139 S.Ct. at p. 2242].)

It is time that we, too, bring a greater sense of urgency to 

ferreting out racial discrimination in the criminal justice 

system. With respect to enforcing Batson, this means we must 

not “elevate[] the standard for establishing a prima facie case 

beyond the showing that the high court has deemed sufficient to 

trigger a prosecutor’s obligation to state the actual reasons for 

the strike.” (Harris, supra, 57 Cal.4th at p. 864 (conc. opn. of 

Liu, J.).) Viewing today’s decision in its particulars and in the 

broader context of our case law, I continue to “have serious 

doubts as to whether our jurisprudence has held true to Batson’s 

mandate.” (Id. at p. 866 (conc. opn. of Liu, J.); see Rhoades, 

supra, __ Cal.5th __ [pp. 16–22] (dis. opn. of Liu, J.).) I 

respectfully dissent.

LIU, J.
1

PEOPLE v. JOHNSON

S029551

Dissenting Opinion by Justice Cuéllar

Racial discrimination in jury selection is unlawful. But 

“there can be no dispute,” the United States Supreme Court 

warns us, that the system of peremptory challenges — which 

allows a party to dismiss a juror for any reason, or no reason at 

all — “permits ‘those to discriminate who are of a mind to 

discriminate.’ ” (Batson v. Kentucky (1986) 476 U.S. 79, 96 

(Batson).) Only if courts are vigilant can society prevent 

prejudiced or unscrupulous lawyers from using peremptory 

challenges as tools for unlawful discrimination. So when a trial 

court has even a suspicion of discriminatory excusals, clear 

precedent requires it to act by asking the party exercising the 

peremptory challenge to explain why the juror is being excused.

That’s a far cry from what happened in this case. The trial 

court had compelling evidence that the prosecutor, even before 

striking any African American jurors, had singled out African 

American jurors for special — and unlawful — scrutiny. Yet 

when the prosecutor sought to excuse a majority of the African 

American prospective jurors from the jury that would decide 

whether defendant Joe Edward Johnson would be subject to the 

death penalty, no one asked the prosecutor to explain his 

reasons. 

We should not affirm the trial court’s penalty phase 

verdict on this record. A careful review of that record reveals 

more than sufficient evidence to suggest that the prosecutor’s 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

2

peremptory excusal of African American prospective jurors may 

have been based on their race. First, issues of race were salient 

in this case — defendant is African American, while the victims 

of his murder and rape were white — which provided the 

prosecutor a plausible motive to minimize the number of jurors 

he might stereotypically perceive as favorable to Johnson. 

Second, the prosecutor appeared to single out African American 

jurors in conducting his extrajudicial criminal history 

investigation, and he pointedly refused to deny this when he was 

questioned about it. Third, the prosecutor was successful in 

targeting the African American prospective jurors: he not only 

removed most of the African Americans who made it into the 

jury box, but he exercised peremptory challenges against 

African American jurors at a far higher rate than other jurors. 

Fourth, this record does not establish race-neutral reasons that 

would necessarily dispel any inference of bias in striking these 

jurors. Nor does the majority offer any. What the record does 

reveal is a motive for the prosecutor to discriminate against 

African American jurors, a plan to effectuate that 

discrimination, and the prosecutor’s success in removing such 

jurors. 

Yet not once did the trial court ask the prosecutor why he 

struck the African American jurors. If I were a trial judge 

presented with these circumstances, I would consider it my duty 

under the Constitution to ask the prosecutor his reasons for 

excusing them. A court’s clear-as-day responsibility is to do so 

whenever “ ‘the totality of the relevant facts give rise to an 

inference of discriminatory purpose.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168 (Johnson).) That we’re reviewing this 

record on appeal does not relieve us of this burden. In this case, 

as the majority admits, our role is just like the trial court’s: we 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

3

must review the record “ ‘independently.’ ” (Maj. opn., ante, at 

p. 40; accord, Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 

1199.) 

