PEOPLE v. JOHNSON (BILLY JOE)

Respondent’s Brief

Cal.October 21, 2014

SUPREME COURT COPY In the Supreme Court of the State of California — THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. BILLY JOE JOHNSON, Defendant and Appellant. CAPITAL CASE Case No. 8178272 Orange County Superior Court Case No. 07CF2849 The Honorable Frank F. Fasel, Judge Presiding SUPREME COURT RESPONDENT’S BRIEF FILED OcT 21 204 Frank A. McGuire Clerk KAMALAD. HARRIS Attorney General of California JULIE L. GARLAND Senior Assistant Attorney General HOLLy D. WILKENS Supervising Deputy Attorney General RONALD A. JAKOB Deputy Attorney General State Bar No. 131763 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2332 Fax: (619) 645-2191 Email: Ronald.Jakob@doj.ca.gov Attorneysfor Respondent Deputy DEATH PENALTY TABLE OF CONTENTS Page Statement Of the Case...ccsccssssssssesssssesssssssecssscseseeseeesesensesrssssscsacsessees 1 Statement of Facts .......... ce ceeeeeeeesseesauaneuaeasecsseeseseececcsesscseueasssceseesscssssceeceetess 3 A. Guilt phase 0.0... eeessssscsssssscsssessesseesseeeseeesssssssscsecesees 3 1. Prosecution Evidence............00 sestaeseneesnensees 3 a. Background.........cscsccssessssssecsseeseeseees 3 b. The Murder ..........ccccccssssseesseesssssssreeeees 5 c. INVeStigatiOn .........scessscessseerseseseeseseeess 7 d. Johnson’s Prior Testimony from the Lamb/RumpTrial...............cce8 10 e. Gang Expert Testimony................0006 14 2. Defense Evidence .........ccssccssessesessssessesssseees 21 B. Penalty phase .........csccssssssssssesssssssessessesessessessnurecesenss 21 1. © Prosecution Evidence.....ssssssescsssesssssssssssssssee: 21 a. Prior Violent Conduct.............ccccscee 21 (1) The Clyde Nordeen MUTICET 00.0... esceesccceseeseeseesersnees 21 (2) |The Cory Lamons Murder....... 24 (3) The Residential Robbery of George Troutman................ 27 (4) The Robbery of Cathy Brandolino...........ccccscsseeseseereees 28 (5) The Reckless Evading of a Peace Officer ..........csseesereees 29 . (6) Additional Custodial 005(131 (7) Other Evidence... 35 b. Victim Impact Testimony................... 40 2. Defense Evidence...........ccccscssccssesessesssseeseesees 42 ALQUMENE 00...eee eceeeeseetsesceseesscceseeenseseesesatesssssesseseessesseseeeeeeccaessesssssseseess 51 Il. Hl. IV. TABLE OF CONTENTS (continued) Page Viewingthe facts in the light most favorable to the prosecution and drawingall reasonable inferences from the facts in support of the judgment, there was substantial evidence of lying-in-wait for purposes of the special circumstance and a theory of first degree MULT00.2... eeeeeeseeeeseceessceessscenscessacecssseecsenersessessecsueesesatesssases 51 A. Standard Of review .........cccccccccccscccscssscssscsesceeeeenssecess 51 B. Underthe applicable standard of review, there wassubstantial evidence of lying-in-wait to support the first degree murder and special CITCUMSTANCE VETCICHS..........ceseesssseessseeesseesesseeseeees 53 The lying-in-wait special circumstanceis CONSTHUTIONAL0...eee eeseceteeeseeseeeetseessnsessecessecssusecsseeneesees 62 Johnson’s instructional error claim was forfeited; the aiding and abetting instructions were proper since they were not based on the natural and probable consequences doctrine; any alleged error was harmless in light of Johnson’s admissionsand the jury’s conspiracy verdict; and there was no ineffective assistance Of COUNSEL ......... ci essecsssesrsesssesseesceseceserecsseceeaeens 63 A. The claim wasforfeited .........c..ccccccccccceseccsecceescesceseee 64 B There was no instructional errOr............csccssseeseseeees 65 C. Thealleged error was harmless ......c..sccsescescsscesesseee 66 D Johnsonfails to demonstrate ineffective assistance Of COUNSEL..................ccssssesesssceceerecsssssereees 68 The prior murder special circumstance as applied in _Johnson’s case is Constitutional..........csssssesseseseceesseeeenees 71 Johnson forfeited his claim regarding the victim impact testimony of Cory Lamons’ mother; victim impact evidencerelated to prior violent conduct under section 190.3, subdivision (b), is admissible and | constitutional; and any alleged error was harmless............. 72 A. The claim wasforfeited ............ccceseesessseessesssteeseees 73 il TABLE OF CONTENTS (continued) Page B. The evidence was admissible andconstitutional...... 75 C. ~— The alleged error was harmless................cccsccseeeees 77 VI. Johnson forfeited his prosecutorial misconduct claim; there was no misconduct; the alleged error was not prejudicial; and there was no ineffective assistance of COUNSEL oo... eeeeeeeecsecesssecsessececessntecsacessssssseseesensessseesecses 80 A. Relevant proceedings............cssssessessecersessereseseeees 80 B. The claim wasforfeited...ceessesceeenseeeeesesseees 81 C. There was no MisCONnduct...........cccessceseeesssesrerseseeees 83 D. The alleged error was harmless..............:ccscesssesssseees 86 E. Johnson fails to demonstrate ineffective assistance Of COUNSEL............cccccccccsccsesecerceseeseecsnerees 88 VII. There was no cumulative effect of guilt or penalty phase errors warranting reversal............:cccsccsssecserssseseessesens 88 VU. California’s death penalty statute is constitutional.............. 89 Conclusion ............cccc00 sesesesesesscseeeeseeeeeeceeeoeseessseceseesesseeeeeateessnseessaseseesnsses® 94 ili TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]...91 Brownv. United States (1973) 411 U.S. 223 [93 S.Ct. 1565, 36 L.Ed.2d 208]oo.89 Cavazos v. Smith | (2011)US. [132 S.Ct. 2, 181 L.Ed.2d311).52 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] .........00... 66, 77, 78 Darden v. Wainwright (1986) 477 U.S. 168 [106 S.Ct. 2464, 91 L.Ed.2d 144] ww83 Dominov. Superior Court (1982) 129 CalApp.3d 1000.0... ccccesesescsessssessssessscssscssesssscecersscseecenens 54 Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431]wee83 In re Cox (2003) 30 Cal4th 974 ocececcsssesssssssecsssecssssssessessssscscsssscsesessessesesasentenees 69 Inre Fields (1990) 51 Cal.3d 1063 occeccsssssssssesesesssssscsessessssccscssscscsseceressaeseseens 70 Inre Seaton (2004) 34 Cal4th 193 oocecesssscsssssssesescsesesssssssesessssssscecssacarsesssscsersens 65 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]...52 Lewis v. Superior Court (1999) 19 Cal4th 1232...eesseecsscsseessseesseessesesssseesssnessuesssensessnsessneeenees 76 Neumannv. Bishop (1976) 59 Cal.App.3d 451oecccsesssssssseetessssssssseees sesaeaeseneaenensaces 85, 87 iv TABLE OF AUTHORITIES (continued) Page Payne v. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]...72 People v. Abel (2012) 53 Cal.4th 891 ooccccesscssssesssesssssssesssesessessnesesssescsesssessessseres 77 People v. Anderson (2001) 25 Cal.4th 543iccceeesecesesssesensesssesesssssssessesescsssessssecsens 88, 92 People v. Ayala (2000) 23 Cal4th 225 ooeecssssesecesecessssesssscesseseseseseseseevssssesseesscseeees 83 People v. Bean (1988) 46 Cal.3d 919 ooceseeeeessessecsusssnecasecssesuesacenscsuesneesecsesseenes 53 People v. Beeman (1984) 35 Cal.3d 547oesssssssgeecsnteccennseesnvecsasencasesensessnecsnnsessess 66 People v. Bennett (2009) 45 Cal.4th 577 oecesecsssecessscssesssssesssssssessscssssssessseseeecsesesssasessens 89 People v. Benson (1990) 52 Cal.3d 754 ooecesessessecssssescsecscassesssesesesesssesssesseceseceeneeeeees 76 People v. Black (2014) 58 Cal.4th 912oeesesscscssssescsssssssssessscsesescsesescscatscessesseess 54 People v. Bolin . : (1998) 18 Cal4th 297 oooccsssessessessesssssnssesssessssssesseesees 53, 61, 69, 88 People v. Bonilla © (2007) 41 Cal4th 313 onceecseesessesseesssesseesessesssssssssssesseneasenseerenes 55 People v. Bonin (1989) 47 Cal.3d 808 oo.ccesssscssesessssesssessssssesscessscseseseecscsescessaseeres 68 People v. Booker (2011) 51 Cal4th 141occccssssssssesssessescsescsesescseesseesessenees 53, 77 People v. Boyde . (1988) 46 Cal.3d 212icsssssesesssessessssscsesscsnsseseessseessesnsassesseessessees 76 TABLE OF AUTHORITIES (continued) Page People v. Boyette (2002) 29 Cal.4th 380 occseeceeeeccesenssesesseacressnenseeseessesaeeeans 70, 81 People v. Bradford (1997) 14 Cal.4th 1005iesessssssececesecessseecssscnsccsesesessseseesseeesscsvens 89 People v. Brady (2010) 50 Cal4th 547occcsssccnssecsecnsscssceessseesesessensseseseecesesaeasseenees 75 People v. Bramit (2009) 46 Cal.4th 1221occceeesescecseceseresceseeeeesencseseeeeeneescneseesees 75 People v. Breverman (1998) 19 Cal.4th 142occcecsecsseeteteeneseeseeeseseseeseeneeeesseaes 67, 70 People v. Brown (1988) 46 Cal.3d 432 oocscsssesessecssseseeeessescescscaceesessenenseaeesesess 77, 86 People v. Brown (2003) 31 Cal.4th 518oeeeessscessecssssceecsescseesssesscsesceseesseeaeeeeeesesnees 82 Peoplev. Brown (2004) 33 Cal.4th 382 ooo ceeesescestescseeseeeererseeseneaseseeseeeseenespose92 People v. Carpenter (1997) 15 Cal4th 312cceeeesssesecseresssseseeeeeeecereeeesesesseeersentecseesess 54 People v. Castaneda (2011) 51 Cab4th 1292occeeeesectsessseecessceeeasscsceseesseererseeesseeeteneaees 64 People v. Ceja (1993) 4 Cal.4th 1134ieecsssesessecececeserereeenssssesessseneees 52, 53, 54,61 . People v. Chatman (2006) 38 Cal.4th 344 oocessssscecssnscesecectesseessescscacscseseeeceesecerenessaeees 75 People v. Clark (1990) 50 Cal.3d 583 ouesessssssssecsereesececscececencsencacsenecssecesenesseneeneatees 76 People v. Coddington (2000) 23 Cal.4th 529 ocsecesssessessecesscssseesesseacsctesseceseaeesseesesecetesenees 