Many of defendant's claims in this appeal relate to the consequences of his disruptive behavior during the proceedings. One such consequence was his absence from the trial. As described in detail below, defendant's conduct conveyed a disregard for courtroom norms as persistent as it was severe. Beginning with his first trial on these charges, which ended in a hung jury, defendant unleashed profanity-laced tirades and accusations of racism against a number of different judges. He also expressed his dissatisfaction with his attorney, Steven K. Hauser, by repeatedly spitting on him and threatening to kill him and his family. Based on his own observations of defendant's behavior and reports of defendant's behavior in prior proceedings, Judge Jack W. Morgan ordered defendant
When proceedings resumed, so did defendant's disruptive behavior. Once again, defendant interrupted the court, spouted profanity, and spit on Hauser. Then, as the court, counsel, and defendant convened in the jury assembly room with the venire for the retrial, defendant suddenly attacked Hauser, striking him on the head and knocking him out of his chair. Defendant could not be controlled with the stun belt and was subdued only with the assistance of several deputy sheriffs. After dismissing the venire, the trial court barred defendant from the courtroom for the rest of the proceedings. Defendant declined to listen to the proceedings from his lockup cell using a speaker. When defendant returned to the courtroom for sentencing, defendant taunted and threatened the court and the attorneys: "What you gon' do when I get out? [¶] You and I both all know I'm getting out. [¶] All you lawyers."
At various points, the judges presiding over the proceedings expressed concern that defendant sought to inject error into the trial through his disruptive behavior. Not surprisingly, defendant now alleges error arising
With respect to defendant's other claims, we find the trial court either did not err or did not cause prejudice to defendant. So we affirm the judgment in its entirety.
I.
The Los Angeles County District Attorney charged defendant Johnson and codefendant Terry Betton with the murders of Hightower and Faggins. The first trial ended in a mistrial after the jury deadlocked on all charges. At the second trial, the jury convicted defendant of both murders and sentenced him to
A. Guilt Phase
On the night of September 26, 1996, Shetema White threw a party at her Jordan Downs apartment in Watts to celebrate her brother's release from custody. Faggins and Hightower attended the party. But Faggins had reportedly "snitched" on someone known as "Mo-C." Many people at the party warned Faggins he was in danger and suggested he leave.
Their advice was sound. Defendant was in a nearby apartment with codefendant and Tyrone Newton. They had a view of Hightower and Faggins at the party. Defendant said, "You know we can do them right here and right now." When defendant asked Newton whether he would kill Hightower, Newton said, "he ain't did nothing to me." "It ain't the fact he did something to you," defendant explained, "we're getting rid of all the snitches."
Lewis had already exited Hightower's girlfriend's car. As defendant and codefendant were walking back to the party, Lewis was moving a bicycle that happened to be in the car's way. According to Huggins and Newton, defendant approached the driver's side of the car and fired several times. Newton reported that defendant reached into the car with his gun; Huggins, on the other hand, said that defendant and the gun remained outside the car the whole time. Neither one saw codefendant fire at Hightower.
Leonard Greer was a few apartment buildings away when he heard the gunfire. He ran to see what had happened and came upon defendant and codefendant, who were running away. Defendant had what appeared to be a gun in his hand. A short time later, Greer saw his sister, Rochelle Johnson (no relation to defendant), walking towards him. She was crying and covered in blood. She said, "They didn't have to kill him. C.J. [defendant] didn't have to kill him." Together they walked to Rochelle's apartment. Their mother, Annette Johnson, arrived about 10 minutes later.
The foregoing account of the homicides came primarily from the statements of Greer, Huggins, and Newton. But each had also made statements tending to undermine their accounts of what happened.
At trial, Newton denied hearing defendant talk about killing snitches in general or these victims in particular. He likewise denied knowing about any disagreements between defendant (or codefendant) and the victims. Newton's contrary statements came from a videotaped interview with Los Angeles Police Detective Chris Waters while Newton was in custody for possessing cocaine. The videotaped interview, which occurred two weeks after the murders, was shown to the jury. At trial Newton disavowed his prior statements. He testified initially that he was intoxicated during the interview and did not know why he supplied the false information. He subsequently testified that he made those statements because he "got caught with something";
During the interview, Newton also expressed reluctance to testify at any future trial. He stated that he had "too many family in the projects" and did not want them to "die[ ] over me, man." He also claimed he himself would "be a dead victim if I get on that stand and tell you everything I'm telling you, and he's sitting there watching me." Newton added, "I'll be dead. I'll be a dead man walking. I might as well just go on and blow my head off. Once I get through telling everybody about him, I might as well go home and kill myself, 'cause I ain't gonna survive.... I don't want to be on no stand on nobody. That's the one thing I don't want to do.... I will not-never be-I will never get in court on this thing, 'cause I know his people be in the courtroom." At trial, Newton explained that he wouldn't be labeled a "snitch" because his prior statement inculpating defendant and codefendant "was a lie."
Huggins, for his part, spoke with Detective James Vena about defendant's role in these murders during an in-custody interview in December 1996. He addressed defendant's role in the murders again at trial. Huggins believed defendant had used an Uzi and a nine-millimeter Beretta, and that codefendant had used one or two nine millimeters. Huggins had earlier told Vena that Faggins dropped his gun-possibly a .380 or an Uzi-while running from defendant, and that defendant picked it up and used it to shoot at Faggins. But at the preliminary hearing in this case, he said he could not see the shootings because it was dark. At trial, Huggins explained the discrepancy by pointing out that at the time of the preliminary hearing he had been placed in a lockup cell with defendant and codefendant; that defendant had asked him, in front of codefendant and two dozen other inmates, "why'd I [Huggins] say all the stuff I said about him"; that Huggins became afraid for his safety; that he had asked to see the deputy district attorney before court that day, where
Greer had previously been convicted of numerous felonies. He admitted that during a conversation with Detective Vena in March 1997 he had falsely claimed to have witnessed the shooting himself. He also falsely stated that the shootings were in retaliation for codefendant having been "beaten out of" some cocaine. Greer admitted that he "wanted to do something about
Other witnesses also offered testimony about the events that evening.