The majority opinion purports to undertake such a review 

and concludes that the record is insufficient to raise an inference 

of discrimination. But it does so by mischaracterizing the worst 

of the prosecutor’s misconduct. (Maj. opn., ante, at p. 44.) It 

glosses over the prosecutor’s success in achieving his goal. (Id. 

at pp. 42-43.) And it artificially compartmentalizes the relevant 

facts to avoid confronting the disturbing mosaic these facts 

reveal. While it can thereby safely conclude that each isolated 

fact does not raise a discriminatory inference (id. at pp. 42, 46), 

that’s not how we’re supposed to review claims of discrimination 

in jury selection. (See Flowers v. Mississippi (2019) 588 U.S. ___ 

[139 S.Ct. 2228, 2235] (Flowers).) What’s worse, it sets a bad 

example for trial courts adjudicating such claims in the future. 

I have no choice but to dissent, with respect. 

I.

We analyze a claim of discrimination in jury selection in 

three distinct steps. First, the opponent of a peremptory strike 

must make out a prima facie case by showing that the totality 

of the relevant facts gives rise to an inference of discriminatory 

purpose in the exercise of peremptory challenges. Second, if the 

opponent of the strike successfully makes out a prima facie case, 

the burden shifts to the strike’s proponent, who must explain 

the basis for excusing the juror by offering permissible, 

nondiscriminatory justifications. Third, if the party who used a 

strike offers a nondiscriminatory reason, the trial court must 

decide whether the strike’s opponent has proved the ultimate 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

4

question of purposeful discrimination. (Johnson, supra, 545 

U.S. at p. 168.) 

This case involves only the “low threshold” inquiry at the 

first step. (People v. Scott (2015) 61 Cal.4th 363, 384 (Scott).) 

The threshold is low because “[t]he Batson framework is 

designed to produce actual answers to suspicions and inferences 

that discrimination may have infected the jury selection process. 

[Citation.] The inherent uncertainty present in inquiries of 

discriminatory purpose counsels against engaging in needless 

and imperfect speculation when a direct answer can be obtained 

by asking a simple question.” (Johnson, supra, 545 U.S. at p. 

172.) Our task is to examine the record so we can determine 

whether “discrimination may have occurred.” (Id. at p. 173, 

italics added.) Where (as here) the trial court failed to inquire 

into the prosecutor’s reasons, we may affirm only if “[n]o 

reasonable inference” of discrimination could arise from the 

totality of the relevant facts. (State v. Robbins (N.C. 1987) 356 

S.E.2d 279, 296; accord, People v. Howard (2008) 42 Cal.4th 

1000, 1018.)

A.

Our state and federal Constitutions forbid prosecutors 

from striking “a black juror based on an assumption or belief 

that the black juror would favor a black defendant.” (Flowers, 

supra, 139 S.Ct. at p. 2241; accord, People v. Wheeler (1978) 22 

Cal.3d 258, 281.) In practice, though, a prosecutor may 

nonetheless harbor just such a belief and try to capitalize on it. 

So we have deemed it “especially relevant” to the discrimination 

inquiry whether the defendant and the excused jurors are 

members of the same identified group and whether the victims 

are members of the group to which a majority of the remaining 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

5

jurors belong. (People v. Reed (2018) 4 Cal.5th 989, 999 (Reed); 

see People v. Rhoades (Nov. 25, 2019, S082101) ___ Cal.5th ___ 

[p. 62] (Rhoades) [“the racially charged nature of a case may 

properly inform an appellate court’s consideration of whether a 

pattern of strikes establishes a prima facie case of 

discrimination”].) Both factors are present here. Johnson, like 

the prospective jurors who were the subject of the 

Batson/Wheeler motion, is African American. The murder 

victim, Aldo Cavallo, was white. So is Mary S., who was the 

victim in perhaps the most incendiary act offered in 

aggravation: a brutal assault and rape at gunpoint, in her 

church after mass. So the race of the defendant and the victims 

in this case does raise “heightened concerns about racial bias in 

jury selection.” (Rhoades, at p. __ [p. 65].) 1 

The racially charged nature of this prosecution would not 

have been lost on a prosecutor who sought to discriminate in 

jury selection. (See Smith v. U.S. (D.C. 2009) 966 A.2d 367, 376-

 

1 Yet contrary to our clear precedent, the trial court did not 

find these circumstances “especially relevant” or worthy of 

“heightened concern.” Rather, the trial court began its analysis 

of the Batson/Wheeler motion by asserting — incorrectly — that 

“if you compute the number of Caucasians that were available, 

his exclusion rate for them would be the same or greater than 

for the black persons who have come into the jury box.” Defense 

counsel diplomatically chose “not to disagree with [the court’s] 

math so much” and focused instead on the especially relevant 

fact that “Mr. Johnson is not white. He’s black,” like the jurors 

who were the subject of the Batson/Wheeler motion. 

