IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LYNN DEAN JOHNSON, DEFENDANT AND APPELLANT.
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.
P. v. Johnson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
New Forensic Evidence
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.
Verdict & Sentence
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 Culpability
Johnson contends the trial court abused its discretion, and violated his federal constitutional rights, by excluding proffered evidence of third party culpability for Lamon's murder. We find no error.
The prosecution filed a motion to exclude evidence of third party culpability for Lamon's murder. Anticipating the defense theory was going to be that Johnson had consensual sex with Lamon sometime before her murder, but her murderer was another man who had been questioned by police during the original murder investigation. The following facts were detailed in both the prosecution's motion and the defense opposition.
The 1985 Investigation
On May 14, 1985, Orange County police officers picked up Lamon, hysterical, sobbing, and extremely intoxicated, from an apartment complex in Orange. At the police station, she told officers she had been at a bar called Mississippi Moonshine where she met two men and went home with them, and they both raped her. After sleeping for a while, Lamon withdrew her allegations, said she did not want to file a report, and went home with her mother. Hours later, police learned Lamon had attempted suicide by making superficial cuts to her wrists.
After Lamon's murder, Anaheim Police Detective Carl Martin learned about the Mississippi Moonshine bar incident. The following facts came from notes of his investigation. On June 19, 1985, Martin went to the residence in Orange that Lamon had visited on May 14. Tom Rasinski and Fred Lunsford were the tenants; their friend, Michael Rudich, was a frequent overnight visitor.
Rudich answered the door on Martin's first visit. He lied to Martin about his name and the identities of the apartment's occupants, and he denied any knowledge of the May 14 incident. Martin left but soon returned, and Lunsford let him in. Lunsford appeared very nervous. Lunsford said he and Rasinski met Lamon at the Mississippi Moonshine bar on May 14 and she returned to the apartment with them. Lamon and Rasinski engaged in sexual conduct, after which Rasinski kicked Lamon out, calling her a "fat pig." They refused to give Lamon a ride home. Lunsford claimed he did not have a car and did not drive. Lunsford said he threw a glass of water at Lamon because she was crying and screaming. He denied having sexual intercourse with Lamon.
On June 25, 1985, Martin returned to the apartment to speak with Rasinski. Rudich was also at the apartment, but another detective took him outside. Rasinski said he and Lunsford met Lamon at the Mississippi Moonshine bar on May 14 and brought her home with them. Lamon attempted to orally copulate him in the bathroom, and when she came out of the bathroom, Lunsford was "waiting for his turn" and took Lamon into his bedroom. When they came out about 30 minutes later, Lamon asked for a ride home, but Rasinski refused, and she began screaming and making a scene. When she refused to leave, Lunsford pushed her out the front door and threw a glass of water at her. Lunsford later told Rasinski that in the bedroom, "all they had done was screw."
When Martin asked about his whereabouts on Memorial Day weekend (when Lamon was killed), Rasinski initially said he had been away on a trip from May 24 until May 31. Later, when Rudich was asked the same question in Rasinski's presence, Rasinski interrupted indicating he had been confused, his trip had been the following week and on Memorial Day weekend he was in town. Rasinski said he, Lunsford, and Rudich had gone to Angels baseball games on Friday, Saturday, and Sunday, and then to a party at Rudich's parents' house on Sunday. Rasinski believed he had stayed home and watched television on Saturday night.
In Rasinski's presence, Rudich admitted he had earlier lied to police about his identity. He told Martin that Lunsford told him about what happened with Lamon on May 14 several days after the incident. In short, Lunsford and Rasinski had picked up Lamon at a bar, engaged in various sex acts with her, and then threw her out of the apartment. Rudich said nothing about going to Angels games over Memorial Day weekend, and said he and Lunsford had gone to the Mississippi Moonshine bar on the evening of Saturday, May 25, then returned home and stayed there.
