Superior Court of Lake County, No. CR4797, Robert L. Crone, Jr., Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Ronald S. Matthias, Assistant Attorney General, Donna M. Provenzano and Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Chin, J., with Cantil-Sakauye, C. J., Corrigan, Baxter[*], and Grimes, JJ.[**], concurring. Concurring and Dissenting Opinion by Wedegar, J., with Liu, J., concurring.
[343 P.3d 813] [184 Cal.Rptr.3d 618]
A jury convicted defendant Jerrold Elwin Johnson of the first degree murder of Ellen Salling with the special circumstances of robbery murder, burglary murder, and carjacking murder, as well as first degree burglary, first degree robbery, and carjacking. (Pen. Code, § § 187, 190.2, subd. (a)(17)(A), (G), (L), 211, 215, subd. (a), 459.)  The jury also found that defendant personally used a deadly and dangerous weapon, and the victim was 65 years old or older. (§ 667.9, subd. (a), former § 12022, subd. (b)(1).) Defendant admitted that he had suffered one prior serious or violent felony conviction and had served one prior prison term. After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. The Facts
A. Guilt Phase
On December 18, 1998, the police tried to stop the van defendant was driving to arrest him for violating parole. Rather than stop, he led them on a high-speed chase, crashed his van, and escaped on foot. The next morning, he entered 76-year-old Ellen Salling's home, beat her to death, and stole her purse, jewelry, and car. He went to a casino with his girlfriend, used the victim's credit card to make purchases, and tried to sell the jewelry. Later, while driving Salling's car, he again led police on a high-speed chase, which ended when he crashed this car and fled on foot. But this time, he was eventually captured.
At trial, defendant did not dispute that he killed Salling and stole her property, but he did dispute that he formed the intent to steal before he killed her.
[184 Cal.Rptr.3d 619] 2. The Evidence
In December 1998, defendant was living with Starlene Parenteau in Clearlake Oaks in Lake County.  They shared the master bedroom. Midday on December 18, defendant was working on a car at a friend's house in Clearlake Oaks. He was wearing steel-toed boots, a corduroy shirt, and a plaid jacket. [343 P.3d 814] After noon, defendant left in his van to retrieve a tool and did not return.
Later that afternoon, Lake County Deputy Sheriff Mike Morshed was on patrol in a marked patrol car in the Clearlake Oaks area. He had been informed that defendant had violated parole. He observed defendant driving a van and tried to stop him to arrest him for violating parole. When defendant did not stop, Deputy Morshed turned on his lights and siren, and a high-speed chase ensued. The chase ended when defendant's van hit a tree and came to a stop in thick vegetation off a dirt road. Defendant abandoned the van and fled on foot. He escaped capture despite a search involving at least 20 law enforcement personnel and a helicopter.
Ellen Salling, 76 years old, lived alone in the Kono Tayee area of Lucerne, about five miles from where defendant abandoned his van. Defendant was familiar with the area, as he had had a paper route there the year before, and Salling was one of his customers. Salling normally kept her car, a red 1999 Mercury Sable, in her garage, accessible from the main house through a breezeway. Salling's friend and neighbor, William Ellis, and her daughter testified that she normally kept her purse on a counter in the kitchen and her car keys either in the purse, on the counter, or in a dish on the counter.
Ellis visited Salling the evening of December 18; they planned to go to a party together the next day. Around 7:00 a.m. the morning of December 19, another neighbor saw Salling walking near her home. Between 8:00 and 8:30 a.m., that same morning, a different neighbor observed a man in a plaid jacket drive Salling's car away from the area. A short time later, Ellis went to Salling's home. When it appeared she was not home and her car was not in the garage, he assumed she had gone shopping and left.
Ellis returned around 5:20 p.m. that afternoon and observed that Salling's car was still missing. Concerned, he entered her house through the garage,
using his key. There was cookie dough and a mixer on the kitchen counter, indicating Salling had been baking cookies for Christmas. Then he discovered Salling's body, facedown and surrounded by blood, near the front entryway. Her glasses were on the floor nearby. He called 911.