Unfortunately, the trial court erroneously failed to accord that 

fact — or the race of the victims — any heightened concern. It 

first offered a non sequitur — “you don’t have to be black to 

make this motion” — and then summarily dismissed defense 

counsel’s stated concerns: “So, it isn’t just race specific to a 

defendant. That’s just a side issue that we need not get into.” 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

6

377.) Which is why we apply “ ‘closer scrutiny’ ” to the 

prosecution’s peremptory challenges in this case. (Id. at p. 377; 

see Powers v. Ohio (1991) 499 U.S. 400, 416 [“Racial identity 

between the defendant and the excused person might in some 

cases be the explanation for the prosecution’s adoption of the 

forbidden stereotype, and if the alleged race bias takes this form, 

it may provide one of the easier cases to establish both a prima 

facie case and a conclusive showing that wrongful 

discrimination has occurred”].) 

B.

“Searching” is not a word we can plausibly apply to the 

majority’s scrutiny of the record. 

Among the most troubling aspects of this case is the 

prosecutor’s unwillingness — or inability — to deny a direct 

accusation that he had singled out the African American jurors 

in his criminal history investigation. But the majority’s analysis 

nowhere addresses this remarkable, if implicit, admission of 

discriminatory conduct. Instead, it erects and then knocks down 

an argument of its own creation. In the majority’s view, Johnson 

is “arguing that the prosecutor appeared to conduct a criminal 

background check on only Kenneth M.” (Maj. opn., ante, at p. 

44.) The majority then hastens to point out how the record 

indicates “that Kenneth M. was not the only juror he 

investigated”; it shows merely “that Kenneth M. may have been 

the only juror checked who provided inaccurate information on 

his questionnaire.” (Ibid.) The majority is correct on both 

points, but neither responds to the argument Johnson makes. 

Indeed, Johnson explicitly recognized that “the prosecutor 

apparently investigated more than one juror.” 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

7

What matters in this case is not how many jurors the 

prosecutor investigated, but what triggered his selective 

investigation of certain jurors in the first place. As Johnson 

explains clearly enough, “The prosecutor’s explanation that he 

might investigate a particular juror if ‘something on the 

questionnaire sparks my interest’ [citation] does nothing to 

dispel the suspicion that race played a role in what sparked his 

interest.” When we examine the totality of the relevant facts, it 

is fair to infer the prosecution appeared to have a plan to target 

the African American jurors. 

Consider the relevant facts. The prospective jurors filled 

out a questionnaire. Prior to the voir dire of any African 

American juror — and armed only with that questionnaire, 

which included information about the juror’s race — the 

prosecutor announced he had run a computer criminal history 

check on “some of the jurors” and happened to discover that 

Kenneth M., an African American prospective juror, had two 

misdemeanor convictions. Those convictions were inconsistent 

with a response on his jury questionnaire, which asked whether 

he had ever been accused of or arrested for a crime.

Defense counsel immediately wondered just what it was 

about Kenneth M. that would have sparked the prosecutor to 

conduct a special investigation into that particular juror. 

Indeed, defense counsel noted the questionnaire itself didn’t 

indicate that the juror was lying “or lead one to suspect that

maybe he’s misinforming the Court or us with his background.” 

Yet the prosecutor admitted that he had not checked “all the 

jurors so far” — indeed, he said that “takes too much time. I 

don’t have time to do that.” Given the racially charged nature 

of the prosecution, defense counsel asked the question that 

would be on anyone’s mind: “I am wondering if [the prosecutor] 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

8

just checked all the black prospective jurors with respect to any 

criminal record.” 

Under ordinary circumstances, that seems like a 

straightforward question that should be easy to answer: Were 

you racially profiling the African American prospective jurors? 

An answer wouldn’t reveal the prosecutor’s legitimate strategy 

or thinking. What would make the question daunting for the 

prosecutor to answer, though, is if he was in fact racially 

profiling the African American jurors. To say yes would be 

admitting to what the majority calls “a prima facie case of 

discrimination.” (Maj. opn., ante, at p. 44, fn. 5.) To say no 

would be lying to a tribunal, an ethical violation. (Rules Prof. 

