Superior Court of Riverside County, No. CR66248, Gordon R. Burkhart, Judge.
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Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold A. Erickson, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Liu, Cué llar, and Kruger, JJ., concurring.
[190 Cal.Rptr.3d 546] [353 P.3d 274] CANTIL-SAKAUYE,
A jury found Lumord Johnson, defendant, guilty of the first degree murder of Martin Campos by personal use of a firearm (count 1). (Pen. Code, § § 187, subd. (a), 12022, subd. (a)(1), 12022.5, subd. (a).)  The jury also found defendant guilty of the second [353 P.3d 275] degree murder of Camerina Lopez by personal use of a firearm (count 2). (§ § 187, subd. (a), 189, 12022.5, subd. (a).) The jury further found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), and that defendant committed Campos's murder while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)), and a kidnapping and kidnapping for robbery (§ 190.2, subd. (a)(17)(B)). The jury additionally found true that defendant was previously convicted of a serious or violent felony, manslaughter. (§ § 667, subds. (c), (e), 1170.12, subd. (c)); see § 667, subd. (a).)  After [190 Cal.Rptr.3d 547] the penalty phase, the jury was unable to reach a verdict on penalty. The trial court impaneled a new jury, which fixed the penalty at death after a second penalty trial. The court sentenced defendant to death on both murder counts and stayed execution of the prior conviction and firearms enhancements by stipulation of the parties.
This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death as to the Lopez murder because death is not an authorized sentence for second degree murder. We also set aside the kidnap-murder special-circumstance finding due to instructional error, but we affirm the judgment in all other aspects.
I. Facts and Proceedings
A. Guilt Phase
1. The killing of Camerina Lopez
a. Prosecution's case
At the time of her death, Camerina " Candy" Lopez had been dating Jose Alvarez. Lopez knew defendant, whose nickname was " Lamar," from the Casa Blanca neighborhood in Riverside. She lived a few houses away from
the residence of Valerie Williams, an elderly woman whose live-in caretaker, Deborah Galloway, was defendant's aunt. Defendant visited his aunt often.
On June 25, 1994, Alvarez drove past Williams's house and saw defendant standing outside it. According to Alvarez, defendant expressed displeasure at him driving in the area and told him to " keep on going straight." Alvarez angrily exchanged profanities with defendant through the open driver's side window. Defendant told Alvarez to get out of the car, but Alvarez drove home.
About half an hour later, Alvarez called Lopez, told her what happened, and described defendant. Subsequently, Alvarez picked up Lopez from her home, and they went to the store and the park.
A few hours after that, as Alvarez drove Lopez home, he saw defendant on the porch of Williams's house again and pointed him out to Lopez. Lopez asked Alvarez to stop. Lopez opened her passenger door and tried to talk to defendant. Alvarez got out and walked around the car. With his hands open, Alvarez said, " What's up?"
In response, defendant grabbed a shotgun from the porch and ran toward Alvarez. Defendant then struck him on the side of the head with the butt of the shotgun, which caused a bleeding laceration. As the men struggled over the gun, Lopez exited the car. Alvarez told her to get back in the car, but she approached and stood next to Alvarez, who was now facing defendant. Defendant had one hand on the handle of the shotgun and the other hand on its barrel, which was slightly raised and positioned across his chest.
Defendant then moved the gun very quickly in front of him. Alvarez looked at Lopez and tried to push her away as she stepped toward defendant. Alvarez heard a gunshot and saw Lopez drop onto the street. Defendant fled towards Williams's house. As she lay in the street bleeding, Lopez cried for help and said, " He shot me."
Defendant's aunt, Galloway, and his friend, Todd Brightmon, witnessed the shooting and gave a similar account. It [190 Cal.Rptr.3d 548] appeared to both [353 P.3d 276] of them that Lopez had positioned herself between defendant and Alvarez and was trying to separate them when she was shot. Galloway heard defendant yell out, " Todd" shortly after the shooting and did not see defendant again.