After speaking with Rudich and Rasinski, Martin interviewed Lunsford again. The interview occurred at Angels Stadium in the presence of Rudich and Rasinski. Lunsford admitted that on May 14 he had sexual intercourse with Lamon but said she had initiated it. Afterwards he kicked her out of the apartment. Lunsford said he refused to give Lamon a ride home because he did not have a car. Lunsford said that on Saturday, May 25, he attended a baseball game with Rudich and Rasinski. They might have gone to a restaurant afterwards, and then they went home. He thought he and Rudich might have later gone to a bar called Confetti's and Rasinski stayed home. Eventually, Martin told the three men he was investigating the murder of Lamon. The men all looked "'very surprised'" and all said they were willing to take polygraph examinations.
Martin did not contact the men again until February 1986. He met Lunsford and Rasinski at their new apartment in Orange, and they both agreed to take a polygraph examination. Martin's notes about Rasinski's polygraph examination stated the examiner thought he "'showed guilty knowledge of the homicide,'" and was untruthful when answering critical questions about Lamon's death. There were no notes regarding Lunsford's polygraph examination, but there was a note indicating Lunsford refused to take a second polygraph examination. Investigators had no further contact with Rasinski or Lunsford.
Subsequent Defense Investigation
After Johnson was charged with Lamon's murder, his attorneys investigated Lunsford and Rasinski anew.
On October 4, 2004, a defense investigator interviewed Rasinski. Rasinski initially denied being part of any sexual encounters with Lamon on May 14, saying it had been Lunsford and a different roommate who met Lamon and had sex with her. But after reading the police report, Rasinski recalled his own participation. Rasinski said Lunsford engaged in sexual intercourse and other sexual acts with Lamon in the hallway on May 14, including inserting a pool cue and a beer bottle inside her. Rasinski said Lunsford was a construction worker, and owned carpentry tools. Rasinski told the investigator, "'I wouldn't doubt that [Lunsford] had something to do with [Lamon's] murder.'"
On December 28, 2005, defense investigator tried to interview Lunsford, but Lunsford refused to talk to him. But the investigator later received a garbled telephone message from Lunsford's wife in which she appeared to say something like, "'I think he is interested in murdering again.'"
In November 2006, a defense attorney and a defense investigator interviewed Lunsford's brother Mark Lunsford (Mark). Mark said that sometime between 1987 and 1991, another brother, Craig Lunsford (Craig), who was now deceased, told him that Lunsford had once called him and asked for help disposing of a body. Mark said that Craig said that Lunsford said "'things [got] out of hand,'" a girl was killed and the body was in "pretty bad shape." Mark said Craig had inhaled a line of methamphetamine shortly before telling Mark the story. Mark also said he and Lunsford were involved in a dispute over the estate of their deceased mother. Lunsford's uncle told the defense investigator that in 1989, he overheard Craig tell someone that Lunsford had raped and killed a girl.
In February 2007, a defense attorney and a defense investigator interviewed Rudich, who now lived out of the state. Rudich said Lunsford had told him he enjoyed picking up overweight women because it was easier to take advantage of them. He said Lunsford "felt that if he was getting a woman high or drunk, it was their duty to 'put out.'" Rudich retracted his 1985 statement about his whereabouts on Saturday, May 25 and denied ever going to the Mississippi Moonshine bar with Lunsford that evening. Rudich said Lunsford lied when he said he did not drive because Lunsford drove an old white Datsun pickup truck he used in perpetrating a masonry scam. Lunsford would bid a masonry job and get a down payment but never return to complete the work.
In a second interview, Rudich told defense investigators Lunsford told him he had been with Lamon afterthe "'first incident'" and said "'he hurt her.'" Rudich said Lunsford frequently got violent when drunk or using drugs. Lunsford also frequently went out by himself, picked up women, and took them to a cheap rundown motel near his apartment in Orange.
Hearing & Ruling
The court deferred ruling on the prosecution's motion. During trial, the defense indicated it wanted to call Rudich and Lunsford's brother Mark as witnesses to testify as to statements Lunsford allegedly made implicating himself in Lamon's murder. Lunsford invoked his Fifth Amendment rights and refused to testify. The court conducted a hearing on the admissibility of the evidence of the proffered testimony.