Conduct, rule 3.3(a)(1).) A natural inference from the 

prosecutor’s actual response — “I don’t think I am obliged to 

answer that inquiry” — is that the prosecutor wanted to avoid 

making that choice. The basis for the discriminatory inference 

became even stronger when the prosecutor continued not to 

answer, even when the court made clear the price of his silence: 

“Obviously, if we reach a stage in the proceeding in which there 

is some issue of Wheeler-type concerns, then the state of mind 

and the purpose of the prosecutor then would become relevant.”2 

 

2 The record does not indicate that the trial court ever 

considered this pivotal fact in denying Johnson’s Batson

challenge, however. Fortunately, as an appellate court, “we 

have the benefit of being able to examine the record in more 

detail, and at a great deal more leisure, than a trial court in the 

midst of jury selection.” (Rhoades, supra, ___ Cal.5th ___ [p. 55, 

fn. 16].) But we must actually examine the record in detail to 

get the benefit of this perspective. The majority opinion falls 

short in this regard. 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

9

The majority notes the absence of any significant 

disparities in the prosecutor’s questioning of the African 

American jurors in voir dire. (Maj. opn., ante, at p. 44.) But this 

glosses over the fact that the best evidence of a disparity in the 

overall selection of jurors was unavailable precisely because the 

prosecutor refused to answer a direct question about that 

disparity. (See Johnson, supra, 545 U.S. at p. 171, fn. 6, citing 

Vajtauer v. Comm’r of Immigration (1927) 273 U.S. 103, 111; 

Vajtauer, at p. 111 [“ ‘Silence is often evidence of the most 

persuasive character’ ”].)

When the majority finally gets around to acknowledging 

that direct question — and the inferences to be drawn from the 

prosecutor’s unwillingness or inability to answer — its analysis 

proves less than persuasive. The majority speculates that 

maybe the prosecutor didn’t want to encourage further probing 

into his “trial strategy.” (Maj. opn., ante, at p. 45.) But no 

legitimate trial strategy can encompass racial profiling of 

prospective jurors. Moreover, the prosecutor’s reticence 

naturally culminated in the repeated follow-up requests that a 

simple “yes” or “no” could have avoided. Such conduct matters 

not because the prosecutor was legally obligated under 

Batson/Wheeler to answer defense counsel’s question. What 

matters instead is that the record taken as a whole — the racial 

atmospherics of the charged crimes, the absence of anything in 

Kenneth M’.s questionnaire responses that would trigger a 

selective background inquiry, and the fact that Kenneth M. and 

defendant were of the same race — would lead any reasonable 

observer to wonder whether the prosecutor had racially profiled 

him (and perhaps the rest of the African American jurors). Even 

if it’s conceivable the prosecutor declined to address this issue 

simply because he wasn’t legally obligated to do so, it’s also
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

10

plausible that the prosecutor declined to provide a response 

because he was caught on the horns of a dilemma: either admit 

his discriminatory intent and jeopardize the venire, or deny it 

and risk a disciplinary inquiry. 

Of course, Johnson’s burden at this stage of the inquiry is 

not to prove that the prosecutor’s criminal history investigation 

was race-based. All he needs to show is that the record raised 

an inference of discriminatory intent. Because there can be no 

legitimate explanation for targeting only the African American 

jurors for a criminal history check, such disparate treatment —

if it occurred — would be powerful evidence of discriminatory 

intent. (See Flowers, supra, 139 S.Ct. at pp. 2246-2248.)

C.

The record also supports the inference that the 

prosecutor’s efforts to target the African American jurors was 

not limited to criminal history investigations. As the majority 

concedes, the prosecutor struck more than half of the African 

American jurors during voir dire — but fewer than a third of the 

other jurors. Moreover, the prosecutor used 21 percent of his 

strikes (4/19) to remove African American jurors — which was 

62 percent higher than their representation in the relevant pool 

(7/54). 