A bystander flagged down a California Highway Patrol officer, who responded to the shooting scene. As Lopez lay on the ground, bleeding and apparently in great pain, Lopez said " Lamar" or " Lamar Johnson" shot her, described defendant, and indicated that defendant lived in or frequented Williams's house.
Lopez was transported to Riverside Community Hospital. At the hospital, she told another officer that she and Alvarez were standing next to the car when Lamar approached them with a shotgun and started an argument with Alvarez. According to Lopez, when Lamar pointed the shotgun at Alvarez, she stepped in between them to prevent Lamar from shooting him, and Lamar shot once. Lopez died in surgery that night.
Officers searched the Williams house but did not find defendant. Defendant's aunt told an officer that defendant had run out the back door of the house. In the backyard, officers found a 12-gauge Winchester shotgun lying on the dirt. The shotgun had one expended shell inside, and the magazine contained three additional live rounds.
Dr. Joseph Choi, the forensic pathologist who conducted an autopsy on Lopez, determined that she had died from a single shotgun wound to her chest. Shotgun wad and hundreds of shotgun pellets were found inside Lopez's chest and abdomen. The pellets penetrated Lopez's diaphragm, damaging the liver and perforating the vena cava and right kidney. Because of the presence of unburned gunpowder, the appearance of the wound, the presence of wadding inside the wound, the absence of individual pellet holes, and the absence of soot, Dr. Choi concluded the gun was fired at relatively close range, between six inches and two feet away.
The prosecution's firearms expert determined that the shot pellets and wadding removed from Lopez's body were consistent with those inside the unexpended shells found in the shotgun recovered from Williams's backyard. He also determined that the force required to pull the trigger on that shotgun was normal and not excessively heavy or light for a typical shotgun.
b. Defense case
Defendant's friend, Todd Brightmon, described the events leading to the shooting of Lopez, giving testimony mostly consistent with the accounts given by Alvarez. He believed that the shooting was an accident. Brightmon admitted, however, that he had initially told the police that he was not at the scene of the Lopez killing because he did not want to become involved.
2. The killing of Martin Campos
a. Prosecution's case
Oscar Ross is the uncle of defendant's wife and a cousin of Brightmon.  Ross owned a large parcel of property cluttered with junk and several trailers in Riverside County. Because of a prior shooting incident, Ross used a wheelchair. His caretaker, Margie Escalera, lived in a nearby trailer.
[190 Cal.Rptr.3d 549] Ross had been friends with Martin Campos and frequently purchased cocaine and marijuana from him. Ross would then resell the cocaine to other sellers. At one point, Ross suspected that Campos had arranged a robbery in which four or five Spanish-speaking men accosted Ross and Escalera at gunpoint, taking approximately $ 4,500 in cash, a few pounds of marijuana, and some household items.
Ross did not confront Campos with his suspicions, but instead formulated a plan with defendant, who remained at large after the Lopez shooting, and Brightmon to steal cocaine from Campos. Ross planned to offer Campos $ 22,500 for a kilo of cocaine; upon delivery, he would confront Campos about [353 P.3d 277] the prior robbery and, using defendant and Brightmon to intimidate him, take the cocaine without paying for it. Ross claimed he did not intend to harm or kill Campos.
Ross contacted Campos and arranged for the delivery. The night before, defendant and Brightmon joined Ross and Escalera for dinner. That evening, defendant said that killing someone " comes easy."
The following morning, on November 11, 1995, defendant and Brightmon waited at Ross's property. Campos had purchased the kilo of cocaine from Jose Garcia, and Garcia drove him to Ross's property with the cocaine concealed inside the trunk of his white Nissan.
When Campos and Garcia arrived, Ross was in the yard. To ease any suspicion, defendant and Brightmon pretended to rake the yard. Garcia parked his car, and Campos got out to speak with Ross near a U-Haul truck. Garcia got out of his car and approached the others.