Lewis testified that he heard gunshots as he neared the bicycle blocking Hightower's girlfriend's car and immediately ducked down. He then heard more shots as he was about to get in the car, and instead took off running. He said he did not know who did the shooting. But Huggins testified at trial that he had spoken with Lewis shortly after the shooting. In that conversation, Lewis had said he heard Hightower ask defendant why he "was doing him [Faggins] like that out there in front of all them people" before defendant shot Hightower. Lewis testified at trial, though, that he did not see Huggins at all on the night of the shooting. While Lewis did see Huggins the next morning, he denied talking about what happened the night before.
Greer's sister, Rochelle, offered testimony favorable to the defense. So did their mother, Annette. Rochelle testified that she had been at the party, along with Hightower and Lewis. She did not see defendant or Faggins there. She said that codefendant, who was her boyfriend, stayed at home all evening with her four-year-old child. Rochelle testified that she had returned home, which was a couple of buildings away, when she heard screaming and then a pounding on her door. A woman told her there had been an accident. Rochelle, a nursing student, ran to offer help. She claimed codefendant stayed behind.
Annette said she had wanted to go and comfort her daughter right away, yet it had taken her son over two hours to come pick her up. Annette thought she heard codefendant's voice when she arrived at Rochelle's apartment, but did not see him. Rochelle did not tell Annette she had seen the shooting or knew who had done it. According to Huggins, Rochelle and Annette each told him, during the trial, something like, "They know who did it; why they still calling [me] to court?" Rochelle denied this.
A pathologist testified that Hightower suffered five gunshot wounds, all from a large caliber weapon such as a .45. He did not find any soot or stippling on Hightower's
Police found 33 discharged cartridge cases at the scene from a variety of firearms. These included cases from a .380 (all fired from the same gun), a .45 (all fired from the same gun), and a nine millimeter (all fired from the same gun), as well as a lone cartridge case from a .25. A firearm examiner testified that an Uzi can fire nine-millimeter or .45-caliber bullets. But an Uzi (like most fully automatic weapons) typically leaves a characteristic mark in the shape of a quarter moon at the top of the shell-and no such
Shetema White, the party's host, denied seeing defendant or codefendant that night. She did not recall hearing gunfire, either. Jocelyn Smith, who married defendant while he was awaiting trial, testified that defendant was
B. Penalty Phase
The jury convicted defendant of both murders. The jury also found true the multiple-murder special circumstance as well as the allegations that defendant personally used a firearm and that a principal was armed with a firearm. At the penalty phase, the prosecution offered as evidence in aggravation two incidents: (1) defendant's conviction for selling marijuana in 1993; and (2) defendant's assault against his attorney on September 17, 1998, which occurred in the jury assembly room in front of 400 prospective jurors.
During the latter incident, defendant and codefendant were wearing remotely activated control technology (REACT) stun belts underneath their clothing. There were no visible restraints. The judge had just taken the podium to address the prospective jurors "when suddenly, and without any forewarning, defendant Johnson struck his attorney in the head." As defendant continued the attack, a sergeant in the deputy sheriff's department activated the REACT belt. When it did not appear to work, deputies attempted to restrain defendant directly. But defendant continued kicking at counsel and spit at him. Defendant was ultimately subdued and handcuffed.
Hightower's father, Larry Hightower, testified that Hightower had managed to overcome his early criminal history. He graduated from high school, joined the staff of Congresswoman Maxine Waters, and ultimately opened his own business with the help of Waters, Jim Brown, and the Reverend Jesse Jackson. The business, The Playground, garnered national attention, and Hightower once hosted President Clinton there. Hightower also helped create a truce between gangs after the 1992 Watts riots.
Psychiatrist Marshall Cherkas testified that defendant was uncooperative when
A. Barring Defendant from Trial Based on His Misconduct
Defendant had a long history of disruptive behavior during judicial proceedings and a fraught relationship with his attorney, Steven Hauser. In a previous prosecution for a different double homicide, the trial court eventually excluded defendant from the courtroom, and his attorneys "proceeded in his absence."
Later that day, with Judge Morgan presiding, Hauser announced that defendant was refusing to appear at trial until his pro se rights were restored. At a subsequent hearing on May 13, 1998, Hauser reported that defendant "cursed and spit" at him the last time they spoke, so Hauser requested that the bailiff be reassigned the task of inquiring whether defendant wanted to attend or listen to the proceedings. Defendant then agreed to return to court and was shackled. After the bailiff warned that defendant "may have a plan to do something" and the court ordered defendant wear a stun belt, defendant vociferously objected, called Judge Morgan a racist, and cursed at the court. Defendant was again removed from the courtroom. Defendant later returned to court wearing a stun belt. He announced that "[m]y record will reflect that I do not use profane language in a court."
After the first jury trial ended in a deadlock, the parties convened for a status conference. Defendant began the hearing by spitting twice on his attorney and interrupting the court. When instructed not to speak "unless you raise your hand and I acknowledge you," defendant responded, "Fuck you and the staff. Fuck you and suck my dick." Defendant tried to exit the
On August 25, 1998, when the parties convened to discuss the juror questionnaire, defendant reiterated his lack of faith in Hauser and claimed to be looking for private counsel. Jury selection was scheduled to begin on September 17, 1998.
Hauser was still representing defendant at the proceedings on September 17, 1998, which began in the courtroom. The plan was for everyone to go down to the jury assembly room, where the court would introduce the parties to the 400 prospective jurors, provide a time estimate and hand out hardship questionnaires, and then proceed to a full introduction of the case and distribution of the general questionnaires. After Hauser objected to the bailiff's plan to place defendant in leg chains, Judge Cheroske ruled that defendant and codefendant would instead wear stun belts.
In the jury room shortly thereafter, as the clerk was asking the prospective jurors to rise and be sworn, defendant suddenly and violently attacked Hauser, striking him on the head. Defendant exclaimed, "That mother fucker. I don't want him. Mother fucker. Fucking ho (sic )." Deputy sheriffs rushed to restrain defendant, and Sergeant McLin instructed him to sit down. The stun belt was activated twice, but it had little or no effect. Defendant refused to cooperate, and it "took any number of deputy sheriffs to attempt to subdue him." Defendant complained, "Mother-fucker. Tried to dump me in trial. [¶] I don't want you. I do not want this man. He do not represent my interest, ladies and gentlemen. I'm qualified to represent myself. This man has intentionally dumped me in trial." The court adjourned, but defendant interjected, "They do a lot of illegal shit in these courtrooms" and attacked Hauser a second time. A deputy suffered a finger injury in the melee. Hauser suffered visible facial injuries and swelling. Afterwards, defendant bragged to the bailiff that he would attack Hauser again if given the opportunity.
