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Johnson v. Pfeiffer

United States District Court, E.D. California

November 4, 2019

CHRISTIAN PFEIFFER, Warden, Kern Valley State Prison, [1] Respondent.



         Devon Maurice Johnson, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Kern Valley State Prison. Respondent has answered, and Johnson has replied.


         Johnson was charged with second-degree robbery (Count 1), second-degree commercial burglary (Count 2), and being a felon in possession of a firearm (Count 3) in connection with a January 2013 theft at an internet café. The indictment also alleged that, as to Counts 1 and 2, that Johnson was armed with a handgun and that, as to all counts, Johnson had served three prior prison terms. Johnson pled not guilty, denied the enhancement allegations, and proceeded to a jury trial. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Johnson and the evidence presented at trial:

A. The Prosecution's Case-in-Chief
On January 12, 2013, Crystal Lee was working as a clerk at Web-Man, an internet café in Stockton. Around 11:40 p.m., Lee saw a man walk quickly or jog into an office area towards the back of the café. Lee followed the man, and watched him grab approximately $500 from the cash register. Lee asked, “What are you doing?” The man responded by pushing her into an office chair. Frightened, Lee told the man “to do whatever he wanted.” The man left Lee's office. Moments later, Lee saw the man in the café, surrounded by customers. The man broke free and fled, leaving a gun and glove near the door.
During the trial, Lee testified that the robber was wearing a black hoodie, jeans and Nike shoes. The robber also wore a glove on his right hand. The robber's face and hair were covered, but Lee was able to see his forehead. Lee described the robber's complexion as dark brown. Lee, who is five feet and one inch tall, told police that the robber was five feet and eight inches. At trial, however, she estimated that the robber was closer to six feet three inches.
Max Haro was a customer at the internet café. Haro was seated at a computer terminal near the front of the store. While staring at the computer monitor, Haro saw the reflected image of a figure moving quickly towards the office area. Haro turned and saw someone go through the door leading towards the office. He heard a disturbance, and rose from his seat, positioning himself near the entrance/exit door. Haro then saw a masked man emerge from the office area, and run towards the door.
Haro testified that the man was wearing a long beanie, pulled down over his face. Although the man's face was obscured, Haro could see his eyes. Haro also testified that he could also see dark brown dreadlocks sticking out of the man's beanie.
Haro struck the man with a closed fist. The man stumbled or shuffled forward, and a gun fell to the floor from the area around his waist. The man recovered and ran out of the building. Haro picked up the gun barehanded and set it on the counter, on top of a glove that another customer had already placed there. The gun, which was taped around the handle, remained on the counter, untouched, until police arrived.
Craig Lease was another customer at the internet café. Lease saw a man come into the café and run towards the office area. Lease testified that he saw the man make contact with Lee, and then run towards the front door.
Lease testified that he could see the man's face, and that he was “black.” Lease added that he was wearing a hoodie and holding a gun in his right hand. Lease could not see the man's hair.
Lease saw another customer (later identified as Haro) strike the man, who fell forward, losing his grip on the gun. The gun flew out of the man's hand, and came to rest approximately 15 feet away. The man then ran out of the café.
Stockton Police Officer James Padilla responded to the café shortly before midnight. Padilla testified that he recovered the gun and removed several rounds of live ammunition using his bare hands. The gun was a .32 caliber revolver.
Senior Criminalist Bob Cheseldine analyzed the gun for DNA. Cheseldine's analysis revealed one major contributor and two minor contributors. Most of the DNA found on the gun-93% of the sample-belonged to the major contributor. The DNA profile for the major contributor was uploaded into a database, which returned a match to [Johnson].
Cheseldine also examined DNA on the ammunition found in the gun. Cheseldine concluded that there was not enough DNA on the ammunition to include or exclude [Johnson] as a possible contributor.
Cheseldine also examined DNA on the glove found on the floor of the café. The glove contained a mixture from at least three different contributors. The major contributor was female. There was not enough DNA from the two minor contributors to include or exclude [Johnson] as a possible contributor.
At trial, Cheseldine acknowledged that he could not tell when DNA was deposited on an object, or who touched the object last. Furthermore, Cheseldine acknowledged that DNA could be transferred from one person to another person, and then to the object. Nevertheless, Cheseldine opined that the probability that the DNA found on the gun was from another African American person was one in 700 quintillion.
Stockton Police Detective Phirun Var interviewed [Johnson] on November 4, 2013. Var testified that [Johnson] stands between five feet ten inches and six feet tall and is right-handed. Var also testified that, at the time of the interview, [Johnson] wore dreadlocks and “the tip of his hair was . . . lighter than the rest of his hair.” The interview was recorded and a redacted version played for the jury. During the redacted recording, [Johnson] acknowledged that he lived near the café at the time of the robbery. [Johnson] also acknowledged that he had previously committed robberies and had “been caught with guns.” We discuss [Johnson's] statements regarding guns in greater detail below.
Despite these admissions, [Johnson] repeatedly denied having committed the robbery. Even as [Johnson] denied robbing the café, he implied that, had he intended to commit a robbery, he would not have been caught. Specifically, [Johnson] stated that he would have been careful to conceal his face and dreadlocks. According to [Johnson], “First of all, I've done robberies and I never leave my face open.” When asked what he ordinarily uses to cover his face, [Johnson] replied, “Anything I can find. A sheet, a shirt, something, because this is like, these [dreadlocks] is like, real noticeable.” When informed that witnesses had described the robber as having dreadlocks, [Johnson] responded that his dreadlocks were “fire red” at the time of the robbery.
[Johnson] also suggested that he could not have committed the crime because he would not have left his gun behind. When Var described the gun recovered from the crime scene as “hella crappy, ” [Johnson] responded, “I don't care how crappy it looked. As long as it shoots, I'm not leaving it.” When confronted with the results of the DNA analysis, [Johnson] allowed that he might have committed the crime, but forgot having done so, due to his excessive drug use. When asked to explain how his DNA came to be on the gun, [Johnson] hypothesized: “Maybe I coulda touched it. Somebody I let use it. But then, then no, ‘cuz I want my gun back.” When pressed, [Johnson] insisted: “I don't know. It's a good one. But I know, I don't leave guns. I pay too much for them. For real, I don't leave ‘em.” [Johnson] was not able to explain how his DNA came to be on the gun.
B. [Johnson's] Motion in Limine
Out of the presence of the jury, [Johnson] moved to exclude portions of the recorded interview, including a conversation with Var concerning his prior possession of revolvers. The transcript of the unredacted recording includes the following exchange:
“[VAR]: Do you own any guns?
“[JOHNSON]: Do I have any guns?
“[VAR]: Yeah.
“[JOHNSON]: No. I've been caught with guns. That's my M.O. I get caught with guns.
“[VAR]: Yeah, I read a little bit-
“[JOHNSON]: Yeah.
“[VAR]: A little bit about you. So, what kind of guns do you usually carry? Or do you usually get caught with?
“[JOHNSON]: Revolvers.
“[VAR]: Revolvers?
“[JOHNSON]: Yeah.
“[VAR]: Okay. What was the last revolver you had?
“[JOHNSON]: A .38? No, uh, .357.
“[VAR]: A .357?
“[JOHNSON]: I got caught with ...

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