Ross asked to see the cocaine, and Campos told Garcia to get it. As Garcia walked toward his car, Ross was about to tell Campos " what was getting
ready to go down" when defendant pulled out a handgun and pointed it at Campos, who was seated on the bumper of the U-Haul.
Garcia saw what was happening and ran toward the gate. But Brightmon chased after and tackled him, dragging him back to the U-Haul truck. Ross, defendant, and Brightmon told Campos and Garcia to get inside the U-Haul. Campos refused, but was forced inside. Brightmon struck Garcia in the face, causing him to fall inside as well.
Campos jumped out of the U-Haul truck and ran, with defendant and Brightmon giving chase. Defendant caught up with Campos and began struggling with him while Brightmon stood nearby. Ross saw Campos either break loose from defendant or be thrown to the ground, at which point defendant shot Campos with the handgun. Ross's caretaker, Escalera, also saw the shooting from her trailer window.
Garcia heard the shot and jumped out of the U-Haul truck into a nearby trash container. He briefly saw Campos slouched over with defendant standing about 10 feet in front of him. Campos said, " No, man. No, man," and fell to the ground. Garcia jumped the fence and fled Ross's property. Campos tried to crawl on his stomach toward Garcia's car while defendant continued to stand over him with the handgun. Ross, defendant, and Brightmon searched Garcia's car for the cocaine, but could not find it. Meanwhile, Campos lay on the ground, still breathing, and looking at Ross.
Ross believed that defendant and Brightmon placed Campos, while still alive, in the trunk of Garcia's car and closed the lid. Escalera, however, said that some unknown African-American men later arrived and lifted Campos into the trunk of a white car, and that the same men pushed [190 Cal.Rptr.3d 550] that white car off Ross's property with another vehicle.
After Campos was placed in the trunk, defendant ran toward the front gate, leaving Brightmon and Ross behind. Defendant encountered a resident of Ross's property, Ronnie Raynold Moore, who had heard the gunshot and was trying to drive off the property with his son. Defendant approached Moore's car with the gun pointed downward and said, " Don't go nowhere." Defendant got in the passenger seat with his gun on his lap pointed toward Moore and told Moore to drive him off the property. Defendant directed Moore to drive around for 30 to 60 minutes. When defendant attempted to share his thoughts, Moore told him he did not want to hear anything. When defendant eventually told Moore to stop, he apologized, gave him $ 30, and left Moore's car.
Ross drove Escalera and Brightmon out of the yard. He dropped Brightmon off and spent the night with Escalera at a cousin's home.
After fleeing Ross's property, Garcia went to Campos's home and met his brother, Raul Campos. They searched for Campos and eventually found Garcia's car about a mile away from Ross's property. They drove it to Garcia's home and returned to Campos's home where Raul called the police. Raul did not tell the police anything about the cocaine.
Deputy Sheriff Michael Angeli, Garcia, and Raul investigated Ross's property. Deputy [353 P.3d 278] Angeli found fresh tire tracks left by a small car leading away from a locked gate. He also found drag marks with coagulated blood, blood spatter in the dirt near Ross's Cadillac, and blood at other adjacent locations. But Deputy Angeli found no dead or injured person on the property.
The next morning, Garcia opened the trunk of his car and discovered Campos's dead body. He did not want to be blamed for Campos's death so he drove away from his home and dumped the body off the side of the road onto an embankment. A passerby eventually discovered the body and contacted the sheriff's department.
The forensic pathologist who performed an autopsy on Campos determined that he had died from a single gunshot wound that entered the right upper chest near the armpit. The bullet had struck and broken the fifth rib, then fragmented, perforated the right lung and heart, and passed between the back of the fifth and sixth left ribs. The pathologist believed Campos could have survived a minute or two before blood loss and aspiration of blood caused his death.
b. Defense case
Defendant presented an alibi defense, claiming that he was in Oklahoma at the time of the Campos murder.