On September 21, 1998, defendant stated in no uncertain terms that he did not want to listen to the trial. Sergeant McLin also overheard defendant threaten Hauser: "I'm going to kill you and your family, you punk mother-fucker." The court noted for the record that defendant had repeatedly disrupted the hearing by banging or kicking on the bars of the adjacent lockup cell and making "extremely loud" noises.
At the hearing on October 2, 1998, the court noted that defendant, who was in the court building, had chosen not to listen to the proceedings and that he was no longer in the lockup cell "because of his repeated disruptions in the last proceeding by continually banging against the lockup door to the point where we could barely conduct court here."
At the next hearing, on October 19, 1998, the court found it "clear" that "despite any promises to the contrary, Mr. Johnson will continue to do any and everything possible to prevent the trial from
Prior to voir dire, the court instructed the new venire that defendant "will not be present for these proceedings. The court is instructing [ ] that you are not to speculate as to the reasons for his absence, nor is this a matter which in any way can affect you or your verdict in this case." Over the course of the trial, defendant consistently declined to listen to the proceedings. Hauser sought to communicate with defendant "almost on a daily basis," but
After the jury found defendant guilty as charged, defendant continued "refus[ing] to leave his confinement cell." During the penalty phase, defendant was asked to talk with Hauser about testifying. Defendant told jail personnel he didn't want anything to do with Hauser or the trial. Indeed, defendant refused to participate "in any way" when the jury returned its penalty verdict, even to watch the proceedings on closed-circuit television.
For sentencing, defendant came to court "in full restraints." Defendant addressed the
1. The adequacy of the October 19, 1998, hearing barring defendant from the trial
At the hearing on October 19, 1998, the trial court described defendant's attack on Hauser in the jury assembly room, defendant's threats against Hauser and his family and his repeatedly spitting on Hauser,
We agree. In Illinois v. Allen (1970)
Nor was the trial court required to undertake a full evidentiary hearing, with notice to the defendant, an opportunity to present and cross-examine witnesses, and the appointment of new counsel, before making any ruling at the October 19 proceeding. Defendant's assault took place in open court, albeit while the court was convening in the jury assembly room, and was accompanied by profanity that was transcribed by the court reporter. (Cf. People v. Lewis and Oliver (2006)
Defendant contends an evidentiary hearing was required here because the trial court's ruling relied in part on defendant's threats against counsel and his family, which were uttered outside the court's presence. We disagree. Defendant's physical assault against counsel, followed by his repeated disruption of the subsequent hearing by banging on the metal door of his lockup cell, were sufficient in themselves to justify his exclusion from the courtroom. And defendant himself concedes that his attack on Hauser was "clearly the primary reason" for excluding him from the trial. Even if the trial court erred by considering defendant's threats against Hauser and his family in addition to the other instances of misconduct, the error was harmless under any standard. Before defendant ever uttered those threats, the court had already
We likewise reject defendant's claim that the trial court was obligated to appoint new counsel to represent him at the October 19 hearing. Defendant relies on King v. Superior Court , supra ,
2. The decision to exclude defendant from the trial
The exclusion of a capital defendant from his own trial is unusual, but not
What justifies barring a defendant from the trial, after all, is the defendant's insistence on misconduct "so disorderly,
The defendant in this case violently attacked his attorney, in full view of the court and the prospective jurors. He did so while wearing a stun belt meant to
Defendant faults the court for failing to warn him that an assault against his attorney could specifically lead to his permanent expulsion from the trial. We disagree. Defendant was already aware that continued misconduct could result in his removal, given that the trial court had removed him from the courtroom based on his outbursts during his first trial. (See People v. Sully (1991)
The trial court in this case found that defendant posed a continuing threat. Defendant's conduct at trial leaves no doubt about why the court made this decision. A court need not engage in the empty ritual of periodically inquiring whether a defendant is willing to correct his behavior once it has reasonably determined that the defendant cannot be trusted to do so. (See Com. v. Scionti , supra ,
In any event, defendant repeatedly manifested his lack of interest in the trial itself. He refused daily invitations to listen to the proceedings,
What defendant argues next is that the trial court should have considered alternatives to excluding him from the courtroom, such as allowing him to be present while bound and gagged. Not once did defendant ask the court to consider this alternative, so he has forfeited the claim. (See People v. Banks , supra ,
Defendant's final challenge to the court's removal order is a technical one. He contends the trial court overstepped its bounds by barring him before his trial had even begun. He relies on section 1043, subdivision (b), which creates an exception to the requirement that a defendant be personally present
Defendant misunderstands the timeline. The parties convened in the jury assembly room for jury selection on September 17, 1998. The court would have proceeded to consider hardships and pass out the general questionnaires, but was disrupted by defendant's attack on Hauser. When the court discovered that the prospective jurors were irrevocably tainted by defendant's misconduct, it dismissed the venire. (See People v. Silva (2001)
In short, the record supports the trial court's finding that defendant would not conform his conduct to the norms of a criminal trial. We therefore find, under the unusual circumstances presented, that the trial court did not err in excluding defendant from the courtroom for the entirety of his capital trial.
B. Defendant's Forfeiture and Waiver of His Right To Testify
Defendant challenges the trial court's findings that he forfeited his right to testify at the guilt phase and waived that right at the penalty phase. The challenges lack merit.
On November 17, 1998, during the guilt phase trial, the court discussed preparations
The court then reviewed the conditions for defendant's testimony: "You understand that if you testify, it's going to be a question and answer procedure. Mr. Hauser will ask the questions, and then you'll respond. [¶] Do you understand and agree?" Defendant replied, "Oh yes, we understand it. We know how the proceedings supposed to work, but it don't seem to be functioning well in this courthouse." To emphasize the point, the court reiterated that "[i]f we use this procedure tomorrow morning, once again, it will be question and answer by the lawyers; and you will simply follow the rules as any witness would in any other trial. [¶] Do you understand how that works?" The colloquy proceeded as follows:
"DEFENDANT JOHNSON: I think it's already error been injected into these proceedings. Lots of them. Lots of errors.