70 vi TABLE OF AUTHORITIES (continued) . Page People v. Cook (2006) 39 Cal4th 566 oo.cccseesseesssseseseseseeessssesessseesesesssesescssessscses 83 People v. Cooper (1991) 53 Cal.3d 771 oieccseesesescssecsessssessescsesesscsessessesscecsecssssssssssssnss 89 People v. Combs (2004) 34 Cal.4th 8210 ooccscsssssssscssssssssesesescsssssssseesssecsssssscecseses 53 People v. Cortez (1998) 18 Cal.4th 1223 ooecsccessssesssssssessesesssssessssestscscssssseseans 67, 68 People v. Cowan . (2010) 50 Cal4th 401 ooccsescssetsessssssesesessescecsssessesseetscsessessases 90 Peoplev. Cunningham (2001) 25 Cal4th at 926 oocccescesccnessseeseeteessesseesteseseseenensseeseeseenss 92 People v. D’Arcy . (2010) 48 Cal.4th 257 ocecsccssssssssssssssssssssssesssecsssssssessecsssesecsesesaterens 51 People v. Daggett (1990) 225 CalApp.3d 751 v.ccceccsseescssesssescsesessssessesssescsssscsessesesssssarss 84 People v. Daniels (1969) 71 Cal.2d 1119iecccessseseesesessssssesssssscessscsssesssereees 84, 85 People v. Davis (1970) 46 IIL.2d 554, 264 N.E.2d 140woessesesenessnesnaees 85, 87 People v. Davis (1995) 10 Cal.4th 463oeccessssssesssssssesssssssersccesesssssesaves 69, 85, 86 People v. Davis (2009) 46 Cal4th 539 ooccesssssescscscsssesesesesesescssssrsnssecssscesees 77, 79, 82 People v. DeBose (2014) 59 Cal.4th 177ucecssesseeeeeeeessasscesesesaeasecescescensecesesecsssenseees 93 People v. Demetrulias (2006) 39 Cal4th Locccescessesessssescsesessssssssssssssecsessesssacsvevees 73, 75 Vii TABLE OF AUTHORITIES (continued) Page People v. Doolin (2009) 45 Cal.4th 390 ooicsecssescseesescnssessectecesaserestenseseeteenseeees 83, 86 People v. Dykes (2009) 46 Cal.4th 731 occcceseeececeseceseecsecesescseseeseeeneesees 77, 82, 83, 84 People v. Edelbacher (1989) 47 Cal.3d 983 ooeecessscseenseeescesessecseseessseeseeeasceaseeseeacsseeeeseeas 54 People v. Flood (1998) 18 Cal4th 470 ooeeessesssesssssessececsensssssseessesacsesenseeeeeseseesenenes 66 People v. Foster (2010) 50 Cal.4th 1301oeeecessesceesseeescssesenseesseseseeseeaeeees 90, 91, 93 People v. Freeman (1994) 8 Cal.4th 450 0...vesesesevseceeeeneeceneeseacaeaeataceeeneaseeeneeacaceceeeaceres 85, 87 People v. Frye | (1998) 18 Cal.4th 894 oooecssssesesscesesesssesssesssseesseesseetseaseeseeseesees 83 People v. Fuiava (2012) 53 Cal.4th 622 ooseessssscsssscscscsetcnsscssseseeesseseseessesseseseseeeseeses 81 People v. Garcia (2002) 97 CalApp.4th 847oecesecssssssesssssesesssestssscsssessesssescssesssseassees 76 People v. Gonzales | (2011) 51 Cal.4th 894 oocccesseesssseneesssesessesseeesessseeenees 77, 86, 87 People v. Grant (1988) 45 Cal.3d 829oeesssesseseceseseseresesessssseeesesssececsessapecseeseeeses 71 People v. Gray (2005) 37 Cal4th 168occceccssssseecssssessscsessssseesssssesessesereesseseesessees 70 People v. Green (1980) 27 Cal.3d Loesessessseccesctstsesssssssecssessessseesesessssesessseseseseeeseetes 75 People v. Guiton (1993) 4 Cal.4th 1116 ooesesssssessssssssscssssssssstsnsessesescsesescsessseseaesees 62 Vill TABLE OF AUTHORITIES (continued) Page People v. Gurule (2002) 28 Cal4th 557 ooeeeeseseeseseseseseseseseenssessesssseseseseseseacscsveaesenes 71 People v. Gutierrez (2002) 28 Cal.4th 1083 oo.ccccssessessessssssesesssssscseseseecsessssedesssessssesens 54 People v. Hajek (2014) 58 Cal.4th 1144ooesesssesssssestssesessetssessesessseneseeesessees 54 People v. Hamilton (2009) 45 Cal.4th 863oeccsecsessssssessssssssssssesseseseseseseeesesesenssscansceves 82 People v. Hardy (1992) 2 Cal.4th 86.0.0.ccescsseesssesssessssssssescssesssesssesecessecsvscssscesssesers 61 People v. Haskett (1990) 52 Cal.3d 210 occcscsstesssssssesssssssesseseseseseeeseesesssscssenesssseess 68 People v. Hendricks (1987) 43 Cal.3d 584occsessssssesssesesssscssssessssessseseessesseesatssscesansesess 71 Peoplev. Hill (1998) 17 Cal.4th 800 ooecccsssessssssessesssesesesesssesescsssesessestesssnsveees 88 People v. Hillhouse (2002) 27 Cal4th 469 oocseseesessesesessssssssessssscssssseseseseessess 57, 58, 60 People v. Hinton (2006) 37 Cal4th 839 ooeccssssssessssssssssssssesecsesssssesssesessscscscsesssarssserae 71 People v. Holloway © (2004) 33 Cal4th 96oeeeccesssesesseesesesssesesessessseseeseavseeeeaeseseaeeteeees 67 People v. Holt (1984) 37 Cal.3d 436 occccssssssssssssssssesesssesssstsneseseaescsseecssassssessseeests 88 People v. Hope | (1998) 184 TII.2d 39, 702 N.E.2d 1282 ooeesccsssesesessesceescsssssecerees 76 People v. Howard (2010) 51 Cal.4th 15iesessseeseseseesssessessssesesseeeseseeessees 90, 91, 93 ix TABLE OF AUTHORITIES (continued) Page People v. Hudson (2006) 38 Cal4th 1002occeccccssssesesssessecssencsessessseesensaeseseseseseesseneees 64 People v. Hughes (2002) 27 Cal.4th 287 0... eeesessssssssesseesseessessssecsneessesseesneessneesneeneesns 62, 89 People v. Jackson (2009) 45 Cal4th 662 oo.esceeeesessseeseseessesesessseseessenssessesseseneeeseseeaes 86 People v. Jennings (2010) 50 Cal4th 616wncessssesseessssssesescsesssssessssescsesssseseeeespassim People v. Jones (1990) 51 Cal.3d 294 oiesesscsesssessssetsnssesesssesenssssenssssesesneeeseseeesess 52 People v. Jones (1998) 17 Cal.4th 279 ooeccesessceesesssecescsescsssesescsessesssesessseaeeeees 70, 89 People v. Jones (2013) 57 Cal4th 899 oocecsscsscsescsesssessssssesssescssssssssesssesessescsesesses 64 People v. Jurado | (2006) 38 Cal4th 72 oo. cccsssesesessesssssesessescessesescressesesces 53, 56, 58, 60 People v. Karis (1988) 46 Cal.3d 612 oececssesessssesesssssssssesesseeesesesesessesesssseessssesseeesses 76 People v. Kelly (2007) 42 Cal4th 763 oecccsscsssssesessssssssssesesesesesecssessscscscsesseeessseeees 77 People v. Kipp (1998) 18 Cal4th 349 oocssessssssssssscssssssescsessscsssessessesesceceeseeeees 70 People v. Koontz (2002) 27 Cal.4th 104] oeeecsssessssessssesesescsesesssesessssssssesseeecses 55, 89 People v. Kraft (2000) 23 Cal4th 978 oo. ccccccccscscsesesessesessesssssesscssssccssesstssesstssesssescstsaeane 53 People v. Ledesma (1987) 43 Cal.3d 171 oes eecesssstscessneersssnnnseceesnnseessnueneseeessnnceenseeesen 69 TABLE OF AUTHORITIES (continued) Page People v. Ledesma (2006) 39 Cal.4th 641 oocccssssssssessssssnssesssessessessesesesteessssseesssesseess 84 People v. Letner & Tobin (2010) 50 Cal4th 99 ooseesssssesesesseessessessssesesesesesssssseecsescscsessees 61 People v. Lewis (2008) 43 Cal.4th 415 oucccsssssessesesseteesesesssesssesseeeseses...54, 57, 63 People v. Lindberg (2008) 45 Cal.4th Lincccsessssssssscssssssssessssesesessseseeeseesees 51, 52, 53, 61 People v. Livingston (2012) 53 Cal.4th 1145 ooccccsssseeseseesesseessessesesestsnesessseseseseas 54, 62 People v. Lomax (2010) 49 Cal.4th 530 oocessssssscsscsesssssssesssesssssetesesesesesees 90, 91, 92 People v. Lopez (2013) 56 Cal.4th 1028ocecessssssessssessesesssscsesesesesessescseseevssscessscsenes 81 People v. Lucero (2000) 23 Cal.4th 692 oocccsessssssesessesssesessseesescsesesssesssesesenens 70, 93 People v. Lynch (2010) 50 Cal.4th 693 oocesssssscssscsessesssecesesesesssessecsessscssenssvees 91, 93 People v. Martinez (2009) 47 Cal.4th 399 ooesesesssssssssssestesecessescsesessssssessescscscecsssesseses 92 People v. Mayfield (1997) 14 Cal.4th 668 oooesesesscsssessescscssesesesesssessseseessscecsssesess 55, 89 People v. McCoy (2001) 25 Cal.4th 111 oeeeesssessesssssseesesssessssssssssssescssesesssessecansnene 63 People v. McCoy (2001) 25 Cal.4th L111isccecsesessesseseseeseesesescseesssssseseseeseenspassim People v. McKinnon (2011) 52 Cal-4th 610oesreseseseaeeseeseeeeeeseseacseeseeseseeseseaeanes 72 Xl TABLE OF AUTHORITIES (continued) Page People v. McLain (1988) 46 Cal.3d 97ccesscsssssssssesesesssessassnssesssesseesesesesesssenessssanesssees 71 People v. McWhorter | (2009) 47 Cal4th 318 onecececsssesesseseesssssssessseceseseseesetssscsceesceseseees 92 People v. Mendoza (2000) 24 Cal4th 130 oeccsccsessesesssesssscsssesseseesesescssecssecsesasecsessecseees 75 People v. Mendoza (2011) 52 Cal.4th 1056oececssscsssesesessssessssecsesesesesesesesees 53, 55, 58 People v. Milner (1988) 45 Cal.3d 227 oeeececessssssscsesssessesesesscseesecsessescscssssssseecsesssenseces 84 People v. Moon (2005) 37 Cal.4th Locsecesessssesesesssssesssessesesessssseseseseseaeaesee 54, 55, 57 _ People v. Morales (1989) 48 Cal.3d 527 oecccccssssessssssesesesessssssescsesessseseseseesssscsseserssssssseess 56 People v. Morales (2001) 25 Cal4th 34 ooocessesssseseseseeseseseeseseseseevscssessssssssssessesassesseas 83 People v. Morrison (2004) 34 Cal4th 698occccccsssssssssessesessesessssssessssssessssscsssssssessessssees 92 People v. Navarette (2003) 30 Cal4th 458 ooccccsessssesssessesessssesseseenecssecscsestesssesessssssnssees 82 People v. Nelson (2011) 51 Cal.4th 198 ooescsssssssssesestessssssssescecerscseecsseesbesssssssen 77 People v. Ochoa (1993) 6 Cal.4th 1199 ooccccccsesssessessssssssssesescscsessessessssseessies 52, 61 People v. Ochoa . (1998) 19 Cal.4th 353 ocscecssssssessssssesssnssesesssnsessssessesesscessssesseenssens 70 People v. Osband (1996) 13 Cal4th 622ocesssssssesesssscsssessssssessessssessssssssesssessseess 68, 69 Xii TABLE OF AUTHORITIES (continued) Page People v. Panah (2005) 35 Cal.4th 395 oecccsssesscsssesssessessssesseseesesessscecsescscensucersesnsaens 79 People v. Partida (2005) 37 Cal.4th 428oceccsessssesesesesesesesessessesesesssececscsssesssensscseevees 65 People v. Perez (1992) 2 Cal.4th L117 occcsesssssssssssssessessessssssssecsesssssvssssessesseaeers 53 People v. Prettyman (1996) 14 Cal.4th 248oeccsscsesesesssesesessssessssessssesscscecsesssscstevsaeeeees 