The evidence showed that Salling had been beaten to death. Her assailant had used a tree limb that came from outside the house and was found broken into pieces near the body, the leg of an ottoman, and boots. The limb " had some wood decay fungi in it," which might explain why it had broken. Although the tree limb had no blood on it, a piece of raw wood found near the body did. Bloody boot prints were found on the victim's back. Blood was found throughout the house, including blood smears on a kitchen counter. Various drawers had been opened and ransacked. Salling's car, her purse, and several pieces of her jewelry, worth over $13,000, were missing. There was no evidence of a forced entry.
Starlene Parenteau testified that early in the morning of December 19, law enforcement agents came to her home looking for defendant. He was not there. [184 Cal.Rptr.3d 620] Shortly after midnight on December 20, she came home and found a bracelet, a brooch, and a gold necklace on the kitchen table. Some of these items were later identified as having belonged to Salling.
Around 3:00 or 3:30 a.m. that same morning, defendant called Parenteau. This was his first contact with her since he left on December 18 to work on the car. He asked her to meet him at a creek behind her house because, he said, his parole officer was looking for him. He did not want to go home out of concern that he might be found. Parenteau met him as he asked. He was wearing new clothes and shoes and was driving Salling's red Mercury. He told her he had bought the clothes at a Walmart store and gave her the receipt for the purchases. He told her he had borrowed the car from some friends and was " hiding from the cops."
Defendant and Parenteau went to Cobb Mountain, then spent the night of December 20 to 21 at a motel in Middletown. The man who checked them in testified the car they were driving resembled a photograph of Salling's car. Defendant told Parenteau he had left behind the jewelry she had found on the table. He gave her three rings which were later identified as having belonged to Salling. [343 P.3d 815] He told her he had gotten the jewelry from the mother of someone who owed him $ 300.
Defendant and Parenteau went to a casino, then to other places, where defendant attempted, unsuccessfully, to sell the jewelry for cash and methamphetamine. At some point, they went to the home of Shiree Hardman and Jeff Biddle, where defendant tried to sell them some rings, and they smoked some
methamphetamine. At trial, Hardman said the car they were driving resembled a photograph of Salling's car.
Defendant gave Biddle a piece of paper that Hardman later gave to the police. On the paper was written Salling's name and personal information and the notation, " I approve 250.00." Parenteau testified that defendant wrote the note. A questioned documents examiner who compared the note to defendant's known handwriting testified that defendant " probably" wrote it. Defendant or Parenteau told Hardman that they had gone to a casino and would go again that night. Defendant offered to pay Hardman and Biddle $ 50 to verify a credit card if someone called asking for verification. Hardman declined to do so. Either Hardman or Parenteau also gave defendant a yellow piece of paper to write on.
During this time, defendant purchased some gasoline using Salling's credit card. Eventually, defendant and Parenteau drove back to Clearlake Oaks, where defendant dropped her off near their home.
In the early morning hours of December 21, Lake County Deputy Sheriff Robert Zehrung, while on patrol, observed Salling's red Mercury in the Clearlake Oaks area. The driver matched the description of the suspect in Salling's killing, so Deputy Zehrung tried to stop the car. Another high-speed chase ensued; the chase reached speeds as high as 120 miles per hour and involved other law enforcement vehicles. Around 3:50 a.m., Deputy Zehrung observed the Mercury " veer off the right shoulder of the road, strike an embankment, and come to a stop." He called for backup assistance, then determined that the suspect had left the scene. A massive search followed. Around 8:50 a.m. that morning, defendant, suffering from hypothermia, was captured. Deputy Zehrung identified him as the driver he had pursued.
When defendant was captured, officers found a folded yellow piece of paper resembling the paper he had obtained at Biddle and Hardman's residence. On it [184 Cal.Rptr.3d 621] was written a date, " 12-21-98," and this message: " I Ellen Salling give Jerry Johnson my nephew permission to use my visa for $ 250.00 if any questions you can call me at 995 1608. I am bedridden and unable to do it myself." Then followed the name Ellen Salling and Salling's driver's license number. Hardman testified that the telephone number in the message was hers and Biddle's. The documents examiner testified that the handwriting was probably defendant's and was not Parenteau's, Hardman's, or Biddle's.
The Mercury contained bloodstains and defendant's fingerprints. A local resident later found Salling's purse and parts of the ottoman that had been near her body on a hillside overlooking Clear Lake. A group of high school students assisting in the search found other parts of the ottoman nearby.