At least in this case, such disparities tend to support an 

inference of bias. (See, e.g., Fernandez v. Roe (9th Cir. 2002) 286 

F.3d 1073, 1078 [inference established where “[t]he prosecutor 

struck four out of seven (57%) Hispanics, . . . thus supporting an 

inference of discrimination. While Hispanics constituted only 

about 12% of the venire, 21% (four out of nineteen) of the 

prospective juror challenges were made against Hispanics”]; 

Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 813 [inference 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

11

established when the prosecutor used 56 percent of her challenges 

against African Americans, who comprised only 30 percent of the 

pool — a relative disparity of 87 percent], overruled on other 

grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685; U.S. 

v. Alvarado (2d Cir. 1991) 923 F.2d 253, 255-256 [inference 

established where the prosecutor challenged 50 percent of 

minority venirepersons, who represented only 30 percent of the 

pool]; id. at p. 256 [“We think a challenge rate nearly twice the 

likely minority percentage of the venire strongly supports a prima 

facie case under Batson”]; Cazares v. Evans (C.D.Cal. Nov. 8, 2010, 

No. CV 05-1045-VBF(JC)) 2010 U.S. Dist. Lexis 142142, *43 

[inference established where “[t]he prosecutor had used four of 15 

challenges (i.e., 27 percent of its challenges) to remove Hispanic 

jurors, removing 57 percent of the available Hispanic jurors, in a 

case where Hispanics comprised roughly 19 percent of the jury 

pool”].)

The majority endeavors to avoid this conclusion by 

misdirecting the focus of the inquiry. According to the majority, 

these statistics “do not by themselves suggest an inference of 

discrimination.” (Maj. opn., ante, at p. 42.) Yet no one claims they 

do. Indeed, the small sample size limits to some extent the import 

of these disparities. (See Carmichael v. Chappius (2d Cir. 2017) 

848 F.3d 536, 549, fn. 79.) What we must do, though, is consider 

the disparities in the context of all the other relevant facts. (People 

v. Gutierrez (2017) 2 Cal.5th 1150, 1158.) Those facts include the 

racially charged aspects of the trial — as well as a strong suspicion 

that the prosecution may have targeted the African American 

jurors for special scrutiny when conducting background checks. It 

is in light of those facts that we must consider statistical evidence 

of the disparate rate at which the prosecution excused jurors who 

were African American relative to jurors who were not. Reviewing 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

12

the circumstances independently — as the majority recognizes we 

must — I’d say at a minimum it rises to the “sure looks suspicious” 

standard. (Cf. Carmichael, at pp. 548-549 [“Had we been presiding 

over jury selection in Carmichael’s case in the first instance, we 

might very well have concluded that Carmichael made out a prima 

facie showing of race discrimination”].) 

The majority casts aside such concerns by purporting to rely 

on Reed, supra, 4 Cal.5th 989. But that case is readily 

distinguished. The prosecutor in Reed used 44 percent of his 

strikes to excuse African American jurors, which was only 29 

percent higher than their representation in the venire (34 percent). 

(Id. at p. 1000.) Here, though, the strike rate for African 

Americans was 62 percent higher than their representation in the 

venire. Nor was there any discussion in Reed of a disparity in the 

exclusion rate for African American jurors relative to the rest of 

the pool. In this case, by contrast, the disparity in the exclusion 

rate was substantial. The prosecutor removed 57 percent of the 

African American jurors, but only 32 percent of the remaining 

jurors — an absolute disparity of 25 percent and a relative 

disparity of 78 percent. 

True: the jury that decided Johnson’s fate included three 

African Americans. But their presence, as the majority concedes, 

“ ‘does not necessarily settle all questions about how the 

prosecution used its peremptory challenges.’ ” (Maj. opn., ante, at 

p. 43, quoting Reed, supra, 4 Cal.5th at p. 1000.) Indeed, while 

their presence may “ ‘help lessen the strength of any inference of 

discrimination that the pattern of the prosecutor’s strikes might 

otherwise imply’ ” (ibid.), the lessening of the inference in this case 

is slight. After all, the prosecutor did not have enough peremptory 

challenges left to remove each of the remaining African American 

jurors and Kenneth M. (See maj. opn., ante, at p. 42.) Moreover, 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

13

as luck would have it, jurors in that racial group “were 

overrepresented in the box compared to their representation in the 

candidate pool.” (Id. at p. 43.) The prosecutor likely feared he 

could not have excused additional African American jurors without 

attracting uncomfortable attention. 