66 People v. Price (1991) 1 Cal.4th 324 oooccsscsesesesessseseeessssssssessssseesssssesstsssseersees 76 People v. Ramos (1997) 15 Cal.4th 1133 ocecccssssssscsssesesescsssssessssssesssecevsesscersvseeeeevens 74 People v. Ramos (2004) 34 Cal.4th 494 ooccccssesesessssesssesecsessssesssssesssscersacsesssseeseeees 92 People v. Redd (2010) 48 Cal.4th 691 ooccssesssesssseseseseessesssssscseecscsserssssressseseesees 79 People v. Redmond (1969) 71 Cal.2d 745 oeeccccscsessssessesesessssssesssessesscsssssscacsssssssteneeecees 53, 61 People vy. Richardson (2008) 43 Cal.4th 959 oocceessessssssssseesesecseesessesssscessssssssecaesncssseeeees 92 People v. Rogers (1978) 21 Cal.3d 542 oecesssssssssesssssssscscsesssssessssesecsssssssssesrsarsessseceeess 65 People v. Rogers (2013) 57 Cal4th 296 oo. cccscsssssessssescseseseseesssssssssssssscssssssscstereaecesess 71 People v. Roybal (1998) 19 Cal.4th 481 oocccccssescssesessssssssesresssssscsssssseversrssesesseeneeess 86 People v. Russell (2010) 50 Cal.4th 1228 ooocccccccesssecsesesessssesessesessssvacssseseereeeespassim xiii TABLE OF AUTHORITIES (continued) Page People v. Samaniego (2009) 172 CalApp.4th 1148 ooesseseseseeesetseseneeessseesssesesseessees 64 People v. Sanchez (2003) 113 CalApp.4th 325...ecsesssessscesessneecsersesenseseseerersesceseessees 52 People v. Sanghera (2006) 139 Cal.App.4th 1567 oo... cccccesecsseseereesesssesseneetasseaeeeeeees 59, 60 People v. Sattiewhite | (2014) 59 Cal4th 446 ooeesssetceceeseeceecseeesesesesseseseeees 89, 90, 91, 92 People v. Sawyer (1967) 256 Cal.App.2d 66.00... ccsscsscerseesetctssesseetseesseseseeeeeseenes 85, 86, 87 People v. Schmeck (2005) 37 Cal4th 240 oocseecscesssesssesssesesscseeeeeseseeeseeesscacaceeeceeseeees 72 People v. Scott (1994) 9 Cal.4th 331 ic ccccsssssscssecesecneceesesessscsesceecscseeceeeesseesaeeeseeaeaees 65 People v. Scott (1997) 15 Cal4th 1188oocccesssseecsseesseneceseessesenesesseeseaeseneseneesaees 69 People v. Seijas (2005) 36 Cal4th 291 oocsesessesecsescscscseseessseeeesesesenscetscsssseseetaeee LO Peoplev. Sedeno (1974) 10 Cal.3d 703 oo.eecssesssececsscsncceteeseseeseesenacecseacasecsescceeseesenees 67 People v. Slaughter (2002) 27 Cal4th 1187occceccseseeseessesescsensseseseeeeseeenessseesseeeerseaees 86 People v. Smith (2005) 37 Cal4th 733 oecccsesssccssecssecessesessssscssesesssseseseessesessessneseeees 55 People v. Stevens (2007) 41 Cal4th 182 oocecceseeesessssesssscceessseceeerseesensaeees 54, 61, 63 People v. Streeter (2012) 54 Cal.4th 205 oeceessesccsessseceseeceseeseceeeesenseeeesees 53, 54, 57, 62 XIV TABLE OF AUTHORITIES (continued) Page People v. Swain (1996) 12 Cal4th 593 ooesecsssssssesssesessssesesessssesesseeessseseseaeees sessesseaes 68 People v. Thomas (2012) 54 Cal.4th 908 oocsessesssssssessssssessseesseseseseecsesssetesersessseserees 82 People v. Valdez (2012) 55 Cal4th 82 ooceceesssessssssssssssesessssceesecsssesseseseeesssessessesessrescnees 75 People v. Veale (2008) 160 CalApp.4th 40.0... ceccssssesessssssesesssesesssssssssesesssrcaresssves 52 People v. Verdugo (2010) 50 Cal4th 263 cccccecsssssssssssssessscseseseetssssescsseessescsess 90, 91, 92 People v. Vines (2011) 51 Cal.4th 830oeeceesceeseeseesssesesessssescssesesesescseecarscssecsress 69 Peoplev. Virgil (2011) 51 Cal.4th 1210oesesesssssessesessesssesessesssnssssessesesees 75, 76, 77 Peoplev. Visciotti (1992) 2 Cal4th Loeesecsesesenenseesessssssssssessescsssnseessssssesesesessrsscaes 83 People v. Wagner (1975) 13 Cal.3d 612 wo cccssesessssessesesessssescsessesesesseeesssseeesseseeneneaneseeees 88 People v. Walker | (1988) 47 Cal.3d 605 ooccccesessssesessssesessssssssessesessescessecsesssssesecenssecresees 84 People v. Wash (1993) 6 Cal.4th 215 oocecsssssssssesessesscnescsesesesrescsessessssessssasesenens 69, 88 People v. Webster (1991) 54 Cal.3d 4d oceeccsssssessssssessssesescesssssesssssseesssscesease 56, 57, 60 People v. Wein (1958) 50 Cal.2d 383 oocsscsssssesesssesessssssessscsssssscssscssssssscscscscacenspassim People v. Welch (1999) 20 Cal.4th 701 oo. ecescsssssstssssessssssessesessesesteseessssscsssssesssscssessesees 87 XV TABLE OF AUTHORITIES (continued) Page People v. Williams (1998) 17 Cal4th 148 ooccessessseesesssssscsssscsvecssssssssrsceasesesessesecenes 65 People v. Williams (1997) 16 Cal4th 153 oeccccssssssssesesessesesessesscsssssscsnssssesssssssssresnsenens 89 People v. Williams (2008) 43 Cal4th 584 oocsessssssesessesessesessessssscecsscscscsssscsssassassussecesees 93 People v. Williams oo (2010) 49 Cal.4th 405 ooccccccsssesesesssrsscsssssscsversscassteteeseees 56, 90, 91 People v. Williams (2013) 56 Cal4th 165 o...cceccccsssssessssessescsesessssscscsecsssesssesssaesseeresecerees 77 People v. Wilson (2005) 36 Cal.4th 309 ooo ccccccsessscesseseesesesssssssssssscsssesscsesecassneeussesevees 83 People v. Wilson (2008) 44 Cal.4th 758 oo. eccccessessessssesesscscssesecsesssscsscsssussvsrsssaeeacesesncavens 83 People v. Wright (2006) 40 Cal.4th 81 oooccssessessessessscsssssssssssssssssssssesesssencatsneeereesess 67 People v. Young (2005) 34 Cal.4th 1149 ooccccccssesessssessesssstssescsscassesseseersareasaeees 81, 83 People v. Zamudio | (2008) 43 Cal.4th 327 oo. ecccssssssessessssescsessessscsscsesesesseacsrseeeenseceeeeeeeeee 75 Price v. Superior Court (2001) 25 Cal4th 1046oicccccsccsesesssseesssecssssssssssssseesssssseassersessecass 70 Sherman vy. State (1998) 114 Nev. 998, 965 P.2d 903...escesceaeseresceeeneesseseseasenaees 76 State v. Bigbee (Tenn. 1994) 885 S.W.2d 797... eccccccsscscseseeesssessessssscstssesssesstensaees 76, 77 State v. Nesbit (Tenn. 1998) 978 S.W.2d 872.....ccccccssessessssessssssssssstessssseccsssecsenee .. 76, 77 XVI TABLE OF AUTHORITIES (continued) Page State v. Ryerson (1955) 247 Lowa 385, 73 N.W.2d 757 .o.cecccccscsssssscssssescseesesesees 85, 86, 87 Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]....68, 69, 70, 88 Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402 oo.cccccsescssssesssessesesessscssssscssssesvens 52 Verdin v. Superior Court (2008) 43 Cal.4th 1096 oo.ecssssssssssssessesessssssesessesesessersacscsestsssaesecsees 54 STATUTES Evidence Code § B52iessescscsssesescssssssesssessessssssssecseseseesscsceessseessscecssscscsssssacsssesesecevararseears 74 § 353 oe ecessssssssetsecesesescsenesesesusesescsesesescseseseseeacseseseseeseevecacavscsasscecsseanens 74, 75 Penal Code § BD oe eesssssesecsescsseeessscsesesssessesssssessensscsescscsesesesesesesessseseeeusseessessesssececasacers 1 § 182, subd. (€)(1) oo.cesesesecesescsescsecesessssessscscsesssssssesevstscesecseeeraceees 1, 67 § 186.22, subd. (D)(1).....ce eeeceeseseesessseessecesessseaesesesesseacseeatscesestetseseesess 1 § 187, SUB. (8) oo ccsesesssesscssssssscscsesessessesescecstsesesssssssesscsssassssscessesteaseets 1 §Oeesesecesseesecssssssssesssessesedesssssssseessssssceesesscssesssesscssscessseveesesaes 54 § 1902esseesseecesessesesessssssesescsesescsnssessessesssesseussssacscssecarecasscasassvansecaees 90 § 190.2, SUD. (2)(2) oo. eecesceesssssescsecsescsesesesesesesssesssessssssavsusesessscsesesaseeeans 1 § 190.2, subd. (€)(15)eeecesssssssssstescesssssecscesssssescscscecssscavessessaane 1,54 § 190.2, SUBd. (8)(22)oon. ecesesssssssssssescscsssesssecsesesssssssessssteccscavscsssnsaeeseaes 1 § 190.3 cececsccccssssescsssesscsssssecccessscessecsssssecssssnuesssusessssesesesssavecssses 75, 90, 91, 92 § 190.3, SUB. (D)oeccesesesesesesssesesesesessersesaesesesssetssssseesevesesses 72, 76, 77 § 190.4, SUDA. (€)eeeecessesseeseessesnssncstenecscenecseceeseeesessesnsstesesssestesseessen 2 § O54eeeceseseceessenesesecessesessceessscscsesesesesessessssesecsssssesacacacacaceussscssesaceecuerees 3 § 667, SUB. (A)(1) oe eeeeesesecssssssssscesssscsesesessssessesescscsessssscecscerasscatensassesaes 2 § 667, SUDA. (d) oeecesessssscceecsssesssescsesseecsssesssssssssscssesscsssavecesesecssasaetess 2 § 667.5, SUD. (D)ceeeesesssescsescsesesssesssesesessesesessssesescerssscessssscevasecarsnseeees 2 § 1170.12, SUbd. (D)...eeeccsstssesssesescsscscsssessscessssesssssscsssscevssesesesnsansees 2 § 1170.12, subd. (C)(2)(A) uu ecccescsesesesesseesssssssssssesrscssessssssscscacasesseeearenes 2 § 1239, SUB. (D)oeeccesessesesecessssssssescsesesesesessessessssscsessssscesscsesssvsnsnesecees 3 § 12022.53, SUD. (A) oo... eeccsssssessesssesecesssesssesescscssssescecscecsceusssssssesrensueeees 1 § 12022.53, subd. (€)(1)....ccccsecescsesesecescsessecesssessecssscesesescsssssssssvanessecens 1 XVii TABLE OF AUTHORITIES (continued) Page Statutes 1998, ch. 629, § Qeecccssssssscssssscssssssecesssssssssesesssesssssstssssssessesesensesseseee 54 CONSTITUTIONAL PROVISIONS California Constitution Article 1, § 15 .cccccescscessesessessesessesseseeseseenescsneseeneeseeneneseneeeseensaseaseteneeneaes 68 United States Constitution Sixth AMENdMENt......cececesceccesseseserscasssssessesecesecesossesscesens“sestesesesees 68 Eighth Amendment ...0......:ccsecesescsssccecesseseeeesenesseesseeeeeseeeeceasenseseeensaeeees 62 Fourteenth Amendment ..........ccleee eeeececcceceersescessssssssssecscesssesessessees 83 OTHER AUTHORITIES CALCRIM a NO. 400... cc ecccccscsscssessesssssecescccesccescssesseessecseeassnessccassacecetessesenesenseeeseespassim NO. 4Ovceccelccecccscccsscsecccesscccsscsesscsssssscssecessescesesssesseccesnesseaccsscesseeeseeeecs 66 NO. 403... eccccsecscccssscsccecsscscsssscccccsseccssscessscessecesesssecessesseesesesesscessaceeseceses 66 NO. 52 Liceeccccccscssccsscessccssccsssscssescessscsscsssssecsssecescssscesseeessaaesesseeessesesasoes 