Rudich testified that in May 1985, Lunsford said he and Rasinski had brought a woman back to their apartment after a bar closed, drank and did drugs, had sex with her, and things "got pretty kinky . . . ." About two weeks later, Lunsford told Rudich he met the same woman, who Lunsford called "the Mexican," a second time at Mississippi Moonshine, they had sex, and he "hurt" her. Lunsford was sweating, stuttering, and talking rapidly when he talked to Rudich. Rudich got the impression that Lunsford "hurt her pretty good," and he thought she might be dead. Rudich testified this second conversation occurred around Memorial Day weekend, it could have been three to five days before Memorial Day weekend or after--he could not remember. He could not remember where the conversation took place. He could not recall Lunsford's exact words. Rudich said he did not tell police in 1985 about the second conversation because he did not want to get involved, and he was afraid of Lunsford, who was a violent person.
On cross-examination Rudich testified he had felony convictions for money laundering and fraud, and had previously lied to the police about these incidents. He never said anything to police in 1985 about Lunsford saying he had seen "the Mexican" a second time because they never asked him. Rudich never saw the girl. Rudich did not know if the woman Lunsford was talking about was the same one the police had questioned them about. He could not recall what Lunsford really said. Rudich had told defense investigators Lunsford was hyper when he told him about the second encounter because he had been using cocaine. On the stand, Rudich denied having said that but agreed Lunsford was "always on cocaine."
The trial court ruled Rudich's testimony about Lunsford's statements was inadmissible. Rudich's testimony lacked reliability and trustworthiness--it was "all over the map." It was impossible to tell what the alleged statements were, who they were about, or when they were made--Rudich really just was testifying as to impressions he had about what Lunsford meant. "[F]rom [an Evidence Code section] 1230 standpoint, there is no statement."
The court furthermore was concerned that to lay a foundation for the statements, the defense would have to distinguish "between Mississippi Moonshine, the first incident, whether Rudich was talking about that as relates to this conversation with Lunsford, or was it the homicide in and of itself." Because the evidence relating to the Mississippi Moonshine incident was potentially victim character evidence (Evid. Code, § 1103, subd. (c)), and there was "a really factual nightmare and legal nightmare with respect to admissibility," the court also excluded Rudich's testimony under Evidence Code section 352.
The court then considered whether Lunsford's brother Mark could testify. The defense made the following offer of proof: Mark would testify his now deceased brother Craig told him that "[Lunsford said he] had killed a girl and dumped the body somewhere." The court concluded the testimony was inadmissible because while such a statement by Lunsford to Craig would be a declaration against interest, Craig was deceased and his statement to Mark about Lunsford's statement was hearsay.
Due process requires a criminal defendant be afforded a meaningful opportunity to present a complete defense, subject to the limitations imposed by the rules of evidence. (People v. Lucas (1995) 12 Cal.4th 415, 464.) A defendant may present exculpatory evidence of third party culpability if the evidence is "capable of raising a reasonable doubt of defendant's guilt." (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) To be admissible, the third party evidence need not constitute "'substantial proof of a probability'" the third person committed the crime; rather "it need only be capable of raising a reasonable doubt of defendant's guilt." (Ibid.)
This rule does not, however, require admission of any evidence, however remote, of third-party culpability. "The evidence must meet minimum standards of relevance[,]" and is subject to exclusion under Evidence Code section 352. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017.) "[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.) Once a defendant's evidence has been found to raise a reasonable doubt, it may only be excluded if it is more prejudicial than probative. (Id. at p. 829.) Furthermore, there exists no federal constitutional bar to applying the normal rules of evidence, such as Evidence Code section 352 or similar evidentiary rules, to exclude third party culpability evidence. (Hall, supra, 41 Cal.3d at pp. 834-835.)
Johnson offered testimony from Rudich and from Lunsford's brother, Mark, as to allegedly incriminating statements made by Lunsford. He asserts the statements were admissible under the exception for a declaration against interest.
"'Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant's penal interest. The proponent of such evidence must show "that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character."' [Citation.] 'The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.] '[E]ven when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. . . . [¶] . . . We have recognized that, in this context, assessing trustworthiness "'requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.'"' [Citation.] Finally, such statements, even if admissible are nonetheless subject to Evidence Code section 352 under which 'the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption.' [Citation.] [¶] A trial court's decision to admit or exclude evidence is a matter committed to its discretion '"and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (People v. Geier (2007) 41 Cal.4th 555, 584-585, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S.___, ____ [129 S.Ct. 2527, 2532; 174 L.Ed. 314, 321].)
