Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed. (Super. Ct. No. 04ZF0071)
The opinion of the court was delivered by: O'leary, Acting P. J.
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Lynn Dean Johnson appeals from his conviction for first degree murder. (Pen. Code, § 187.) The jury found true a special circumstance allegation of rape (Pen. Code, § 190.2, subd. (a)(17)(C)), and Johnson was sentenced to life in prison without the possibility of parole. On appeal he contends: (1) the trial court erred by excluding evidence of third party culpability; (2) Evidence Code section 1108, which authorized admission of evidence of uncharged sex offenses committed by Johnson, is unconstitutional; (3) jury instructions allowing the identity of the perpetrator to be proven by defendant's out-of-court statements alone lessened the prosecution's burden of proof; and (4) the court improperly instructed the jury it need not unanimously agree as to the theory of first degree murder on which it relied. We reject Johnson's contentions and affirm the judgment.
The 1985 Murder of Bridgett Lamon
On the morning of May 26, 1985, the Sunday of Memorial Day weekend, the body of 19-year-old Brigett Lamon was found in a dumpster behind a building in an industrial area in Anaheim Hills near Yorba Linda. She was nude from the waist down with bloodstained knotted bed sheets and a white plastic bag wrapped around her head.
An autopsy revealed Lamon had suffered at least a dozen blows to her head likely inflicted by a hammer wielded with a great deal of force. There were massive injuries to her torso including several broken ribs. Ligature marks on her ankles indicated they had been bound with a braided rope prior to her death--close to the time of death. Lamon's arms bore defensive wounds, indicating a violent struggle with an assailant wielding a hammer-like weapon preceded her death. She had a 0.11 percent blood alcohol level, indicating she had consumed six to seven 12-ounce beers over a three hour period or eight beers over a five-hour period.
Dr. Richard Fukumoto conducted the autopsy on Lamon's body. Because of the curving, non linear nature of some of Lamon's injuries, he initially surmised they were inflicted with a claw-type hammer. At trial he was shown a sheet metal hammer, which has a single tapered back, not a two-pronged claw like a carpenter's hammer. Fukumoto testified that when he conducted the autopsy, he had not known such a tool existed. He believed Lamon's injuries were consistent with having been inflicted with the single tapered end of a sheet metal hammer.
Vaginal and anal swabs were taken from Lamon's body at the crime scene and during the autopsy. DNA testing was not originally conducted on those swabs as it was not part of forensic procedure in 1985. Daniel Gammie, a criminalist in the Orange County Crime Lab, conducted the original analysis of the crime scene swabs. He found semen on both the vaginal and anal swabs. At the time, Gammie concluded given the low concentration of semen found in the swab samples, the semen was not deposited at or near the time of Lamon's death. At trial, Gammie, who had left the crime lab in 1995, testified he no longer agreed with his 1985 conclusion. His subsequent experiences in analyzing sperm samples had taught him the concentration of semen did not necessarily correlate to the time of its deposit, i.e., a low concentration of sperm was not inconsistent with recent sexual activity.
A friend and co-worker of Lamon's said Lamon had left work at about 9:30 p.m. on Saturday, May 25, 1985, the night of her murder, and Lamon was excited because she had a date. The friend told police she overheard Lamon place a telephone call to someone named "Kevin," but learned that Kevin had gone to the movies. Lamon told her friend she was going to have her mother take her to Kevin's house to spy on him because she thought Kevin might have gone on a date with someone else. According to Lamon's stepfather, later that evening, Lamon arrived at his home crying and Lamon's mother drove her home. Neither the friend nor the stepfather saw Lamon drinking alcohol that night, and she did not appear intoxicated.
The "Cold Case" Investigation
Lamon's murder remained unsolved for almost 20 years. In 2002, Anaheim Police Sergeant Jay Clapper was assigned to review the case. He submitted the swabs taken during Lamon's autopsy (apparently the swabs taken at the crime scene had been lost) to the Orange County Crime Lab for DNA testing. In May 2004, Clapper received DNA results matching the semen to Johnson's genetic profile. At the time, Johnson was incarcerated for a violent sex offense committed against an 11-year-old girl.