51, 62 NO. 563 .......cccsccesssccsseccececessccccscecscsscccecsssnsccaccesesscceecssauecececeessesvsseesesssceeceree 67 NO. 728... cecccccesssscescscsssccsscccescstscseesnccesscsecesssscccssssessscessscesececsessscssasecsasesees 51 NO. 766.0... eessececesesecceeseseeseneeeceeseeeessessscssseeesssesesssussssseseasssecsseeseosssseaseenees 84 XVIil © STATEMENT OF THE CASE On November1, 2007, the Orange County District Attorney filed an information charging Johnson with the murderof Scott Miller in violation of Penal Code! section 187, subdivision (a), (count 1); conspiracy to commit murderin violation of section 182, subdivision (a)(1), (count 2); and accessory after the fact in violation of section 32 (count 3).? The information alleged as special circumstancesthat Johnson was previously convicted of murder within the meaning of section 190.2, subdivision (a)(2); the murder was committed by meansoflying in wait within the meaning of section 190.2, subdivision (a)(15); and the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning ofsection 190.2, subdivision (a)(22).2 (1 CT 54-57.) _ The information alleged that all counts were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1); and a principal dischargeda firearm in the commission of counts | and 2, causing death within the meaning of section 12022.53, subdivisions (d) and (e)(1). It was ' All further statutory references are to the Penal Code unless noted otherwise. * The information alleged nine overt acts committed in furtherance of the conspiracy. (1 CT 55-56.) 3 Johnson’s co-defendants, Michael Allan Lamb and Jacob Rump, were jointly tried in a separate trial in Orange County Superior Court case no. 03CF0441. They wereboth convicted of the special circumstance murder and conspiracy with additional counts and enhancements. Lamb received the death penalty, whereas Rump wassentenced to three terms of life without possibility of parole plus 70 yearsto life and a determinate term of 13 years in prison. Lamb’s automatic appeal is currently pending before this Court in Case No. $166168. Rump’s judgment was affirmed in Court ofAppeal Case No. G039421 on October 22, 2009, and review was denied in Case No. $178438 on February 10, 2010. further alleged that Johnson was previously convicted of three serious or violent felonies within the meaning of sections 667, subdivision (d), and 1170.12, subdivisions (b) and (c)(2)(A), three serious felonies within the meaning of section 667, subdivision (a)(1), and one felony for which he served a prison term within the meaning of section 667.5, subdivision (b).* (1 CT 56-59.) On December 13, 2007, the prosecution noticed appellantofits intent to seek the death penalty. (1 CT 61.) On October 6, 2009, a jury was sworn to try the case. (15 CT 3810.) On October 14, 2009, the jury found Johnson guilty ofall counts as charged in the information. The jury set the murderin thefirst degree, found the gang and lying-in-wait special circumstancestrue, and foundall firearm and gang enhancements true. (17 CT 4425-4434, 4530-4532; 5 RT 2071-2078.) | On October 19, 2009, Johnson waivedhis right to a jury on the prior- murder special circumstance. (18 CT 4571; 6 RT 2083-2085.) Thereafter, the special circumstance was foundtrue in a court trial, the jury was advised ofthat finding, and the penalty phase commenced. (18 CT 4571- 4573; 6 RT 2085-2086, 2089-2094.) On October 29, 2009, the jury rendered a verdict finding death to be the appropriate penalty. (19 CT 4991; 9 RT 2812-2815.) Subsequently, the trial court granted the prosecutor’s motion to dismiss the remaining prior conviction allegations. (20 CT 5050-5051; 9 RT 2821-2822.) ~ On November23, 2009, the trial court considered and denied an automatic motion to modify the verdict pursuantto section 190.4, * The prior-murder special circumstance and prior conviction allegations were bifurcated for purposesoftrial. (15 CT 3793; 2 RT 1030- 1032.) subdivision (e). (20 CT 5051-5057; 9 RT 2822-2830.) On the samedate, the trial court sentenced Johnsonto death.> (20 CT 5058, 5095-5096, 5083; 9 RT 2832-2836.) This appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS A. Guilt Phase 1. Prosecution Evidence a. Background Public Enemy Number 1 (also known as “PENI Death Squad”and hereafter referred to as “PENI”) is a white supremacist gang formed in 1986. (5 RT 1876-1877, 1881-1882.) Donald “Popeye” Mazza, Devlin Stringfellow, Nick Rizzo and Scott “Scottish” Miller were key founders of PENI. (4 RT 1530; 5 RT 1877.) Mazza has been the undisputed leader of PENIsince the early 1990’s. (5 RT 1877-1878.) ~ Johnson was previously associated with the Nazi Low Riders, another white supremacist gang. (5 RT 1916-1917.) In 2001 or 2002, Johnson riled the Nazi Low Riders dueto his unwillingness to carry out an orderto kill Joseph Govey.° (5 RT 1916-1917.) To redeem himself, Johnson transitioned to PENI in March of 2002. (5 RT 1517.) Johnson“pretty much walked in” to PENI as a memberin good standing. (5 RT 1917.) Michael Lamb and Jacob Rumpare also PENI gang members. (5 RT 1902-1906.) Tanya Hinsonis a female associate ofPENI. (5 RT 1884.) ° Thetrial court stayed imposition of sentence on counts 2 and 3 and all enhancements pursuant to section 654 since the court relied on the facts underlying those counts and enhancementsin its denial of the automatic motion to modify the verdict. (20 CT 5059, 5095.) ° Johnsontold a friend, Donald McLachlan about his problems with the Nazi Low Riders and the Aryan Brotherhood. (4 RT 1577.) By the midto late 1990’s, Miller was no longerin “the main mix” of PENI, was not well liked, and had been marginalized within the gang’s structure. (5 RT 1888.) Other PENI membersceased associating with Miller. (5 RT 1888.) In February of 2001, Fox 11 Newsin Southern California broadcasted a two-segmentinterview with Miller. (5 RT 1894.) In the interview, Miller described how PENI sold and previously manufactured methamphetamine as a source of money, and hediscussed the gang’s use ofviolence.’ (I Supp. CT 99-108.) Miller stated: “In this business it’s guns, speed, violence and sex. That’s whatit’s all about.” (1 Supp. CT 104) Despite the television station’s attempts to disguise him, Miller’s identity was obvious from his tattoos, his mannerisms, objects around him andhis pit bull which werevisible in the news segments. (4 RT 1614- 1615.) The interview wasaired at the time Mazza and Rizzo were ontrial for murder in Orange County, which was “very bad timing for them.” (5 RT 1896.) Asa result of the Fox broadcast, the PENI leadership put “‘a green light on” Miller, marking him for death. (5 RT 1896.) Initially, no one had the courage to enforce it. (4 RT 1584-1585.) Shortly before he was killed in March of 2002, the Costa Mesa Police Departmentlearned of the PENI threat against Miller’s life and attempted to contact him. (5 RT 1890, 1894-1895.) Lamb and Rumphadrecently been paroled from state prison. (5 RT 1902-1906.) Miller expressed | concerns abouthis safety to his former girlfriend, Marnie Simmons. (4 RT 1537.) In March of 2002, Christina Hugheslived at 1800 West Gramercy in Anaheim. (3 RT 1395-1396.) A walkway led from Hughes’ apartment to a 7 A DVD ofboth segments wasplayedfor the jury. (5 RT 1894.) back alleyway and flood control channel. (3 RT 1398.) Several weeks prior to Miller’s murder, Hughes met Hinson.® (3 RT 1399.) Thereafter, Lamband Rumpbegan frequenting Hughes’ apartment on a regularbasis and“almost took over” her home. (3 RT 1401-1402.) b. The Murder Onthe evening of March8, 2002,” Johnson attended a birthday party for his cousin, John Raphoon,in Costa Mesa. (4 RT 1542-1543, 1557.) Miller and Johnson’sfriend, Andrea Metzger, werealso at the party. (4 RT 1539-1545.) Johnson and Miller spoke to each other, and Metzger overheard them joking about Miller keeping “his guard up.”'? (4 RT 1545- 1548.) Between 8:30 and 9:00 p.m., Johnson and Metzgerleft the party in Johnson’struck, and drove to a parking lot where they had sex. (4 RT 1549-1552.) Johnson then dropped Metzgeroff at a friend’s house and returnedto the party. (4 RT 1550.) oO Shirley Williams, who was friends with Johnson and had been dating Miller, arrived at Raphoon’s party around 10:00 p.m. (4 RT 1555-1558.) Williams saw Miller there. (4 RT 1558.) Fifteen to twenty minuteslater, Williamsleft with a friend to get drugs in Santa Ana. (4 RT 1558-1559.) Miller was no longerat the party when Williams returned. (4 RT 1559- 1560.) At approximately 10:30 p.m., Miller left a voicemail message on Simmons’ cell phone. (4 RT 1531-1532.) Miller sounded concerned, and ® Hughes and Hinson had a mutualfriend who was a PENIassociate. (3 RT 1396-1398.) ? All further date references occurredin 2002, unless noted otherwise. 