"THE COURT: Do you understand what I'm saying to you, sir?
"DEFENDANT JOHNSON: I hear what you saying.
"THE COURT: All right. Now, in the event that you don't follow the rules, if you try to use the opportunity to do the things I've just mentioned or engage in profanity, which you have done that enough times, I will then-I have here a master switch in front of me. I will kill both the audio and video portion. At that point in time, you will be given a chance to reconsider your behavior.
"In the event that you don't want to conform, or if you say that you will and we reinstitute your testimony and you once again violate the rules, I want
"DEFENDANT JOHNSON: I understand y'all been violating rules in there.
"When did y'all start following rules in there?
"THE COURT: Do you understand what I'm saying, Mr. Johnson?
"DEFENDANT JOHNSON: I hear what you saying.
"THE COURT: Are you going to follow those rules?
"DEFENDANT JOHNSON: I'm going to do what I think is best on my own behalf.
"You know, if I write the rules-I understand you trying to set up criteria how you want me to operate.
"DEFENDANT JOHNSON: I understand what you would like me to do.
"THE COURT: It's not what I'd like you to do. It's what you will do, Mr. Johnson.
"DEFENDANT JOHNSON: I understand what you would like me to do, and there is no need for further discussion. Let's wait until tomorrow and see what's going to happen."
The court remained concerned whether defendant understood the ground rules for his testimony, so it tried once more:
"THE COURT: I want to know if you have any questions about what the rules are.
"DEFENDANT JOHNSON: No. No. There ain't no rules. Everything open in the courtroom. It ain't gonna get no rules until we get some attention to what's going on here.
"DEFENDANT JOHNSON: "It ain't nothing to discuss with us.
"THE COURT: Well, you understand he's the one who is going to be asking you the questions?"
"DEFENDANT JOHNSON: It doesn't matter.
"THE COURT: Will you be able to answer his questions?
"DEFENDANT JOHNSON: It's irrelevant. We'll see what goes on tomorrow. Let's talk about it tomorrow.
"[¶] .... [¶]
"THE COURT: No, you listen to me once more. I don't want any questions about this. You will testify tomorrow and follow the rules as any other witness. If you violate those rules, you know right now I will terminate your testimony; and you will never have an opportunity to testify before the jury.
"It's your choice. You can testify or not testify. That's how it's going to work.
"And you have a nice day, Mr. Johnson.
"DEFENDANT JOHNSON: You, too."
Following this colloquy, counsel and the court remained concerned that defendant was not going to follow the rules. Counsel, who was opposed to defendant's decision to testify and feared the effect of his potential misbehavior on the jury, suggested "prior to him actually testifying, that we have a little test run, out of the presence of the jury, just to see if he is going to cooperate." The court agreed to do so. The next morning, the court made the following statement for the record: "Based on his disruptive record and upon yesterday's comments, 'we'll wait and see what will happen,' also based on Mr. Hauser's request for some sort of a test on how Mr. Johnson will behave in front of this jury, and also based on my concern as to what sort of damage, irreparable damage, Mr. Johnson might be able to cause at this, the end of our second jury trial, I'm going to do the following:
"The jury will not be present.
"The bailiffs will tell Mr. Johnson that he's about to be on the hookup.
"I will activate the TV audio system.
"I will administer the oath. And I will then tell Mr. Johnson that the attorneys will be questioning him.
"And I will tell him then that Mr. Hauser is going to be then questioning him as his attorney.
"MR. HAUSER: I'll probably ask him where he was living on the date of September 26th.
"THE COURT: Based on whatever happens at that point in time, we'll make the decision as to whether the jury is going to be brought out and hear his testimony."
The clerk activated the video feed. After counsel called defendant, and defendant was sworn, the court asked counsel to begin questioning defendant. The exchange proceeded as follows:
"Q. Mr. Johnson, back on September 26th of 1996, where were you living?
"A. First of all, I wish to greet the jury.
"Good morning to y'all.
"And I apologize for not being able to be present at my own so-called trial, but it's beyond my control.
"First of all, you do not represent my interests and never have.
"And all three of you attorneys work together. Everything you got going is totally illegal, and I'm totally opposed to it.
"Q. Is that where you live?
"THE COURT: Did you hear the question?
"Q. BY MR. HAUSER: Where do you live?
"A. You do not represent my interests and never have.
"What y'all doing is illegal.
"You have never tried to do nothing to benefit me.
"Y'all all working together.
"I oppose what's going on.
"I'm not illiterate, neither am I dyfunctional (sic ). It shouldn't be conducted this way.
"This is reasonable doubt, ladies and gentlemen, what's going on in this trial.
"Q. So you don't want to testify. Is that you're saying?
"A. You do not represent my-I would appreciate if y'all read that letter I filed to the court Monday as a form of protest to what's going on to the jury to let them know that I'm not fooled or blind to what's going on.
"This is a concerted effort to intentionally dump me in that courtroom, ladies and gentlemen. Consider that.
"Q. Mr. Johnson, this is your chance. Now, are you going to testify or not?
"A. You do not represent my interest and never have, Mr. Hauser. I do not need to talk to you.
"Q. Does that mean 'no'?
"A. You have not-what about the tapes and everything y'all have to show that these witnesses was lying.
"Y'all knew they was lying and tried to withhold that evidence. That's discriminatory in nature, and what y'all doing is a crime.
"Q. Are you going to answer my questions?
"You do not represent my interests and never have.
"THE COURT: All right. Mr. Johnson, I take it then by your comments that you do not intend to follow the normal witness rules of question and answer, and you will continue to make these kind of comments.
"Is that what you're going to do?
"THE WITNESS: Yes, Judge Cheroske.
"THE COURT: Well, I have a little surprise for you, Mr. Johnson. The jury is
"You have proven by your conduct that you're not going to be able to testify in this case.
"THE WITNESS: That's right."