The trial court did not abuse its discretion by concluding Rudich's proffered testimony was inadmissible. Rudich would have testified that Lunsford confided he had met Lamon again sometime after their first encounter and Lunsford said he hurt Lamon. But the trial court could properly conclude as a foundational matter the proffered testimony was vague and completely unreliable. Rudich was uncertain about the actual statement. Rudich conceded he had never mentioned the incident when police interviewed him at the time of Lamon's death. When testifying, he could not remember Lunsford's words; he really just had impressions about what Lunsford had said 20 years ago. Rudich was uncertain as to when Lunsford made the statement. Lamon was killed on Memorial Day weekend. Rudich said the conversation took place sometime around Memorial Day weekend but conceded it could have been several days before. Furthermore, there was no indication as to when Lunsford had his second encounter with Lamon. And importantly, although Rudich said Lunsford was referring to the same woman Lunsford and Rasinski had brought home from the Mississippi Moonshine bar, he was vague as to why he thought that. Rudich had never seen Lamon, and Lunsford only referred to the woman in the conversation as "the Mexican." Rudich conceded on cross-examination he did not know for certain if the woman was the same woman police were asking them about.
Although Johnson does not engage in any specific analysis of the trial court's exclusion of his other proffered witness, Lunsford's brother Mark, we find no abuse of discretion there either. The defense proposed to have Mark testify that sometime between 1987 and 1991, his now deceased brother Craig told him "[Lunsford] had killed a girl and dumped the body somewhere." Craig had just inhaled methamphetamine when he told him the story. At trial, the defense asserted Mark's testimony was admissible as a declaration against interest.
As the trial court noted, the proposed testimony contained multiple levels of hearsay: the statement Lunsford allegedly made to Craig, and Craig's statement to Mark. "[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception. (Evid. Code, §§ 1200, 1201.)" (People v. Arias (1996) 13 Cal.4th 92, 149.) Although Lunsford's statement to Craig might satisfy the declaration against interest hearsay exception, Johnson offers no suggestion as to how Craig's statement to Mark satisfies any hearsay exception.
2. Prior Crimes Evidence: Evidence Code Section 1108
Johnson contends the trial court erroneously admitted evidence of uncharged sex offenses he committed against other young women and girls. In 1983, he molested his girlfriend's 11-year-old daughter; in 1988 he exposed himself to a 17-year-old girl for sexual gratification; and in 1989 he kidnapped and repeatedly sexually assaulted an 11-year-old girl at gunpoint. The evidence was admitted under Evidence Code section 1108, subdivision (a), which makes admissible in a prosecution for a sexual offense, evidence of a defendant's commission of other sexual offenses.
Johnson asserts: (1) because Lamon's murder predates enactment of Evidence Code section 1108, its application violates the constitutional proscription against ex post facto laws; and (2) Evidence Code section 1108 is unconstitutional.
A. Ex Post Facto
Lamon was murdered in 1985. Evidence Code section 1108, applied by the trial court to admit evidence of the uncharged sex offenses, became effective in 1996. It provides in relevant part that in prosecution for a sex offense, evidence of defendant's commission of other sex offenses is not made inadmissible by Evidence Code section 1101. Johnson contends application of Evidence Code section 1108 violated the federal constitution's prohibition on ex post facto laws. We reject his contention.
In People v. Fitch (1997) 55 Cal.App.4th 172 (Fitch), the appellate court rejected identical ex post facto claims with respect to Evidence Code section 1108. Fitch relied on Collins v. Youngblood (1990) 497 U.S. 37 (Collins), for the framework for its analysis stating the ex post facto clause prohibits three categories of statute: "[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." (Fitch, supra, 55 Cal.App.4th at p. 185.) Fitch observed that Collins omitted a fourth category of ex post fact statutes found in "an earlier formulation, which included: '"Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender."' (Collins . . . , supra, 497 U.S. at p. 42.)" (Fitch, supra, 55 Cal.App.4th at p. 185.) Accordingly, Fitch held that "[s]ince Evidence Code section 1108 does not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate the ex post facto clause. [Citations.]" (Fitch, supra, 55 Cal.App.4th at p. 186.)