0 Metzger previously testified about the conversation, but did not recall her prior testimony by the time of Johnson’strial. (4 RT 1539-1541, 1548.) there was someonein the backgroundtalking to him who soundedlike Johnson. (4 RT 1532-1536.) That evening, Hughes received a phonecall from Lamb askingif Hinson wasat the apartment. (3 RT 1402.) When Hughessaid Hinson was not there, Lamb told Hughesthat is was important that Hinson call him whenshe gets home. (3 RT 1402-1403.) When Hinsonarrived, Hughes told her that she did not want anyoneoverthat night. (3 RT 1403.) Later, while taking a break from vacuumingthe upperfloor of the apartment, Hughes went downstairs and saw Hinson there with Lamb and Rump. (3 RT 1403; 4 RT 1601.) Hughestold them to get out. 3 RT 1403; 4 RT 1601.) Hinson said they were leaving, and Hughes went back upstairs. (3 RT 1404; 4 RT 1601.) Shortly thereafter, Hughes heard a gunshot. (3 RT 1405; 4 RT 1601.) Hughes froze and checked on her two year old son. (3 RT 1405.) | Luis Mauras, wholived in a town homefacing the flood control channel and alleyway, also heard the gunshot at approximately 11:30 p.m. (3 RT 1388-1391.) Fifteen to twenty seconds later, Mauras heard the sound of screechingtires. (3 RT 1391.) The gunshot and screeching appeared to be coming from the alleyway. (3 RT 1391, 1393.) Hughesexited her apartment between 11:30 and 11:35 p.m. with a friend and walked to the alleyway. (3 RT 1406.) There, Hughes observed Miller’s body lying on the ground with a large amountofblood streaming from it. (3 RT 1406-1407.) Meanwhile, Johnson returned to Raphoon’sparty. (4 RT 1559-1560.) Johnson and Williams stayed until about 1:00 a.m.. (4 RT 1560.) After leaving the party, they got a hotel room and spent most ofthe weekend together. (4 RT 1560-1561.) _ Later that day, March 9, Johnson called Simmons. (4 RT 1536-1537.) Johnson asked Simmonsif she had heard what happened,told her that “Scott was no longer with us,” and said if she needed anything “that he would be there for” her. (4 RT 1537.) Subsequently, Johnson spoke to McLachlan"! about the murder while they werestaying together in a Huntington Beach condominium. (4RT 1580-1581.) Johnson told McLachlan that he used drugsas a ploy to get Miller to go with him from Raphoon’s party to Anaheim.’? (4 RT 1578- 1579, 1585.) Johnson said he was walking next to Miller in the alley right before the shooting, they heard footsteps coming from behind, Miller asked Johnson, “Are those PENI guys,” and Miller appeared resignedto the fact that something was going to happen to him. (4 RT 1578, 1581.) Johnson told McLachlan that Lambpulled the trigger, he was upset ‘that Lamb shot Miller in the back of the head, and he had words with Lamb aboutthat afterwards. (4 RT 1582-1583.) Johnson felt Miller should have been shotin the face after being told, “[Y]ou had a good run, you ran afoul of the rules, it is time to go.” (4 RT 1582.) Johnson explained that Miller waskilled because of the Fox interview and “his actions...in the neighborhood.”'? (4 RT 1583.) c. Investigation Officers from the Anaheim Police Departmentarrived at the murder scene 20 to 25 minutesafter the shooting. (3 RT 1392.) Miller was lying facedown adjacent to a dumpster alcovein the alleyway. (3 RT 1412- 1414.) A stream of blood from Miller’s head wastrailing towards a drain. (3 RT 1414-1415.) Underneath Miller’s body, there was a bloody baseball " McLachlan was on parole for a second degree burglary conviction at the time oftrial, and had additional prior felony convictions. (4 RT 1572-1573.) Miller was addicted to drugsat the time. (4 RT 1585.) BinJanuary of 2007, McLachlan told Detective Robert Blazek what he knew about Miller’s murder. (4 RT 1575, 1583-1584.) As result, McLachlan wasstabbed in Costa Mesa. (4 RT 1575-1576.) cap and a soda can. (3 RT 1419-1421, 1430.) A nine-millimeter Luger casing was found on a concrete median approximately 15 feet from Miller’s body. (3 RT 1412-1413, 1430.) There were tire impressionsin the blood from a vehicle traveling eastward away from the body. (3 RT 1415, 1422- 1423.) Miller had suffered a gunshot woundto the right occipital area of the back of his head. (3 RT 1439-1440, 1446.) The bullet lacerated the cerebrum and cerebellum ofthe brain and lodged outside Miller’s right ear canal after being deflected to the right. (3 RT 1440-1445, 1447-1448.) The absenceof burning,singing, stippling or soot on the entrance wound showedthe barrel of the gun was somedistance from Miller’s head at the time it was fired. (3 RT 1443-1444, 1447.) _ Miller most likely lost consciousness immediately with death occurring minutes later. (3 RT 1444-1446.) Miller had fresh abrasions on his face which were consistent with his head striking the pavement. (3 RT 1439-1440, 1446.) | Onthe afternoon ofMarch 11, Sergeant Michael Helmick was surveilling a stolen car parkedin an alley behind an apartment complex on South Melrose Street in Anaheim. (3 RT 1451-1455.) Helmick wasin plain clothes and driving an unmarked vehicle. (3 RT 1451.) He was being assisted by Officer Brian Santy who waspiloting “Angel,” an Anaheim Police Departmenthelicopter. (3 RT 1454, 1473-1475.) - Rumpenteredthe stolen car, drove out of the alley and double parked on Melrose. (3 RT 1455-1456, 1471, 1480; 5 RT 1905.) Lamb then emerged from the apartment complex, walked to the car and entered the passengerside of the vehicle. (3 RT 1457, 1470, 1477; 5 RT 1903.) While he wasparked and waiting for Lamb, Rump kept looking in his rear-view mirror at Helmick. (3 RT 1457.) As soon as Lambgotin the car, Rump made a quick U-turn. (3 RT 1458.) Helmick attempted to block Rump with his vehicle. (3 RT 1458.) However, Rump swerved around Helmick, driving over the curb, and continued southbound down Melrose. (3 RT 1458-1459.) Rumpthen led Helmick and Officer Danny Allen (who had responded for assistance) on a high speed chase. (3 RT 1459-1461.) The officers lost sight of the stolen car after Rump turned onto Center Street. (3 RT 1461- 1462.) Santy, who remained overheadin the helicopter, observed Rump and Lamb abandonthestolen car and flee into a nearby apartment complex. (3 RT 1462-1464, 1475.) Helmick and Allen followed downa path to a two- story apartment building behind which Rump and Lambhad run. (3 RT 1462-1464.) Allen, who hadhis back to the apartments, was wearing a black police raid jacket which read “Police” in yellow on the back with a smaller “Police” in yellow on the front. (3 RT 1465.) As Allen and Helmick approachedthestairwell to the building, Lamb fired two shots at Helmick from an upper apartment balcony. (3 RT 1465- 1466, 1470, 1477; 5 RT 1903.) Santy warned Helmick and Allen notto go upstairs since Lamb remained ina crouchedposition with a stainless steel handgunpointedat the stairs. (3 RT 1467-1468, 1478.) Helmick and Allen ran for cover. (3 RT 1467-1468, 1478.) Upon reaching a point of cover, Helmick repeatedly yelled, “Police officer, put your hands up and come on down.” (3 RT 1468-1469.) - Meanwhile, Lamb wasfiddling with the gun at waist level. (3 RT 1479.) Thirty to sixty secondslater, Lamb tossed the gun over the balcony railing into a raised planter. (3 RT 1469, 1479-1480.) . Pursuant to Helmick’s orders, Lamb then came downstairs, got down on the ground, crawled to him and wastaken into custody. (3 RT 1470.) Subsequently, Rump followedthe officers’ commands to come downstairs and wastaken into custody. (3 RT 1470-1471, 1479.) The gun tossed by Lambintothe planter was stainlesssteel Browning semiautomatic handgun. (3 RT 1483-1485.) A triangular- shaped white bandannawastied in a knot aroundthe grip of the gun. (3 RT 1485-1486.) The gun wasin a “ready to fire” position with the safety turned off, a loaded magazine of ammunition and the hammer back. (3 RT 1486.) However, a nine millimeter spent casing was jammedin the chamber. (3 RT 1484-1487.) James Conley, a forensic services supervisor, explained that semiautomatic guns automatically eject expended casingsafter a bulletis fired, causing the slide to come forward to chambera new live roundof ammunition and cock the gunto fire again. (3 CT 1481-1482.) Since the gun wasloaded with a magazine of ammunition, Conley opinedthat something — mostlikely the bandana — prevented the slide from ejecting the empty cartridge and chambering a new round.'* (3 RT 1488-1489.) In 2007, Rocky Edwards, a forensic firearm and tool mark examiner, test-fired Lamb’s gun and compared the expended casing with the casing found near Miller’s body. (5 RT 1807-1809.) Based on a microscopic comparison ofthe two, Edwards concluded that the expendedcartridge from the murderscene wasfired by Lamb’s gun. (5 RT 1808-1809.) d. Johnson’s Prior Testimony from the Lamb/RumpTrial | After being of advisedofhis right against self-incrimination and declining thetrial court’s offer to appoint an attorney for him, Johnson elected to testify on Lamb’s behalfin the guilt and penalty phases of the The gun had a capacity for 14 bullets in the magazine plus onein the chamber. (5 RT 1807-1808.) 