We agree with the trial court: defendant forfeited his right to testify by his misconduct. The right to testify, like other constitutional rights such as the right to be present or the right to confront witnesses, can be forfeited by disorderly or disruptive behavior that causes the defendant to be barred from the courtroom. ( People v. Hayes (1991)
In this case, though, the trial court did more than simply rely on its prior determination that the trial could not proceed in defendant's presence. The trial court sought to accommodate its substantial and documented security concerns with defendant's constitutional right to testify by proposing that
These responses proved unsettling to defense counsel, who feared that defendant's behavior would prejudice his chances with the jury. They were also unsettling to the court, who feared defendant was attempting to force a mistrial. Even though defendant had already forfeited his right to appear at trial-and even though defendant had failed to reassure the court that he would cooperate if granted the chance to testify remotely through video-the court agreed to offer defendant one more chance to show himself capable of testifying in an appropriate manner. It was defendant's own counsel who suggested the plan, which called for a dry run with the preliminaries of defendant's testimony, outside the presence of the jury, to see how defendant was going to behave. Defendant immediately demonstrated his refusal to abide by the question and answer format. He purported to offer unsupported legal conclusions, referred to alleged facts not in evidence, and declined to actually answer any questions-save the court's inquiry whether defendant intended to continue disregarding the question and answer format and to continue offering improper and inadmissible opinions about the proceedings. To that question,
Defendant complains next that the trial court "misrepresented" whether the jury was present, thereby improperly inducing him to waive his Fifth Amendment privilege against self-incrimination. We find that defendant suffered no Fifth Amendment violation. None of the questions at the Evidence Code section 402 hearing sought answers
Nor can we embrace defendant's contention that new counsel ought to have been appointed because Hauser undermined his interests by cooperating with the "dry run" procedure. Hauser was legitimately concerned that defendant's antics would prejudice him in the jury's eyes-and defendant's scattershot accusations at the Evidence Code section 402 hearing, had they occurred before the jury, might well have done so. Hauser's efforts to protect defendant's right to a fair trial cannot reasonably be characterized as a breach of his duty of loyalty.
We disagree, too, that the trial court had an obligation to suggest that defendant's testimony from the prior trial be offered in lieu of defendant's live testimony. Defendant forfeited any claim about his prior testimony by failing to offer it in evidence below. (See Evid. Code, § 354.) Moreover, whether defendant's prior testimony would have been helpful to defendant was a question of strategy reserved to the defense. Even assuming that defendant's prior testimony would have been admissible, it was not a choice the trial court was required to make or speculate about.
2. Penalty phase
Near the end of the penalty phase, the prosecution asked whether the parties should revisit the issue of defendant's potential testimony via closed-circuit television. Counsel reiterated his desire that defendant not testify, and the court wondered whether there would be "the same type of reaction that we had from him when he thought a jury was here once before." The next day, the prosecutor asked for "some kind of statement, either on the record or through Mr. Hauser, with Mr. Johnson saying he would rather not testify or something to that effect." The court responded that "the only thing I can
During a pause in the proceedings, defendant was asked whether he would be willing to talk with counsel about testifying. According to the bailiff, defendant told the sergeant that he did not want "anything to do with Mr. Hauser or anything to do with the trial." The trial court concluded, "Well, that answers that then."
We find no error. Because the record contained nothing to suggest that defendant disagreed with counsel's decision not to call him as a witness, the trial court had no obligation to advise defendant of his right to testify or elicit an express statement confirming counsel's waiver of that right. (See People v. Bradford (1997)
C. Denial of Requests for New Counsel
On numerous occasions during defendant's first trial, the court facilitated discussions
The legal principles governing a Marsden motion are well settled. " ' "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation , the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance." ' " ( People v. Vines (2011)
Defendant did not assert inadequate performance, nor did he claim an irreconcilable conflict existed, as the basis for requesting new counsel directly or by implication at the proceedings on July 7 or July 14, 1998. At the hearing on July 7, which began with defendant spitting on his attorney and included his repeated outbursts and copious profanity and insults directed at the court, defendant said "Fuck you" and then said, "I ask that I be allowed another attorney." When the court responded, "I am not getting you another attorney," defendant replied, "I'll get me one." At another status conference the following week, defendant interrupted the court to announce he "would like a continuance and another counsel. Under the Sixth Amendment-." The court said, "Denied," without specifying whether it was denying the motion on the ground that defendant had interrupted the court or was denying it as insufficient. In any event, though defendant did in the latter instance refer to a constitutional provision, he still failed to link his request to counsel's performance at that point or any earlier point in the proceedings.
Nor do we discern a valid request for substitute counsel on September 17, 1998, when defendant attacked Hauser in the jury assembly room. While defendant was being restrained by the deputies, defendant said, "That mother fucker. [¶] I don't want him. [¶] Mother fucker. [¶] Fucking ho (sic)." He also added: "I don't want you. [¶] I do not want
Defendant, moreover, was well aware of how to trigger the Marsden inquiry. On May 13, 1998, during his first trial, defendant said, "I would ask for a Marsden ," noting the "obvious conflict between Mr. Hauser and myself." On May 26, 1998, defendant complained of "irreceiveable [sic ] differences. And nothing I can do could change this. [¶] I'd like him removed if possible"-although defendant conceded the very next day that Hauser was competent. Defendant's comments in the three proceedings he has identified on appeal, by contrast, merely evidenced his displeasure with Hauser. (See Clark , supra ,
Moreover, a defendant may not force the substitution of counsel by manufacturing a conflict or a breakdown in the relationship through his own conduct. ( People v. Hardy (1992)
Relying largely on the disruptive behavior outlined above, defendant contends the trial court erred in failing sua sponte to suspend the proceedings and hold a competency hearing. We conclude that the trial court did not abuse its discretion by failing to declare a doubt as to whether defendant was competent to stand trial.
A defendant is incompetent to stand trial when he or she lacks the ability to consult with defense counsel with a reasonable degree of rational understanding or a rational and factual understanding of the proceedings. ( Dusky v. United States (1960)
As defendant concedes, at no point did any mental health expert ever opine that defendant was unable to assist his attorney or understand the proceedings against him. Nor did counsel or the court ever suggest that was so. To the contrary: counsel believed that defendant was not incompetent. So defendant points instead to his repeated outbursts in court, his rocky relationship with counsel, and his eventual attack on counsel in the jury room. He asks us to infer that this misconduct must have been triggered by a mental disorder so severe that it disabled him from assisting counsel or aiding in his own defense. The record belies defendant's proffered inference.