Clapper obtained an arrest warrant and on May 20, 2004, he and another officer interrogated Johnson in prison. After waiving his Miranda*fn1 rights, Johnson told Clapper that in May 1985 he worked as a sheet metal worker for Ideal Heating and Air Conditioning. At work, he used sheet metal tools such as snips, a screwdriver, electric cordless drills, a tape measure, and a square headed sheet metal hammer.
Johnson told Clapper that during the period when Lamon was killed, he lived in Anaheim with a "partner" named Steve who often brought women over to the house to get high and trade drugs for sex. Johnson said the women were always at least 30 years old--never younger. When showed a photograph of Lamon, Johnson told police she did not look familiar to him, and he emphatically denied knowing her. Johnson asked Clapper how old Lamon was, and when told she was 19, Johnson replied, "Way too young for me, as far as . . . I've never dated a girl that young." Although Johnson denied knowing Lamon, he could not be sure if she had ever been to his house. He denied having anything to do with Lamon's murder. Johnson explained that when he was sent to prison, his "partners" cleaned out his storage shed where all his personal belongings, including sheets, pillow, and bedding, were kept.
Mary Hong, a forensic scientist with the Orange County Crime Lab, conducted the 2004 DNA testing on the vaginal and anal swabs from Lamon's autopsy. She concluded Johnson could not be eliminated as the contributor of the semen found in Lamon's vagina and anus and there was only one male contributor to that DNA. The DNA profile from the external vaginal area would be found in fewer than one in one trillion individuals; the DNA profile from the anal area would be found in fewer than one in ten billion individuals. Johnson's DNA could not be matched to that found on other crime scene items. The sheet that had been wrapped around Lamon's head had only Lamon's DNA. DNA from a bed cover found at the scene was foreign to both Lamon and Johnson, and although it was male, it was insufficient to develop a full profile.
Hong testified she disagreed with Gammie's 1985 conclusion that due to the low concentration, the semen found on the vaginal and anal swabs taken at the crime scene were not deposited at or near the time of death. Hong agreed with Gammie's revised opinion. Because of variations in the amount of semen that could be deposited, and the manner in which it was deposited, semen concentration and sperm density is not a telling factor about timing of deposit. In her opinion, the semen could have been deposited any time up to 24 hours prior to the time it was collected.
Johnson's History of Prior Sexual Assaults
The prosecution introduced evidence of Johnson's history of sexual assaults on girls. Crystal L. testified about an incident occurring in 1983, when she was about 11 years old. Crystal lived with her mother and Johnson, who was her mother's boyfriend at the time. Crystal had gotten out of the shower, wrapped herself in a towel, and was walking through the master bedroom towards her room. Johnson was sitting on the bed. He grabbed Crystal by the hand, pulled her close to him, put his hands between her legs and rubbed her vagina for one or two minutes. He told Crystal it was "okay" because he was her father and fathers and daughter could have secrets.
In 1988, Johnson exposed himself to a 17-year-old girl at a gas station. He pled guilty to willfully exposing his private parts for purposes of sexual gratification.
Also in 1988, 11-year-old Stephanie A. went to a bowling alley with her mother and brother to play video games with Johnson. When Stephanie went to Johnson's truck to get quarters, he followed her, pushed her in inside the truck, and drove off with her. Johnson drove Stephanie to a parking lot, put a gun to her head, and forced her to take her pants off. He forced her to orally copulate him, and he orally copulated her. He then drove Stephanie to two more locations and engaged in further sexual activity with her. Johnson then drove Stephanie to an apartment complex. She heard police sirens and tried to get out of the truck. Johnson pulled her out of the truck dragging her on the ground as he tried to flee.
Johnson presented testimony from Veronica Bell, a friend of Lamon's who last saw her about two weeks before her death. Bell and Lamon went to a club called Mississippi Moonshine. At some point in the evening the two women separated, but Bell later saw Lamon leaving with two young white men in a pickup truck.
Johnson was charged with one count of first degree murder with special circumstances allegations of rape and sodomy. The prosecution sought the death penalty. At the guilt phase, the jury convicted Johnson of murder and found true the rape special circumstance. At the penalty phase, the jury found life without possibility of parole was the proper sentence, and he was subsequently sentenced accordingly.
1. Exclusion of Evidence of Third Party ...