During a search of defendant's home pursuant to a search warrant, the police found some of Salling's jewelry and one of her credit cards in the master bedroom. They also seized a bloody corduroy shirt and bloody pants from the same bedroom. Parenteau testified that defendant was wearing the shirt when he left her house on December 18. A criminalist testified that the weave pattern of the shirt's fabric matched a pattern left by some blood found on a wall near Salling's body. Deoxyribonucleic acid (DNA) testing and other evidence showed that Salling was almost certainly the source of the blood on the shirt and pants, on the piece of raw wood found near her body, in the Mercury, and on parts of the ottoman.
Defendant cross-examined prosecution witnesses, but he did not present any evidence of his own.
B. Penalty Phase
1. Prosecution Evidence
Defendant was convicted of burglary in Arizona in 1981 and of the voluntary manslaughter [343 P.3d 816] of Jennifer Von Seggern in 1993 in Sonoma County.
The prosecution presented evidence that in 1988, defendant assaulted and threatened to kill Pamela Braden, his then girlfriend, causing multiple injuries.
The prosecution also presented evidence of the facts underlying defendant's manslaughter conviction. In 1992, defendant and Von Seggern lived together in a trailer park, and then Von Seggern moved into an apartment. She disappeared in October 1992. Her decomposed body, wrapped in a sleeping bag and bound, was found in an isolated area in Sonoma County on January 12, 1993. The pathologist who performed the autopsy could not determine the cause of death due to the decomposed state of the body. Among the evidence connecting defendant to the crime were his incriminating statements and evidence that after the victim disappeared, he sold her car (which contained bloodstains) and forged her name on documents to do so.
In early December 1998, Margaret Johnson, defendant's step-grandmother, who had a heart problem, died suddenly, due to ischemic heart disease. The prosecution presented evidence that after Johnson died, defendant set fire to her mobilehome, badly burning the body. After Johnson's death, some of her property was found in defendant's possession; he also used one of her credit cards. He later admitted to the police that he had burglarized Johnson's home but expressed shock that the police wanted him for her murder.
Henni Ray, Salling's daughter, testified about Salling and the impact her death had on her family. Von Seggern's father testified about Von Seggern and the impact of her death.
2. Defense Evidence
Defendant's stepfather, Bryant Johnson, testified about defendant and his good [184 Cal.Rptr.3d 622] qualities. Robert Fogelstrom, a Lake County correctional officer, testified that defendant had been a " model inmate" in jail. Mildred Mallory, who held church services in the Lake County Jail, testified that defendant had attended her services regularly and was always pleasant and never threatening. She said, " He accepted Christ as his savior. And I know when you become a Christian, you have a new nature, I know that."
Defendant testified. His grandmother, mother, and stepfather had raised him. He said he was addicted to methamphetamine, which he began using in high school.
Regarding his Arizona burglary conviction, he said that he and some friends had shoplifted beer and other items. He admitted grabbing Pamela Braden but denied " punch[ing] her like she said I did." Regarding Von Seggern's death, he testified that she was " slamming dope," they " got into a hassle," and he knocked her down. " She hit a table, and she stopped breathing. ... I panicked. I proceeded to ... put her in a sleeping bag. I tied her up, put her in a car, and I took her out, and I dumped her. It was callous. I wish I could take it back." He admitted burglarizing Margaret Johnson's home, taking her property, and using her credit card, but he denied seeing her when he was there and denied setting fire to her home. At the time, he " had been up straight solid" on methamphetamine, meaning he had not slept.
Defendant also testified about the crime of this case. He admitted killing Salling. He said he had been using methamphetamine heavily and continuously for several days before he did so and had gotten little sleep, which made him " really edgy" and caused him to " blow up at the slightest little thing." He knocked on Salling's door, holding a tree limb that he was using as a walking stick. He only intended to use her telephone. He asked to use her telephone and she invited him in. Inside, because he looked like a " mess," she told him to " get out of my house." He started " violently shaking, trembling, uncontrollable," and he " attacked her." He could not remember the details of the killing. After killing Salling, he " panicked," went through her drawers, and stole her property. He decided to steal her property only after he killed her. He still had nightmares about what he did to her, and he went to church " quite often" to pray for forgiveness.
[343 P.3d 817] Dr. Raymond Deutsch testified about methamphetamine and its effects on those addicted to it. In his opinion, ...