Defendant's cousin, Francisco Trotter, and Trotter's girlfriend, Roberta McConnell, lived in Oklahoma. Between January and November of 1995, Trotter often socialized with defendant in Tulsa. Trotter and McConnell testified that defendant was at Trotter's apartment on the morning of November 11, 1995, the day Campos was killed. The day was memorable for Trotter and McConnell because it was Veterans Day, and they went to a cemetery to place a flag on Trotter's father's grave.
Brightmon testified and described the events leading to Campos's killing. In his version of events, defendant was not involved. Instead, Brightmon testified that Ross had asked Brightmon to stay and monitor the drug transaction with Campos as protection and gave him a revolver. After Garcia
and Campos arrived, Ross and Campos spoke to each other in front [190 Cal.Rptr.3d 551] of the car for a few minutes, and Brightmon noticed a truck driving into the area. Suddenly, Ross said something about a " jack" and, because Brightmon saw a group of Hispanic men running toward him, he took out the gun. Campos and Brightmon briefly struggled, and they both fell, causing the gun to fire, hitting Campos. Ross told Brightmon to help him " clean up this shit," or he would be shot too. According to Brightmon, Ross told him to blame the shooting on defendant because Ross did not like him. Brightmon claimed he was scared of Ross because Ross had money to have people killed.
During his testimony, Brightmon claimed he lied in his prior police statements, in which he blamed the shooting on defendant, in order to protect himself. When he and defendant were in custody for the present offenses, Brightmon sent a letter to defendant's attorney in which he offered to testify that he was the person who shot Campos.
B. Penalty Phase
1. Prosecution's case in aggravation
a. Victim impact evidence
Camerina Lopez was 34 years old when she was killed. Lopez's mother, Socorro Roman described the loss, pain, and grief the family suffered as a result of her daughter's untimely death.
Martin Campos was 33 years old when he was killed. Gladys Felipe, the mother of Campos's children, testified about Campos's relationship with her and the children, family activities, and their future plans. Campos had always been the center of family gatherings, and his death left a huge void at family events.
b. Prior aggravating conduct The killing of Norbert O. Estrada
In March 1983, 25-year-old Norbert O. Estrada went to a market in Riverside. Defendant approached Estrada and offered to sell him marijuana. Defendant and Estrada began to argue. When Estrada took a combative stance, suggesting he was prepared to fight, defendant left. Defendant later returned. [353 P.3d 279] As Estrada stood up, defendant pulled a pistol from his waistband and fired three to five shots at Estrada, killing him. Estrada had been unarmed. Defendant then fled. Defendant turned himself in to the police a few days after the shooting. He admitted that he had been involved in the
incident, but asserted it was an accident and self-defense. Police did not notice any injuries on defendant. Defendant was convicted of voluntary manslaughter.
The shooting of Nigel Hider
In February 1989, Nigel Hider, an active gang member in the Gardena Payback Crips, was standing in front of a house in Riverside when a truck pulled up and someone inside the vehicle started firing at him. Hider was initially uncooperative with police and reluctant to identify the shooter, but eventually told the detective that defendant shot him. Angela McCurdy was with Hider when he was shot, and, in 2000, she told an investigator that she had seen a muzzle flash from a car fired by a Black male with a bald head, but she could not say for certain whether the shooter was defendant.
At the penalty phase retrial, however, Hider testified that he never said defendant shot him and that he had identified the shooter as a White person. In her testimony, McCurdy denied seeing the shooting or telling the contrary to an investigator.
The prosecution also presented evidence that, approximately one month before Hider was shot, defendant bragged to an [190 Cal.Rptr.3d 552] officer that he had single-handedly expelled the Gardena Payback Crips gang from the Casa Blanca neighborhood.
Motel shooting and assault
Anita Smith testified that in January 1992 she was staying at a Riverside hotel with her husband, Earl Smith, and his friend, Eric Dawson. During the stay, Earl Smith argued with defendant's friend, Reginald Robinson, and they threatened to shoot each other. Defendant was not involved in the argument, but when Anita Smith was in the bathroom, someone shot Dawson in the elbow with a shotgun. She did not see who shot Dawson.