After Fitch was decided, the United States Supreme Court decided Carmell v. Texas (2000) 529 U.S. 513 (Carmell), upon which Johnson relies. Carmell held an amendment to a Texas statute, which authorized conviction of certain sexual offenses based on the victim's testimony alone, when the previous statute had required corroborating evidence in addition to the victim's testimony, violated the ex post facto clause when applied to an offense committed before the date of the amendment. (Id. at pp. 516, 552.) Carmell made clear the fourth category of statute omitted by Fitch is prohibited by the ex post facto law. (Carmell, supra, 529 U.S. at pp. 521-525.) The Court stated the fourth category addresses the ex post facto clause's concern with fundamental justice: "A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense . . . ." (Id. at p. 532.) Such laws, stated the high court, "subvert the presumption of innocence by . . . [r]educing the quantum of evidence necessary to meet the burden of proof . . . ." (Carmell, supra, 529 U.S. at pp. 532-533.)
Although in view of Carmell, "Fitch's analysis was incomplete," due to the omission of the fourth category, "its conclusion that [Evidence Code] section 1108 did not violate the constitutional prohibition of ex post facto laws remains sound." (People v. Flores (2009) 176 Cal.App.4th 1171, 1177, fn. 6 (Flores).) Carmell restricted the fourth category of ex post facto statute to those "sufficiency of the evidence . . . rules lowering the quantum of evidence required to convict." (Carmell, supra, 529 U.S. at p. 546, italics added.) "We do not mean to say that every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause. Ordinary rules of evidence, for example, do not violate the Clause. [Citation.]" (Id. at p. 533, fn. 23.) Moreover, the Court distinguished between a "sufficiency of the evidence rule" and a rule governing the admissibility of evidence, concluding, the latter do not "affect, let alone subvert, the presumption of innocence. The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant." (Id. at p. 546.)
Here, Evidence Code section 1108 governs the admissibility of evidence--it is not a sufficiency of the evidence rule. It does not run afoul of the prohibition on ex post facto laws because unlike the law at issue in Carmell it does not reduce the quantum of evidence necessary to meet the prosecution's burden of proof. (Carmell, supra, 529 U.S. at pp. 532-533.) Our Supreme Court has made clear Fitch's conclusion remains sound, citing it in People v. Davis (2009) 46 Cal.4th 539, 603, at footnote 6, for the proposition that "[Evidence Code] section 1108 applies to cases tried after its effective date of January 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense occurring before its enactment." (See also Schroeder v. Tilton (9th Cir. 2007) 493 F.3d 1083, 1088 [citing Carmell, Evidence Code section 1108 not ex post facto because it does not affect quantum of evidence sufficient to convict].) And, we note the same conclusion has been reached in cases considering the identical ex post facto challenge to Evidence Code section 1109, a virtually identical statute permitting in domestic violence cases evidence of defendant's commission of other domestic violence. (See Flores, supra, 176 Cal.App.4th at pp. 1176-1181.)
B. Other Constitutional Arguments
Johnson next contends Evidence Code section 1108, allowing admission of uncharged sex offenses violates due process because: (1) it unfairly permits admission of prior sexual offenses to prove a defendant's propensity to commit the charged offense; and (2) a related jury instruction, CALCRIM No. 1191, improperly told the jury it could rely on the propensity evidence to convict even if his criminal disposition had only been proven by a preponderance of the evidence.*fn2 Our Supreme Court has already rejected both these arguments in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) and People v. Reliford (2003) 29 Cal.4th 1007 (Reliford).
In Falsetta, supra, 21 Cal.4th 903, at page 907, our Supreme Court held "[Evidence Code] section 1108 is constitutionally valid" because, although it "represents a deviation from the historical practice of excluding such 'propensity' evidence [citation], the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value . . . ." In Reliford, supra, 29 Cal.4th 1007, the Court found no constitutional error in the pattern jury instruction on Evidence Code section 1108. (Id. at p. 1016.) "Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction." (People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
We are bound by the decisions of the California Supreme Court in Falsetta and Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)*fn3 The court properly admitted evidence of the uncharged sex crimes.