At core, the essential question that merits attention here is 

whether racial discrimination may have occurred in the excusal of 

the jurors that are the subject of the Batson/Wheeler motion, “ ‘not 

on the fact that other blacks may remain on the jury panel.’ ” 

(Holloway v. Horn (3d Cir. 2004) 355 F.3d 707, 729 [finding an 

inference of discrimination, despite the presence of three African 

American jurors on the panel]; U.S. v. Alvarado, supra, 923 F.2d 

at p. 256 [“The discrimination condemned by Batson need not be 

as extensive as numerically possible”].) This is so because our 

state and federal Constitutions prohibit efforts to reduce the 

number of African American jurors, not just efforts to bar them 

entirely. (See People v. Snow (1987) 44 Cal.3d 216, 225 [allowing 

a prosecutor to “ ‘ “avoid the appearance of systematic exclusion by 

simply passing the jury while a member of the cognizable group 

that he wants to exclude is still on the panel” ’ ” would “ ‘ “ignore[] 

the fact that other members of the group may have been excluded 

for improper, racially motivated reasons” ’ ”]; accord, Sanchez v. 

Roden (1st Cir. 2014) 753 F.3d 279, 288, 306-307 [finding an 

inference of discrimination, despite the presence of five African 

Americans on the jury panel]; U.S. v. Battle (8th Cir. 1987) 836 

F.2d 1084, 1086 [finding an inference of discrimination, despite the 

presence of two African Americans on the panel; “the striking of a 

single black juror for racial reasons violates the equal protection 

clause, even though other black jurors are seated, and even when 

there are valid reasons for the striking of some black jurors”]; 

People v. Bolling (N.Y. 1992) 582 N.Y.S.2d 950, 953-954 [finding 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

14

an inference despite the presence of five African Americans on the 

panel]; see generally U.S. v. David (11th Cir. 1986) 803 F.2d 1567, 

1571 [“[T]he command of Batson is to eliminate, not merely to 

minimize, racial discrimination in jury selection”].) The majority, 

unfortunately, fails to grant Johnson the full measure of 

constitutional protection to which he is entitled.

D.

Taken together, these circumstances support an inference 

that the prosecutor was targeting the African American jurors. 

What should have triggered further concerns among the members 

of the majority is the absence of any “nondiscriminatory reasons 

for [the] peremptory challenge[s] that are apparent from and 

‘clearly established’ in the record [citations] and that necessarily 

dispel any inference of bias.” (Scott, supra, 61 Cal.4th at p. 384.)

Consider, for example, Prospective Juror Lois G. As the 

majority concedes, there are no obvious race-neutral reasons for 

this African American juror’s excusal. She would have been, by all 

accounts, a more than capable juror. She was a 59-year-old middle 

school administrator who was pursuing her doctorate in education. 

Among her responsibilities was student discipline. She assisted 

teachers when problems arose and interacted with the police “a 

lot.” She described her school’s “biggest problems” as guns, knives, 

and drugs, and said the prevalence of gangs was “real 

disheartening.” 

Nor did her views on law enforcement seem disqualifying, 

either. She had twice served on a jury that reached a verdict, one 

of which was a homicide case. Her close friends included police 

officers, and she had herself been the victim of a burglary and a 

car theft. (See People v. Turner (1986) 42 Cal.3d 711, 719 [finding 

an inference of discrimination where the prosecutor struck the 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

15

first two African Americans in the box: each had been a victim of 

crime, one had a friend who was a police officer, and the defendant 

was a member of the excluded group but his alleged victims were 

white].) She believed courts were fair in sentencing criminal 

defendants, at least in the cases with which she was familiar. She 

was not predisposed to vote for or against the death penalty, and 

said her judgment would be based on the evidence in the case. 

Most importantly, she intended to be fair and listen to all the facts 

before coming to a decision. 

The reasons conjured in the Attorney General’s brief for the 

first time in this court are strained and fall far short of “dispelling” 

an inference of discriminatory intent. (Reed, supra, 4 Cal.5th at p. 

1001.) He contends first that Lois G. “harbored a certain 

skepticism or distrust regarding the fairness of the criminal justice 

system.” As proof, he claims that she replied “equivocally” when 

asked about the fairness of criminal sentencing — but her 

questionnaire answer does not reveal any such equivocation. In 

response to a question soliciting her view whether courts are “too 

lenient, too strict, or usually fair and appropriate in sentences 

handed down to criminal offenders,” the juror responded, “In cases 

I’ve heard about the court seemed to be fair. It is difficult to judge 

if you’re not part of the situation.” In any event, the prosecutor did 

not ask any follow-up questions on this topic, as he “probably 

would have done if [the issue] had actually mattered.” (Miller-El 

v. Dretke (2005) 545 U.S. 231, 246.) 