Defendant's disruptive and self-defeating behavior coexisted with his ability to assist counsel and participate effectively at the first trial. This fact strongly supports the conclusion that defendant's continued misconduct during the second trial was not evidence of incompetence. Rather, it was evidence that-in the words of one of the judges who "carefully observed this particular subject matter" at the first trial-he was "simply trying to play games with this court" and his "only purpose [was] to try to build up a ground for appeal if [he] should be convicted in this case." At the second trial, Judge Cheroske similarly believed that defendant wanted to return to the courtroom "for the sole purpose of engaging in more disruptive behavior." Because the trial judge is in the best position to assess the cause of such misconduct, we generally give "great deference" to the judge's decision whether to hold a competency hearing. ( People v. Marshall (1997)
Defendant's unwillingness to cooperate with counsel does not demonstrate incompetence. (See
Defendant directs our attention to a handful of federal appellate cases. We can distinguish them all. In each of them, evidence of the defendant's
By contrast, no evidence in the record here supports the conclusion that defendant's disruptive behavior was the product of a mental disorder. What ample evidence suggests instead is that he was malingering: Defendant selectively refused to cooperate with counsel before his first trial-and claimed that counsel and the court were part of a conspiracy against
Finally, we disagree that the trial court was obligated to suspend proceedings
E. Trial Court's Failure To Discharge Counsel Because of Alleged Conflicts
Defendant contends that his attorney labored under three actual conflicts of interest, any one of which obligated the trial court to discharge Hauser and appoint him new counsel. We disagree.
The state and federal Constitutions guarantee a criminal defendant the right to representation free from "conflicts of interest that may compromise the attorney's loyalty to the client and impair counsel's efforts on the client's behalf." ( People v. Mai , supra ,
The first alleged conflict arose from defendant's attack on Hauser and subsequent threats against Hauser's family. Yet the court inquired about this potential conflict, and Hauser noted that he had represented difficult clients before. Hauser then assured the court the attack would not impair his ability to represent defendant: "I honestly believe that I can represent Mr. Johnson with equal vigor as if this had never happened." In concluding that no conflict existed, the trial court could reasonably have credited Hauser's representations. (See People v. Hardy , supra ,
The second alleged conflict occurred when the prosecutor decided to rely on evidence of the assault as aggravating evidence at the penalty phase. Defendant claims that Hauser ought to have realized that he needed to withdraw as counsel so that he could testify as a witness to the
Defendant alleges the existence of a third conflict. This arose, according to defendant, from Hauser's acquiescence to the court's ruling requiring him-if he remained defendant's counsel-to refrain from arguing, "in the form of testimony or any other manner," certain mitigating aspects concerning the assault.
Even if defendant had established a conflict, he has not shown that the conflict adversely affected counsel's performance. To the contrary, counsel's decisions may have been the result of legitimate strategic and tactical choices. (See People v. Perez (2018)
Finally, defendant was not denied any constitutional or statutory right when the court inquired into Hauser's potential conflict in defendant's absence. As discussed earlier, defendant forfeited his right to be in the courtroom by his own misconduct. Defendant could have listened to the proceedings with a speaker, but he repeatedly declined to do so. Defendant cannot fairly complain that he lacked input into the discussions surrounding counsel's alleged conflicts, when it was defendant's own decision to separate himself from the proceedings that deprived him of the opportunity.
F. Huggins's Volunteered Statement That Defendant "Had Already Beat Two Cases Like This"
Hightower's half-brother, Robert Huggins, was the only witness who testified at trial that defendant shot Faggins and Hightower. Huggins did not report to the police what he had seen until a few months after the murders,
The defense immediately objected to this last response and, at sidebar, asked for a mistrial. Hauser added that Huggins's statement would also have prejudicial effects at any penalty trial. The trial court denied the request for a mistrial and proposed to admonish the jury to disregard Huggins's response. The trial court rejected codefendant's request to voir dire the jury to determine their ability to disregard the comment, reasoning that such questioning "would be creating a bigger problem for Mr. Hauser's client." Hauser agreed. Because some new witnesses had just arrived at court, the trial court took them out of order. Later that same day, after those witnesses had testified, the trial court reminded the jury about the pending objection to Huggins's testimony. The court stated that it was sustaining the objection and striking the response: "So you will disregard that answer."
Defendant contends the court's remedy was insufficient to dispel the prejudice from Huggins's response. He believes the trial court instead should have granted a mistrial. A court should grant a mistrial " 'only when a party's chances of receiving a fair trial have been irreparably damaged.' " ( People v. Peoples (2016)
No abuse of discretion appears. Huggins testified, without objection, that his reluctance to implicate defendant earlier was due to the circumstance that defendant "was still running around on the streets." The unstated (but self-evident) implication was that Huggins was afraid that defendant-who had already killed Faggins and Hightower-might retaliate if Huggins were
Moreover, Huggins's volunteered statement was brief and unaccompanied by anything that might have tended to corroborate it or otherwise demonstrate its truth. Nor did the prosecutor mention it in the guilt or penalty phases. At most, the jury might have concluded that Huggins believed what he said. But that inference could easily have been-and was-dispelled by the admonition the jury received. To the extent the jury-despite the instruction to disregard Huggins's statement-might have relied on it to infer that Huggins had been reluctant to testify against defendant out of fear, it was cumulative of the other evidence that Huggins was afraid. Accordingly, the potential prejudice at both the guilt and penalty phases from Huggins's volunteered statement was not of the sort that could not be cured by an admonition or instruction. (See
G. Rochelle Johnson's Hearsay Statement That "C.J. Didn't Have To Kill Him"
Codefendant's girlfriend Rochelle Johnson gave conflicting statements as to whether she had been at the party at the time of the shooting and whether she knew who committed the shootings. She told Detective Vena at the scene that the music stopped when Hightower left the party, that everybody went outside, and that she saw Hightower lying in the front seat of his girlfriend's vehicle only after he had been shot. At trial, though, she testified that the party was still going on when she left around 11:30 p.m., that after she got home she heard a lot of screaming, and that someone came to her door seeking her nursing skills because of an "accident." She then ran out and found Hightower sitting in a car, "full of blood."