10 2007 Lamb/Rumptrial. (4 RT 1604-1607, 1693-1694.) A redacted transcript of Johnson’s prior testimony wasreadto the jury. (4 RT 1602- 1606.) ' In the guilt phase, Johnsontestified that he went to Raphoon’s party between 4:00 and 4:30 p.m. on March8;heleft the party with Miller to get heroin in Anaheim between 8:00 and 10:00 p.m.; he drove past a strip mall where Miller used a pay phone;he told Miller to hurry; he then drove Miller to.an alley and parkedhis truck; as they were walking downthealley towards an apartment complex, he reachedinto his waistband, pulled out a gun and “blasted” Miller; he ran back to his truck; and he drove backto the party. (4 RT 1608, 1611-1617.) Johnson testified that he was “pretty perturbed with” and “[rleally had it with” Miller due to a problem related to somegirls as well as the Fox interview, and had been madat Miller for some time. (4 RT 1612-1617.) Johnson explainedthat, despite the network’s attempts to disguise Miller, “everybody” knew it was him. (4 RT 1614-1615.) Raphoon’s party was the first time Johnson had seen Miller since the broadcasting of the interview. (4 RT 1616.) | Johnsontestified that, when he was driving Miller to Anaheim, he knew Miller would cease to exist before the night was over, but did not know exactly when it would happen. (4 RT 1662-1663.) When asked how it felt to be seated next to another human being he knew wasgoingto die, Johnsonreplied,“I mean no feelings. He did wrong, hepaid his price.” (4 RT 1665.) Johnson claimed that he ran into Lambat a bar in Anaheim the following evening, gave Lamb the murder weaponafter having “a quick beer,” and told Lamb the gun wasstolen. (4 RT 1622-1624.) Johnson had previously told Lamb’s defense investigator, Gail Geco, that he gave Lamb 11 the gun because “Mexican gang members” were shootingat Lambthe prior evening and Lamb needed a weapon. (4 RT 1654.) | Johnson claimed he traded drugs for the gun about six monthsprior to the murder, but refused to identify who sold him the gun. (4 RT 1656- 1657.) Johnsontestified that he had kept the gun in a hiding place which he refused to reveal, and that he had accessto that location from state prison through phone contacts. (4 RT 1658-1659.) After Johnsontestified that the murder weaponhad onesafety on the left side and held eleven bullets, the ‘prosecutor asked whether he was looking at Lamb and motioning with his fingers during this question. (4 RT 1660-1661.) Johnson then said he did not know how maysafeties were on the gun. (4 RT 1661.) Johnson denied telling anyone that Lamb and Rumpwereinvolved in the murder. (4 RT 1680-1681.) However, he admitted that he told a defense investigator, “They got out of their vehicles and scored,”in relation to the Miller shooting.’? (4 RT 1681-1682.) Johnson and Joseph Govey were cellmates at one time. (4 RT 1637.) Johnson wasassaulted in prison, whichleft a scar that ran from the center of his spine acrossthe right side of his neck to just below the ear. (4 RT 1628-1629.) Johnson denied that “Cornfed,” a “shotcaller” for the Aryan Brotherhood, ordered him to kill Govey and Miller presented an opportunity to get himself “out ofthe hat” by setting up his two ___}Johnsonwaited until 2006 to make a statement about the murder to Lamb’sinvestigator, Gail Geco. (4 RT 1629-1631.) Johnsontestified that he had previously talked to Rump’s investigator about the murderafter receiving the investigator’s number from “mutual friends” who were “the white people.” (4 RT 1647-1649.) However, he told Gecothat he never told anyone other than her of his involvementin Miller’s murder. (4 RT 1651.) When Detective Blazek tried to interview him in October of 2002, Johnsontold him that he had nothing to say to him about Miller’s murder. (4 RT 1633.) 12 “homeboys”to kill Miller. (4 RT 1637-1639.) Johnson deniedtelling Geco duringhis interview about Miller’s murderthat “[t]his should clear the books.” (4 RT 1665-1666.) At thetimehetestified at the Lamb/Rumptrial, Johnson wasserving a 45 yearsto life prison sentence and had not yet beenarrested for or charged with Miller’s murder. (4 RT 1627.) In 2004, Johnson and Rump were cellmates in the county jail facility while Rump was awaitingtrial for the Miller murder and Johnson waswaiting to enter a plea in another case. (4 RT 1639-1640.) Johnson, Rump and Lamb smiled at and were friendly with each otherat a hearing in May of 2007. (4 RT 1640-1642.) Johnson refused to answer any questions about gangs, but explained the meaning of numeroustattoos on his body which included swastikas and “white pride.” (4 RT 1625-1628.) Johnson admitted being in a photographs with white supremacist gang references and “PENI”overhis head. (4 RT 1635, 1659-1660.) After his first court appearance following his arrest on this case, Johnson turned to the audience and gave a “Heil Hitler salute.” (4 RT 1631.) In custody, Johnson wroteletters referring to the court as “the house ofJews,” which meant “a fucked-up system.” (4 RT1631-1632.) In the penalty phase, Johnsonessentially repeated his guilt phase testimony. (4 RT 1694-1725.) He elaborated that Miller “was a dead man” after the Fox interview because he was “giving up information that — that was detrimental to gang activity” of PENI, and explained that Miller dishonored his gang and divulgedsecrets to its enemies, including the court system. (4 RT 1701, 1767-1768.) Johnson stated that he “take[s] care of business” and would kill “anyonelike [Miller] that doesn’t abide by the rules.” (4 RT 1701-1703.) Johnson admitted that he and Lamb were previously housed in the same county facility in 2006, where they were “dayroom partners” for about 30 days. (4 RT 1763-1765.) 13 e. Gang Expert Testimony Eric Kraus, a parole agent with the California Department of Corrections, was assigned to the Santa Anaparole office and specialized in supervising white supremacist parolees. (3 RT 1490-1493.) Kraus ran the Skinhead Information Network, an organization that met on a monthly basis to share intelligence regarding white supremacist gang members. (3 RT 1493-1494.) Kraustestified that only a small percentageofthe overall prison population affiliates with gangs, and it is not necessary to join a gang to survive in prison. (3 RT 1494.) Moreover, the Department of Corrections assists prisoners who wantto leave gangs through “debriefing” and can provide special housing for their safety for the remainderoftheir prison sentences. (3 RT 1495-1496.) Kraus knew Johnson since 2000. (3 RT 1496.) At oneoftheir early meetings, Johnson told Kraus that he was ordered to assault Govey while they were prison cellmates, but refused because they were friends andhe did not wanta third “strike” conviction. (3 RT 1501-1502.) In early 2001, Johnson was formally assigned to Kraus’s specialized parole caseload. (3 RT 1496-1497.) Kraus supervised Johnson for approximately three years. (3 RT 1497.) During that time, Johnson was a documented associate of the Nazi Low Riders. (3 RT 1503-1504.) On May24, 2001, Kraus arrested Johnson on a parole violation. (3 RT 1497-1499.) One week later, Kraus learned that Johnson wasassaulted in Chino State Prison. (3 RT 1499.) Another prisoner had cut Johnson in the back of the neck with a razor while they were in one ofthe prison yards. (3 RT 1499.) Johnson requested that Kraus come speak to him at the | - prison. (3 RT 1499.) Kraus and Costa Mesa Lieutenant Clay Epperson met with Johnson at Chino State Prison. (3 RT 1499-1500.) Johnson discussed the razor attack, 14 showed Krauss his wound and expressed concernsforhis safety.'° (3 RT 1501.) Johnson said he wasassaulted “because he refused to follow a green light order” from an unspecified source to kill Govey. (3 RT 1518-1519.) Kraustestified that such an order could only come from “a shotcaller ofthe Aryan Brotherhood or Nazi Low Riders Criminal Street gang.” (3 RT 15 19.) Whenpressed, Johnson indicated that his current gangaffiliation was with PENI,“if anything.”'’ (3 RT 1503-1504.) Epperson also hadtraining, experience and expertise in criminalstreet gangs, including white supremacist gangs in Costa Mesa. (5 RT 1851- 1858.) Eppersontestified that white supremacist gangsare notturf- oriented like moststreet gangs.'® (5 RT 1858-1859.) Instead, hatred of non-whites, Jews, law enforcement andthe criminal justice system binds white supremacists together and provides group cohesion. (5 RT 1860, 1873-1874.) White supremacists tend to prey on their own community with self-serving crimes that benefit them andtheir gang, rather than hate crimes. (5 RT 1859.) Tattoos are extremely important and a matterofpride in white supremacist gang culture. (5 RT 1866.) White supremacists have adopted Nazi and anarchy symbols to represent themselves. (5 RT 1866-1867.) '© Johnsonalso apologized to Kraus for previously stating he would not cooperate with him and promised to have a good workingrelationship with him. (3 RT 1500-1501.) '” Krauss had received information confirming that Johnson was currently a member of PENI, which included correspondence from Johnson identifying himself with PENI. (3 RT 1504-1505.) '8 Epperson explainedthat, unlike minority communities, white supremacists are not forced into a gang by neighborhood pressures or family history. Membership in a white supremacist gangis largely a matter of choice. (5 RT 1870.) Epperson agreed with Krausthat not everyone whogoesto prison has to join a gang. (5 RT 1863.) 15 Membership in white supremacist gangsis typically gained through the commission ofcrimes outside or within the prison system. (5 RT 1863- 1864.) Falsely claiming to be a member of a white supremacist gang would subject an individualto serious consequences from the gang such as being beaten or killed. (5 RT 1864.) _ White supremacist gangs have a hierarchy where one’s status is _ elevated by committing notable acts ofviolence for the benefit of the gang or himself, by engaging in criminal enterprises to earn moneyfor the gang, and by serving high ranking members. (5 RT 1870-1871.) Gang member status ranges between being a “hanger-on”and a “shot-caller,” based on the amount of crime and violence the individual has contributed to the gang. (5 RT 1864-1865, 1870-1871.) Thus,it is expected that criminal successes will be boasted and knownto others in the gang. (5 RT 1874-1875.) Respectis of great importance in white supremacist gang culture. (5 RT 1865.) Respect is earned by standing up for the gang through criminal activity and violence. (5 RT 1865.) Perceived disrespect from civilians or other gang membersis likewise met with violence. (5 RT 1865-1 866.) Backing up fellow gang membersand witness intimidation are also important in white supremacist gang culture. (5 RT 1873-1874.) White supremacists have a disciplinary mechanism for members who fail to do a task ordered by a higher ranking member, embarrass the gang, show weakness, do not stand up for the gang, or run away from a fight. (5 RT 1871.) An act which is viewedas disrespectful of the gang’s leadership would require the highest sanction which could be death. (5 RT 1872.) Paybackfor an act of disrespect might be immediate or occur weeks, monthsoryearslater. (5 RT 1872.) 