Afterward, Anita Smith went down to the parking lot where she saw defendant's vehicle starting to leave and yelled out that she had the vehicle's license plate number. According to her testimony, Robinson got out of the vehicle and pointed a shotgun at her. Defendant also got out of the vehicle and told Robinson not to shoot her, but defendant slapped Smith hard across the face after Robinson put the gun down. Robinson and defendant then drove away.
Defendant's wife, Tina Johnson, testified that she had an affair with Jarah Smith while defendant was in jail awaiting trial on the present charges.
Defendant found out about the affair and called his wife saying that he would blow up the school where she worked if she did not stop seeing Smith.
Defendant obtained the assistance of third parties to set up several calls, including five to seven calls to Smith. Smith testified that defendant in these calls said that he knew where Smith lived, and, on one occasion, said he could " have something done" to him.
Conduct while incarcerated
In March 1986, while defendant was serving his sentence for the manslaughter of Estrada, a correctional officer found two shanks in the single-man cell occupied by defendant. In August 1986, another correctional officer saw a shank fall out of defendant's pocket when he was playing basketball. The shank was a round piece of plastic tapered to a point and capable of inflicting a stab wound.
As additional aggravating evidence, the prosecutor presented testimony concerning defendant's assaults against six other inmates while housed in San Quentin State Prison; California State Prison, Corcoran; and Riverside County jail.
2. Defense case in mitigation
a. Family background
Forensic Psychologist Gretchen White described three aspects of defendant's childhood that she believed had a very significant [353 P.3d 280] effect on him: family instability, the lack of a real father, and physical and emotional violence in the home. According to Dr. White, by the time he was six years old, defendant had lived with three different men and had never met his real father. Dr. White explained that the family lived in at least 17 different places throughout his childhood and that defendant attended four different elementary schools and four different middle schools. Dr. White specifically believed defendant's abusive childhood caused him to overperceive threats and overreact.
Defendant's mother, Joe Ann Johnson, testified that defendant's father was Leroy Brown. She and Brown never married, and Brown never became a part of defendant's life. When defendant was six or seven years old, Joe Ann moved in with James Johnson. Joe Ann eventually married James and gave defendant his last [190 Cal.Rptr.3d 553] name. James was a father figure for whom defendant appeared to have affection. But James was an alcoholic and abusive when he drank. James was physically and mentally abusive to Joe Ann and the
children, especially defendant's three sisters. Defendant sometimes tried to intervene, but on some of those occasions, James would hit defendant.
When defendant was 15 or 16 years old, Joe Ann ended her marriage. After Joe Ann hurt her back and could no longer work, defendant dropped out of high school and took a job to support the family. Defendant did not get into trouble until he was convicted of voluntary manslaughter in 1983. After defendant left prison, he began dating Tina and married her five or six years later in 1992.
b. Defendant's good character
Various relatives and friends testified that defendant and Tina had a strong, wonderful, and happy marriage, that he was a loving husband and father who always provided for his family, and that he had good relationships with other relatives and other children. They claimed defendant was a good father and never violent or abusive with his wife or children. Tina and the children visited defendant two or three times a week while he was in custody. Defendant continued to take an interest in and advise his children and help them with schooling. Several of defendant's cellmates at Riverside County jail between 1997 and the 2001 penalty phase retrial testified that defendant was a good cellmate, friendly and polite, and had good rapport with jail staff.
c. Institutional history
In order to mitigate defendant's violent conduct during his prior incarcerations, defendant presented testimony concerning his placement in an adult prison and the conditions in that facility.
The original prosecutor in the Estrada manslaughter case testified that, because defendant was 18 years old at the time of his sentencing, defendant was eligible for placement in the former California Youth Authority (CYA), which focused on rehabilitation rather than punishment. But the trial court refused, instead housing him as an adult in the former Department of ...