3. CALCRIM NO. 359
At the prosecution's request, the trial court instructed the jury with CALCRIM No. 358 concerning how the jury is to consider evidence of a defendant's out-of-court statements, and CALCRIM No. 359 on corpus delicti, which instructs that a defendant may not be convicted of a crime based solely on his or her out-of-court statements and there must be some other evidence showing the crime was committed. Johnson contends the latter instruction impermissibly lessened the prosecution's burden of proof on the issue of identity.*fn4 We reject his contention.
As given CALCRIM No. 359 [Corpus Delicti: Independent Evidence of a Charged Crime] instructed: "The defendant may not be convicted of any crime, nor can any special circumstance be found to be true, based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him, or to find that a special circumstance is true, if you conclude that other evidence shows that the charged crime was committed or the special circumstance is true. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed or that the special circumstance is true. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statements alone. [¶] You may not convict the defendant, or find that the special circumstance is true, unless the People have proved his guilt, and the existence of the special circumstance, beyond a reasonable doubt."*fn5
Johnson argues the primary issue in this case was identity and his out-of-court statements made to police when interviewed in prison were part of the proof of his identity. He asserts his identity as Lamon's murderer must be proven beyond a reasonable doubt. But isolating the sentence, "The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statement alone," from the rest of CALCRIM No. 359, Johnson argues the instruction improperly reduced the burden of proof on the issue of identity by allowing his identity to be proven based solely on his out-of-court statements.
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We evaluate whether an instruction is misleading by reviewing the jury charge as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).) Instructions are not considered in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.) "'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."' [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]" (Campos, supra, 156 Cal.App.4th at p. 1237.)
CALCRIM No. 359 correctly expresses the corpus delicti rule. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) Under this rule, "every conviction must be supported by some proof of the corpus delicti aside from or in addition to [defendant's extra-judicial] statements, and the jury must be so instructed." (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The corpus delicti is established when it is shown that a crime has been committed by someone, and the rule consists of two elements: (1) the injury or harm; and (2) a criminal agency causing that harm to exist. (People v. Jones (1998) 17 Cal.4th 279, 301; People v. Zapien (1993) 4 Cal.4th 929, 985-986.) The purpose of the corpus delicti rule is to assure that an accused does not admit to a crime that never occurred. The rule is satisfied by a "'slight'" quantum of proof. (People v. Jennings (1991) 53 Cal.3d 334, 368.)
Johnson's argument is premised on the erroneous assumption that identity is part of the corpus delicti--it is not. "Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. [Citations.]" (People v. Cobb (1955) 45 Cal.2d 158, 161; see People v. Kraft (2000) 23 Cal.4th 978, 1057; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6.) Accordingly, the identity of the perpetrator can be proven by a defendant's out-of-court statements alone.
Nor can we agree that CALCRIM No. 359's correct statement of the law that the identity of the perpetrator may be proved by extra-judicial statements alone reduces the prosecution's burden of proof on identity to less than guilt beyond a reasonable doubt. It merely constitutes a statement that the corpus delicti rule does not preclude reliance on the defendant's out-of-court statements to prove identity beyond a reasonable doubt. The court instructed the jury with CALCRIM No. 220, which defines reasonable doubt, informs the jury that it must consider all the evidence, and instructs the jury the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a reasonable doubt. And CALCRIM No. 359 advised the jury it could "not convict the defendant, or find that the special circumstance is true, unless the People have proved his guilt, and the existence of the special circumstance, beyond a reasonable doubt." Reasonable jurors would have understood from the entirety of the charge the prosecution was required to prove identity beyond a reasonable doubt after examination of all the evidence. CALCRIM No. 359 was not misleading, and it did not reduce the prosecution's burden of proof on identity.*fn6
4. Jury Unanimity
The trial court instructed the jury on two theories of first degree murder: (1) premeditation and deliberation and (2) felony murder. It also instructed jurors in accordance with CALCRIM No. 548, "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not need to agree on the same theory." Johnson contends the instruction violated his Sixth Amendment right to a jury trial. We reject his contention.