16 The Aryan Brotherhood(also referred to as “AB”or “the Brand”) is the oldest white supremacist gang in the California prison system.” (5 RT 1867.) Modeled after the Mexican Mafia, the Aryan Brotherhoodis well organized, successful in criminal enterprises, able to inflict violence, and “call[s] shots for mostall other white racist gangs.” (5 RT 1867-1868.) PENIwas formed in 1986 by followers of a punk rock band and transitioned into a white supremacist street and prison gang. (5 RT 1876- 1877.) Mazza, Stringfellow, Rizzo and Miller were key founders of PENI. (5 RT 1877.) At the time, Mazza, Stringfellow and Rizzo were also Aryan Brotherhoodassociates.”” (5 RT 1878.) Mazza has been the undisputed leader ofPENI since the early 1990’s. (5 RT 1877-1878.) Mazza intended to run PENI as a money-making operation and become a memberofthe Aryan Brotherhood — both ofwhich he has accomplished. (5 RT 1878.) In 1996, the Nazi Low Riders which had been the most prominent white supremacist gang below the Aryan Brotherhood saw their powerstart to decline due to events in the state prison system. (5 RT 1880-1881.) PENT rosetofill the power vacuum and grew rapidly.” (5 RT 1881.) By March of 2002, PENI had approximately 200 members. (5 RT 1881.) PENIrefers to itself as Public Enemy Number 1, PDS and PENI Death Squad. (5 RT 1881.) PENIusesracist hate symbols such as the number14 to represent the 14-wordphrase, “We must secure the existence of our race and the future for white children,” and the number 88 which represents the letters HH for Heil Hitler as well as David Lande’s 88 - Tn August of 2009, there were approximately 42 validated members and 150 validated associates of the Aryan Brotherhoodin the state prison system. (5 RT 1819-1820.) 204 number ofPENI gang members have been validated as Aryan Brotherhoodassociates within the prison system. (5 RT 1880.) 21 The Nazi Low Riders now tend to blend with PENI, and the two gangs worktogether. (5 RT 1859.) 17 precepts upon which white supremacist ideology is based. (5 RT 1881- 1886.) PENI targets law enforcement, prison officials and prosecutors for violence. (5 RT 1883.) Its members have been arrested with personal identifying information of law enforcement personnel. (5 RT 1883-1884.) PENI’s money-making activities include identity theft, passing fraudulent checks and drug trafficking. (5 RT 1882-1883, 1901.) In its criminal enterprises, PENI uses female associates as well as individuals who are manipulated throughillegal drugsor intimidation. (5 RT 1875-1876.) Women,referred to as “twists” and “twirls,” are frequently used for communication purposes. (5 RT 1822.) Eppersontestified that PENI’s central theme “would be self-serving thuggery and violence,” “the use of violence is the measure of a man within PENI,”and “[v]iolence is their stock and trade.” (5 RT 1886.) In light of its primary activities and prior criminal convictions of its members, Epperson opined that PENI was a criminal street gang within the statutory definition of the Penal Code. (5 RT 1896-1901.) Prior to 2002, Johnson was a memberofthe Nazi Low Riders in good standing. (5 RT 1916-1917.) However, Johnson got into trouble with the Nazi Low Riders due to his unwillingness to carry out the orderto kill Govey whofell out of favor with the Aryan Brotherhood. (5 RT 1823, 1916-1917.) Johnson wasable extricate himself from the situation by transitioning from the Nazi Low Riders to PENI in March of 2002. (5 RT 1917.) Johnson “pretty much walked in” to PENI with good standing despite his prior problems with the Nazi Low Riders. (5 RT 1917.) ’ Based on prior personal contacts with Johnson, the Chino State Prison interview, discussions with other law enforcementofficers, a prior conviction for dissuading a witness for the benefit of a street gang, Johnson’s prior testimony from the Lamb/Rumptrial, Johnson’s “House of 18 Jews” statement and HeilHitler salute in open court, Johnson’s prior reference to Mazza as his employer, recorded phonecalls in which Johnson sent out orders on behalf of PENI, andhis multiple white supremacist and PENItattoos, Epperson concludedthat Johnson was a memberofPENIin March of 2002. (5 RT 1907-1911, 1917.) Johnson’s tattoos include an “SS”bolt on his neck, “white” and “pride” on the back of his arms, demon figures around a swastika on both legs, a swastika on his stomach, and “Puck C.D.C.”on thebackofhis head.” (5 RT 1911-1916.) By the midto late 1990’s, Miller was no longer“in the main mix” of PENI, wasdistanced and not well liked by other members, and had been marginalized within the gang’s structure. (5 RT 1888.) Miller’s Fox news interview wasaired in back-to-back segments in February of 2001 when Mazzaand Rizzo were ontrial for conspiracy to commit murder. (5 RT 1894-1896.) As a result of the broadcast andits “very bad timing,” the PENIleadership putout “a green light on” Miller’s life. (5 RT 1896.) In March of 2002, Lamb and Rump wereactive PENI members. (5 RT.1902-1906.) Prior to Miller’s murder, Lamb and Rump wereparoled from prison. Shortly before the shooting, the Costa MesaPolice Departmentlearned of the PENI threat against Miller’slife as a result of the Fox news segments, and attempted to contact him. (5 RT 1890, 1894- 1895.) * Orange County Sheriff's Deputy Seth Tunstall testified how inmates’ incoming and outgoing phonecalls and mail are screened and recordedat the Theo Lacey county jail facility. (5 RT 1810-1817.) Tunstall also explained how inmates use “kites” to communicate with each otherin writing within the jail system and use the phone system (including three- *?Johnson already had substantial white supremacist tattoos prior to going to prison in 1989. (5 RT 1918.) 19 way calls) to pass information and messagesto people on the street. (5 RT 1820-1821.) On May18, 2007, four days after opening statements in the Lamb/Rumptrial, the jail monitored a phone call between Johnson and Rebecca Mangan, who was Lamb’s formergirlfriend. (5 RT 1824-1828; 16 CT 4199.) They discussed a local newsarticle reporting that Lamb’s attorney had referred to Johnson as “the boogie man,” which Johnson raved about as great publicity. (16 CT 4200-4203.) Johnson told Mangan that Govey had been stabbed at Chino State Prison as a result of an “ongoing thing with the ... Big Giant Heads” and “the BRAND,” commenting that it should “be a done deal now”after 15 years.” (16 CT 4204-4205.) Johnsonalso said he hasto “be moving and “make things happen[.]” (16 CT 4206.) On June 5, 2007,the jail monitored a call between JohnsonandJill Walker. (5 RT 1830; 16 CT 4208.) Johnson told Walker that he wanted fingers broken, handscut off, hands torn up and teeth knockedoutin reference to “a rat” who was“trying to tell on [him] for this case right here.” (16 CT 4209-4210.) Johnson further stated that he was “going to go on a mission and stab somebody.” (16 CT 4210.) . On September 11, 2009, the jail monitored another phonecall between Johnson and Mangan. (5 RT 1831-1832; 16 CT 4212.) Johnson mentioned anarticle about PENI and America’s top ten most wanted gang membersin the Orange County Register. (16 CT 4213.) Johnson said a | publication wantedto interview him about gangactivity, but he told the reporter, “[T]hat’s why I’m downherefor court right now,forkilling ... the *3 Tunstall testified that Govey had indeed beenstabbed in Chino State Prison, and that the reference to the “Big Giant Heads” meantthe Aryan Brotherhood. (5 RT 1828-1830.) 20 last son of a bitch that did that, why would I wantto do that?” (16 CT 4214.) When given a hypotheticalofthe facts of the case including Johnson’s prior testimony, Epperson opined that Miller’s murder was donefor the benefit of, at the direction of andin association with a gang such as PENI, and promoted, furthered andassisted in the criminal conduct of its members by regulating the activities of those within the gang’s sphere ofinfluence, enhancingthestatusofthe individual setting up the execution, and allowing one gang member“to takethe fall for others” and garner respectwhen he wasalready serving time for another crime. (5 RT 1919-1921.) 2. Defense Evidence Johnson did not present any evidence in the guilt phase. (5 RT 1931.) _ B. Penalty Phase 1. Prosecution Evidence a. Prior Violent Conduct (1) The Clyde Nordeen Murder — On April 19, 1991, Johnson, John Alder, Ronald Rostamo and other inmates were assigned to a wood-cutting job on theChina Hill work area of Folsom State Prison.”