Rochelle told Detective Vena that she did not know who the shooter was. But her brother, Leonard Greer, testified that she had told him as she was
An out-of-court statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted, so long as the witness has been given an opportunity while testifying to explain or deny the statement or is still subject to recall. ( Evid. Code, § 1235 ; see People v. Chism (2014)
Defendant argues that even if the hearsay statement was inconsistent with Rochelle's trial testimony, it should not have been admitted because there was insufficient evidence that she had personal knowledge of the shooter's identity. (See Evid. Code, §§ 403, subd. (a)(2) [proponent of evidence has the burden of establishing a witness's personal knowledge], 702; see generally People v. Cortez (2016)
Rochelle's statements about whether she was present at the time of the shooting were vague and inconsistent. She testified that she arrived at the party around 7:30 p.m. It was general knowledge that Faggins was in danger, which was why "[e]verybody at the party was trying to get [him] to leave." Faggins, Hightower, and Lewis left the party around the same time. Rochelle told Detective Vena that at that point, the music stopped and "everybody went outside." According to Newton, defendant and Betton walked down to the sidewalk "where everybody else at" to attack and then shoot Faggins. Rochelle told Vena she ran down to 99th Place from the party to find Hightower had been shot. At trial, though, Rochelle provided a different
Other witnesses, however, placed Rochelle right at the murder scene. Lewis reportedly told Huggins that Rochelle was "near" the car at the time Hightower was shot. Lewis also told him that Rochelle "knew more about the incident than she was talking about." This evidence, if credited, supported an inference that Rochelle's statement about the shooting was based on personal knowledge.
Greer's testimony likewise tended to show that she was at the murder scene.
It is true that each of these alleged eyewitnesses suffered from substantial attacks on their credibility. Greer was impeached with numerous felonies. He lied to police about a number of facts, including whether he had been at the party, whether he witnessed the murders, and what motivated the murders. Huggins had given inconsistent accounts to police and under oath, in addition to being impeached with his prior misdemeanor spousal abuse. And at trial, both Lewis and Newton repudiated their prior statements. But it was for the jury to decide which account to believe. (See People v. Zilbauer (1955)
Tyrone Newton told police in a videotaped interview that defendant planned and committed the murders of Faggins and Hightower. At trial, though, Newton insisted that his videotaped statement, which was taken while he was in custody for cocaine possession, was a lie. According to Newton's trial testimony, an officer promised to "drop" the cocaine charge in exchange for information about the murders. Newton claimed not to know anything about the murders, but had just "followed along" with the story provided to him by police during the time he was in custody for cocaine possession. Newton explained that, on prior occasions, he had offered information to the police in exchange for release from custody.
Detective Waters had conducted the videotaped interview. She denied promising Newton anything in exchange for his statements.
To corroborate Newton's expectation of favorable treatment in exchange for statements about the murders, codefendant's counsel pointed out that Newton had been released a short time after the videotaped interview and was never prosecuted for cocaine possession. Counsel also elicited admissions from Detective Waters that, during their interview, Newton said something to the effect of "the more y'all get me off y'all line, the happier I will be" and talked about the fact that he had
Defendant claims the trial court erred in barring the defense from offering certain evidence of Newton's motivation in making the videotaped statement and thereby violated his Sixth Amendment rights. But it is not clear the trial court actually prevented either defendant from presenting the desired excerpts of the interview. True, the trial court expressed skepticism about piecemeal presentation of new videotaped excerpts during Detective Waters's testimony, when the videotape had not been cued to the relevant portion and a transcript had not been provided to the jury. Based on that concern, the court sustained the objection "for right now." Codefendant then offered additional videotaped excerpts (and a transcript) when Newton was recalled to the stand, but never tried to include the excerpts concerning Detective Barber. By failing to press for a final ruling, defendant forfeited the claim. (See People v. Holloway (2004)
In any event, the trial court did not abuse its discretion in excluding the evidence described in codefendant's offer of proof. Additional evidence of Newton's history with Detective Barber would have been cumulative of what the defense had already elicited from Newton and Detective Waters. (See People v. Cunningham (2001)
Newton claimed during his videotaped police interview that he was present when defendant "was talking about killing" Faggins and Hightower. According to Newton, defendant announced, "[W]e're getting rid of all the snitches" and, pointing at the victims, said, "[W]e can do them right here and right now." At trial, Newton repudiated his videotaped statements and testified that he had
Until recently, we had imposed on trial courts a sua sponte duty to instruct the jury that a defendant's oral admissions should be viewed with caution. (See People v. Wilson (2008)
The trial court here failed to instruct the jury that it should consider defendant's oral statements with caution. The Attorney General concedes that the trial court erred in failing to instruct the jury in accordance with CALJIC No. 2.71.7
But ultimately, the error was harmless. The jury was fully aware of its duty to resolve whether defendant made these statements.
So we do not dispute that the jury needed to determine whether defendant made the statements described by Newton. But the other jury instructions made that reasonably apparent, and alerted the jury of the need to carefully consider Newton's account. In particular, the jury was instructed about the significance of a witness's prior consistent and inconsistent statements ( CALJIC No. 2.13 ), discrepancies in a witness's testimony or between the witness's testimony and that of others ( CALJIC No. 2.21.1 ), a witness's willfully false statement in material part ( CALJIC No. 2.21.2 ), conflicting testimony ( CALJIC No. 2.22 ), the believability of a witness convicted of a felony ( CALJIC No. 2.23 ), and a witness's credibility in general ( CALJIC No. 2.20 ). Under these circumstances, it is not reasonably likely or possible
J. Challenge to the Instruction That Defendant Voluntarily Absented Himself from the Proceedings
The trial court instructed the venire not to consider defendant's absence from the
Defendant renews his claim that the word "voluntarily" injected an untrue and unnecessary concept into the instruction. He relies on the trial court's acknowledgement that defendant probably would want to be present in the courtroom. We need not decide whether a defendant who knowingly and voluntarily disrupts the proceedings such that the trial cannot continue in his presence has voluntarily absented himself. (But see Maxwell v. Roe , supra ,
We also reject defendant's claim that the court's instruction to disregard defendant's absence was undermined by the standard flight instruction ( CALJIC No. 2.52 ), which, as given, provided: "The flight of a person immediately after the commission of a crime or after he's accused of a crime
Defendant is correct that the italicized phrase in CALJIC No. 2.52 was unnecessary in this case and could have been deleted. But the jury was instructed to "[d]isregard any instruction which applies to facts determined by you not to exist" and warned "not [to] conclude that because an instruction has been given that I'm expressing an opinion as to the facts." So there was little risk that the jury misapplied the instruction to defendant's detriment. (See People v. Barnett (1998)
K. Failure To Instruct the Jury That It Could Consider Huggins's Misdemeanor Conduct in Evaluating His Credibility
At trial, Huggins admitted he had been convicted of misdemeanor spousal abuse in 1997. The trial court instructed the jury in accordance with CALJIC No. 2.20 that "[i]n determining the believability of a witness, you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony, including, but not limited to ... a witness's prior conviction of a felony." But the court did not append the standard language allowing the jury also to consider "[p]ast criminal conduct of a witness amounting to a misdemeanor." ( CALJIC No. 2.20 (6th ed. 1996).)