The other proffered reason is a hypothesis that the 

prospective juror “would be particularly sympathetic to the 

mitigating evidence of childhood abuse and alleged mental illness” 

because of her “career choice[].” This seems quite unlikely. A 

substantial part of the defense strategy was to offer psychiatric 

and psychological experts to opine about Johnson’s mental 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

16

disorders. (See maj. opn., pp. 14-16.) Yet Lois G. agreed with the 

prosecutor that the value of those opinions could only be as good 

as the information underlying those opinions: “I think you have to 

assess the facts because otherwise you’re biased if you are not 

looking at — if you look at somebody’s opinion that creates another 

problem because everybody has a different opinion . . . .” 

Both of these belatedly hypothesized reasons, moreover, 

constitute rank speculation that the prosecutor excused the juror 

for a nondiscriminatory reason. The prosecutor was never asked 

to offer his reasons for excusing Lois G. — or any of the other 

African American prospective jurors. It’s certainly possible that if 

the prosecutor had been asked to provide his reasons, he might’ve 

offered these two. And it’s possible, I suppose, that the trial court 

might’ve credited these reasons as sincere and not pretextual —

even though the record tends to cast doubt on both of them. In the 

absence of that actual exchange, though, what’s obvious is the lack 

of a compelling or even modestly convincing reason — other than 

her race — for excusing Lois G. So this factor, too, weighs in favor 

of an inference of discriminatory intent. (See Boyd v. Newland (9th 

Cir. 2006) 467 F.3d 1139, 1147.) 

II.

The stakes are as high as they can get in this case. Johnson 

was sentenced to death in a proceeding that may have been tainted 

by racial discrimination in selecting the jury that decided his fate. 

Yet the majority unjustifiably declines to investigate whether that 

inference of discrimination became a reality. 

But there’s more. By failing to grapple with what the 

prosecutor actually did, the court unwittingly provides a road map 

for ensuring that unlawful discrimination evades judicial scrutiny. 

The majority effectively encourages prosecutors to frontload their 
PEOPLE v. JOHNSON

Cuéllar, J., dissenting

17

unlawful targeting of disfavored groups: single out the disfavored 

group for intensive investigation prior to jury selection, use the 

results to disqualify as many members of that cognizable group as 

possible in voir dire, and then stonewall any inquiry into whether 

the investigation was mere racial profiling. The cost to a 

prosecutor bent on discriminating? Nothing. Getting a leg up in 

striking disfavored groups from the jury pool, so that fewer 

discriminatory excusals are needed during voir dire? Priceless. 

But justice — and the appearance of justice –– are prized less. (See 

Batson, supra, 476 U.S. at p. 87 [“Selection procedures that 

purposefully exclude black persons from juries undermine public 

confidence in the fairness of our system of justice”]; cf. Campbell v. 

Louisiana (1998) 523 U.S. 392, 399.)

The prosecutor excused most of the African Americans in the 

jury pool. There’s more than enough evidence to raise an inference 

that the prosecutor may have acted with discriminatory intent in 

doing so. We should not affirm the judgment without demanding 

the prosecutor provide his reasons for excusing those prospective 

jurors. And we should not turn a blind eye when a prosecutor 

makes apparent efforts to single out African American prospective 

jurors for criminal history investigations. Because the majority’s 

decision all but bestows its blessing on such conduct from the 

prosecution, I must dissent with respect. 

CUÉLLAR, J.

I Concur:

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson

_______________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

_______________________________________________________________________________

Opinion No. S029551

Date Filed: November 25, 2019

_______________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Peter Mering

_______________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the 

Supreme Court, Kent Barkhurst and Andrew C. Shear, Deputy State Public Defenders, for 

Defendant and Appellant.

Brian Stull; Linda Lye; Lydia Gray; and David Loy for ACLU, ACLU of Northern California, 

ACLU of Southern California and ACLU of San Diego and Imperial Counties as Amici Curiae on 

behalf of Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie 

A. Mitchell and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew C. Shear

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607

(510) 267-3300

Melissa Lipon

Deputy Attorney General

1300 I Street

Sacramento, CA 95814

(916) 210-7662