California Supreme Court cases applying United Supreme Court decisions in Schad v. Arizona (1991) 501 U.S. 624, and Walton v. Arizona (1990) 497 U.S. 639, have repeatedly rejected Johnson's argument "holding that the jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation. [Citations.]" (People v. Nakahara (2003) 30 Cal.4th 705, 712-713 (Nakahara)) Undaunted, Johnson argues more recent decisions of the United States Supreme Court, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Ring v. Arizona (2002) 536 U.S. 584 (Ring), have called that conclusion into doubt.
Nakahara, supra, 30 Cal.4th at pages 712-713, which Johnson does not discuss in his briefs, held juror unanimity as to theory is not required, rejected Johnson's very argument: "We are not persuaded otherwise by Apprendi . . . . There, the United States Supreme Court found a constitutional requirement that any fact that increases the maximum penalty for a crime, other than a prior conviction, must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. [Citation.] We see nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first degree murder. [Citation.]" (See also People v. Hawthorne (2009) 46 Cal.4th 67, 89.) Because we are bound by the decisions of the California Supreme Court, we need not consider Johnson's contention further. (Auto Equity, supra, 57 Cal.2d at p. 455.)
The judgment is affirmed.
Aronson, J., concurring:
I concur in the majority's decision to affirm the judgment, but write separately to express my view the trial court erred in excluding Rudich's testimony that Fred Lunsford admitted he "hurt" the victim around the time of her murder. The trial court explained it rejected Rudich's testimony because his recollection of Lunsford's statement was so vague that from "'[an Evidence Code section] 1230 standpoint, there is no statement.'" (Maj. opn. ante, at p. 12.) The majority accepts this reasoning, characterizing Rudich's description of Lunsford's statements as mere "impressions." (Maj. opn. ante, at p. 15.) In other words, Rudich lacked personal knowledge of the subject matter of his testimony -- the statements he attributed to Lunsford.
Whether Rudich had the requisite knowledge presented a preliminary factual determination for the trial court. The burden is on the proponent of the evidence to support a finding of the witness's personal knowledge. (Evid. Code, § 403, subd. (a)(2).) The substantial evidence rule governs the trial court's determination on whether Johnson met his burden to show Lunsford made the statement as Rudich claimed. (People v. Cudjo (1993) 6 Cal.4th 585, 608 (Cudjo).) Thus, "[t]he trial court is to determine only whether there is evidence sufficient to sustain a finding that the statement was made." (Ibid.)
Here, substantial evidence was presented for a jury to reasonably find that Rudich had personal knowledge that Lunsford made admissions that he assaulted the victim around the time of her murder. Rudich testified at the hearing that Lunsford "said he met somebody at the Mississippi Moonshine and they had sex, and said . . . he hurt her." Rudich explained he explicitly recalled Lunsford used the word "hurt." Rudich's testimony about Lunsford's statements also supported the inference Lunsford referred to the victim and made the statements around the time of her murder. True, Rudich was impeached on these points and was vague at times in recalling a conversation that occurred 23 years earlier. But this was for the jury to sort out because the trial court, contrary to the majority's view, had no discretion to weigh the conflicting evidence in deciding whether defendant met his burden to present sufficient evidence for a jury to find Lunsford made the statement Rudich attributed to him.
The trial court also erred in excluding the evidence under Evidence Code section 352. Rudich's testimony was probative and the only means to connect Lunsford to the victim because Lunsford exercised his privilege against self-incrimination and was therefore unavailable. Rudich's testimony presented no risk of undue prejudice to the prosecution. Merely recounting Lunsford's statements "was not likely 'to arouse the emotions of the jurors' or 'to be used in some manner unrelated to the issue on which it was admissible.'" (Cudjo, supra, 6 Cal.4th at p. 610.)
The exclusion of Rudich's testimony does not require reversal, however. The DNA evidence and Johnson's denial he knew the victim, despite the discovery of his semen in the victim, present compelling evidence of his guilt. Johnson possessed a metal sheet hammer that was consistent with the type of weapon used in the murder. Finally, the evidence established Johnson's disposition to sexually assault young women. In sum, this evidence shows any error was harmless. Consequently, I join in the majority's decision to affirm the judgment.