Even assuming that the trial court had a sua sponte duty to include the reference to misdemeanor conduct (see People v. Contreras (2013)
L. Instruction Concerning Juror Misconduct (CALJIC Former No. 17.41.1)
The trial court instructed the jury that "[t]he integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation." (CALJIC former No. 17.41.1) Although we disapproved of this instruction as an exercise of our supervisory power
M. Instructions Concerning Reasonable Doubt
Defendant contends that certain instructions- CALJIC Nos. 2.01, 2.02, and 8.83.1 -undermined the requirement of proof beyond a reasonable doubt, and that certain other instructions- CALJIC Nos. 2.21.2, 2.22, 2.27, 2.51, and 8.20 -individually and collectively diluted the reasonable doubt standard. Defendant acknowledges that we have repeatedly rejected similar challenges. (See People v. Cage (2015)
N. Judicial Bias
Defendant contends that the trial court was biased against him. As evidence, he submits a "grab bag" of the court's rulings. Yet defendant never objected to the vast majority of these rulings-and not once on the ground of bias-nor did he ever move to disqualify the court on the ground of bias. A defendant may not go to trial before a judge, betting on a favorable result and failing to raise objections of bias, and then argue on appeal that the judge was biased. ( People v. Johnson (2015)
The trial court declined to give defendant's requested instruction informing the jury that it "was permitted to consider pity, sympathy or mercy for the
The court also denied defendant's request to instruct the jury that "the sentence of death is to be considered a worse sentence than that of life without the possibility of parole, even though you may personally disagree." As we have previously held, the other jury instructions, particularly CALJIC No. 8.88, as well as the penalty trial itself make clear that death is the most severe penalty. (See People v. Contreras , supra ,
P. Cumulative Error
Defendant contends that the cumulative effect of the errors in this case was so prejudicial as to require reversal of the judgment. But the only fact finder-related issues we have resolved on harmless error grounds are the trial court's failure to instruct the jury to view Newton's account of defendant's out-of-court statements with caution, and its passing assertion that defendant had "voluntarily absented" himself in the course of instructing the jury not to allow his absence to affect their decisionmaking in any way. Neither of these errors or potential errors, nor their cumulative effect, warrants reversal. (See People v. Perez , supra ,
Q. California's Death Penalty Statute
Defendant articulates several challenges to the constitutionality of California's capital sentencing scheme, but concedes these have each been "consistently rejected" by this court. Defendant's arguments do not persuade us to reconsider our precedent. ( People v. Winbush (2017)
Defendant also concedes that we have repeatedly held that certain procedural distinctions between capital and noncapital sentences are sufficiently justified (see, e.g., People v. Virgil (2011)
We affirm the judgment in its entirety.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
RAYE, J.
Notes
Administrative Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
According to the prosecutor below-who had also prosecuted defendant on these earlier charges-the jury acquitted defendant of one count and deadlocked on the other.
Even so, a capital defendant may not waive the right to be present at certain proceedings, including those portions of a trial in which evidence is taken before the trier of fact. (People v. Jackson , supra , 13 Cal.4th at pp. 1210-1211,
Defendant contends that counsel acted against his interests when counsel opined in court that defendant's attack and his other outbursts were "merely a tool to either delay the trial or to eventually wind up defending himself, which I believe is what his goal is." But counsel's statement was made at a subsequent hearing, after the court had already decided to exclude defendant from the trial. Moreover, Hauser made the statement in the course of explaining why he was not declaring a conflict with his client, despite the prosecutor's intention to use the assault as evidence in aggravation in a potential penalty trial, and not to disparage defendant. Finally, Hauser's characterization merely echoed the finding the court itself had made at the earlier hearing: "I suspect that [defendant's actions] were planned for one more time to try to disrupt the proceedings and delay it."
The trial court declined to offer defendant a video feed of the entire proceedings, observing that "we have no facilities for doing that." (Cf. People v. Mayham (2013)
The court singled out "one, your lack of fear of Mr. Johnson; two, the fact that you have elected to continue to represent Mr. Johnson despite the prior incidents; or, three, to refer to the attack in any way in argument such as the defendant must have just been overcome by emotion, having sat before the 400 people and realizing his jury trial was about to start, or it was his attempt to delay the proceedings and/or get another lawyer, or anything like that."
Immediately prior to this admonition, the trial court referred to its earlier instruction that "whenever I order anything stricken by way of testimony, it's not in evidence; and you're not to consider it for any purpose. As a matter of fact, you're to treat it as though you never even heard it." The jury collectively responded that it remembered that instruction and would have no difficulty following it.
At the time of trial, CALJIC No. 2.71.7, as given, provided: "Evidence has been received from which you may find that an oral statement of intent, plan, and motive was made by the defendant before the offense with which he is charged was committed. [¶] It is for you to decide whether the statement was made by the defendant. [¶] Evidence of an oral statement ought to be viewed with caution."
Defendant was well aware of the procedure to disqualify a judge for bias. He had filed a motion to disqualify a different judge prior to his first trial, but the motion was denied.