* (6 RT 2177.) Inmates assigned to work on China Hill are dressed in denim pants and long-sleeved blue chambrayshirts with usually a white T-shirt underneath. (6 RT 2169.) ** Aldertestified about the Nordeen murderin a pre-trial conditional examination at the request of the prosecutor. (6 RT 119-122.) Johnson reserved objections to the testimony. (6 RT 120.) However, the conditional examination testimony wasnot presented to the jury. 21 _ At approximately 11:00 that morning, Rostamoleft the worksite to go to the bathroom.” (6 RT 2227.) When he returned about ten minutes later, Rostamo overheard Aldertell Johnson, “[H]e’s not dead yet.” (6 RT 2226-2228.) Alder picked up a wooden pick handle from the woodpile and told Johnson that there was another handle on the groundthat “would work.” (6 RT 2228.) Rostamo then observed Johnson and Alder walk downa pathway towardsthe rear of a shed and disappear from view behind a smalltrailer. (6 RT 2229.) Johnson and Alder were just wearingtheir white T-shirts and blue jeans at the time. (6 RT 2229.) Twoto three minutes later, Johnson and Alder walk back up the pathway together, checking each other for blood stains. (6 RT 2229-2230.) Johnson told Rostamo,“[G]Jive me your T-shirt, mine has blood onit.” (6 RT 2230.) Rostamo complied because he wasafraid of Johnson. (1 RT 2230.) Johnson and Rostamoentered the shed, Johnson took and put on Rostamo’s T-shirt, and Rostamo wasleft wearing his long-sleeved blue shirt. (6 RT 2230.) Johnson and Alder hid their original T-shirts before returning to work with Rostamo. (6 RT 2230-2231.) Ten to fifteen minutes later, Correctional Officer Marshall Stewart noticed blood running downthe back side of ChinaHill along a fenceline. (6 RT 2170; 2230.) Stewart followed the bloodytrail to the body of inmate Clyde Nordeen, which wasstuffed between the rear corner ofthe shed and 25 During the prison investigation, Sergeant Steven Vance interviewed Rostamo. (6 RT 2226.) Rostamo wasvery nervous, apprehensive andinitially reluctant to give Vance any information. (6RT 2227.) Upon further questioning, Rostamotold Vance abouthis observations of Johnson and Alder on the morning ofthe murder. (6 RT 2227-2231.) At trial, Rostamotestified that he did not recall any ofhis prior statements to Sergeant Vance. (6 RT 2200-2204.) Accordingly, Rostamo’s prior statements were admitted through Vance’stestimony. 22 somelarge granite blocks.”° (6 RT 2170-2171, 2230-2231.) Nordeen “had been beatenpretty badly.” (6 RT 2171.) There were large holes abovehis eyes, and he wasbleeding from the back of his head. (6 RT 2171-2172.) The shed had bloodsplatter on it. (6 RT 2174-2175.) Nordeen’s dentures and eyeglasses were on the ground near his body. (6 RT 2216.) A concrete-filled metal pipe was found approximately 65 feet from Nordeen’s body in sometall grass. (6 RT 2216-2217, 2223.) A wooden pick ax handle was lying approximately 82 feet away from the body in the same general area as the metal pipe. (6 RT 2217.) Both objects had blood on them. (6 RT 2223.) Another wooden pick ax handle and a wooden shovel handle were also found nearby. (6 RT 2217.) A sliver ofwood matching the second pick ax handle was found underneath Nordeen’s body. (6 RT 2216, 2220, 2224.) Johnson’s and Alder’s T-shirts and other clothing were discovered underneaththe storagetrailer. (6 RT 2218, 2222, 2231.) When Johnson and Alder returned to the lower yard, Correctional Officer Robert Budanoticed that they did not have their long-sleeved blue chambrayshirts. (6 RT 2212.) When asked why, Johnson and Alderstated that they had takentheir shirts offwhen they wereon China Hill and were not allowedto retrieve them. (6 RT 2212.) Nordeen’s autopsy was conducted the next day. (6 RT 2187-2189.) Nordeensuffered extensive blunt force traumato his head and face, which consisted of 16 different external injuries and “very extensive”internal injuries. (6 RT 2189-2194.) There was a large fracture on the right top portionofhis skull as well as fractures on both sides ofthe frontal bone. (6 RT 2192.) The tops of his eye sockets were broken into multiple pieces. (6 RT 2192.) Several areas of brain tissue were torn, especially on the upper *6 Nordeen wasin custody for molesting a child. (6 RT 2234.) 23 right cerebral hemisphere. (6 RT 2192-2193.) There were no defensive wounds. (6 RT 2190.) __ Blood and vomit in Nordeen’snostrils were indicative of direct traumato the nose and severe brain injury. (6 RT 2190.) The cause of death was “blunt craniocerebral trauma” from multiple blowsto the head. (6 RT 2194.) Death was not immediate, and unconsciousness did not occur until a numberofthe injuries had been inflicted. (6 RT 2194-2195.) The Nordeen case wasreferred to the Sacramento County District Attorney, but no charges werefiled. (6 RT 2232.) Alder and Johnson were transferred to an administrative segregation unit because of the murder. (6 RT 2232, 2238-2239.) At the Lamb/Rumptrial, Johnsontestified that Nordeen wasbeatento death in 1991 with a pick ax handle, a metal bar, sticks and metal tube in his presence. (7 RT 2462.) (2) The Cory Lamons Murder . The weekend before April 4, 2004, Sara Lenard and her boyfriend, James Hartman, began movinginto a Huntington Beach apartment which belonged to Patrick Carroll. (7 RT 2405-2406.) The two-story apartment had an attached garage with a door leading into the hallway onthefirst floor. (7 RT 2406, 2433-2434.) At approximately 4:00 in the afternoon of April 4, 2004, Lenard was upstairs with Hartmanin the apartment when she decided to go downstairs to get something to eat. (7 RT 2406-2408.) Suzanne Miller, Johnson and two other men Lenard did not recognize were downstairs. (7 RT 2408- 2409, 2411.) The situation seemed “very weird.” (7 RT 2410.) Johnson was holding a hammerin his hand andstanding closeto the doorto the garage with his back against the hallway wall. (7 RT 2410- 2411.) When Lenard asked what was going on, Suzanne Miller said, “[T]his isn’t going to be good.” (7 RT 2412.) 24 Cory Lamonsthen entered the apartment from the garage, and Johnsonhit him in the head with the hammer. (7 RT 2412-2413.) Johnson struck him “a lot” of times while Lamons screamed,“I didn’t do anything. I didn’t do anything.” (7 RT 2413.) Lenard ran out the front door as Lamonscontinued to scream interror. (7 RT 2413-2414.) A minuteor twolater, the screaming stopped and Lenard went back inside to get Hartman. (7 RT 2414.) There wasa lot of blood in the hallway and on the wall. (7 RT 2414-2415.) Lamons was lying motionless on the floor. (7 RT 2415.) Lenard ran upstairs, grabbed Hartmanandleft the apartment while Suzanne Miller was scrubbing bloodoffthe wall. (7 RT 2415.) When Lenard and Hartman returned to the apartment a few hours laterto get their property, two different men were there who said, “[K]eep your mouth shut or something like this will happen to you.” (7 RT 2416-2417.) The blood in the hallway had all been cleaned. (7 RT 2417.) - On the evening of April 6, 2004, Huntington Beach Detective Steven Mack andother officers were conducting a surveillance of Johnson who wasdriving a Ford pickup truck in the City of Riverside. (7 RT 2424- 2427.) Suzanne Miller was in the passenger seat. (7 RT 2427.) At Mack’s request, California HighwayPatrol officers effected a traffic stop. (7 RT 2426.) . In the bed of Johnson’struck, there was a pile ofwood covered with gray carpeting. (7 RT 2427.) As Mack approachedtherearofthe truck, he detected the odor of decomposing flesh. (7 RT 2427-2428.) Under the stack ofvarious types ofwood, Lamons’ body was found. (7 RT 2428.) The body was wrapped in a burgundy material and covered with trash bags and a black bed sheet, which hadstrips of a blue bed sheet tied aroundit to provide leverageforlifting. (7 RT 2428-2431, 2439.) 25 Lamonshadvisible bruising on his forehead, a swollen left eye, a laceration belowtheright eye, swollen lips, bruising on the knuckles of both hands, and nickel-sized round bruises on the upperpart of both legs. (7 RT 2431-2432.) Lamons’ abdomen wasgreenish-blue in color which wasindicative of the internal organs decomposing 48 to 72 hours after death. (7 RT 2432.) The County Coroner’s office was unable to determine the precise cause of death due to a very high level of drugs in Lamons’ body in addition to the blunt force head injuries. Thus, the cause of death was stated as “blunt force head injuries with methamphetamine and amphetamine intoxication.” (8 RT 2503-2504.) On April 8, 2014, Mack searched the Huntington Beach apartment pursuantto a search warrant. (7 RT 2433.) There were numerous bleach stains with dark spots in the middle ofthem on the hallway carpet. (7 RT 2434-2435.) A claw hammerwasfound onthe floor of an upstairs bedroom. (7 RT 2435, 2439-2440.) The striking portion of the hammer head was consistent with the round bruises found on Lamons’ body. (7 RT 2440.) In the garage, there were remnants of a blue bed sheet which matchedthe binding material on the body. (7 RT 2437.) In the Lamb/Rump trial, Johnson testified that he beat Lamons to death primarily with the claw hammerandwith his fists. (7 RT 2448, 2454, 2457-2458, 2461.) Johnson admitted that he wrappedthe bodyin the condition the officers found it. (7 RT 2460.) Johnson testified that the reason he killed Lamons was “[b]ecause he had it coming,” because Lamonswas “a dopefiend”andstealing things, that “maybe”it had something to do with Lamons“ripping off” a girl or somegirls, and“[ijt wasother gang-type stuff or whatever you wantto call it.” (7 RT 24448, 2458-2459.) Johnson testified, “Cory Lamons’ mishapis 26 running into me andpissing meoff,” and proclaimed, “Because I am Billy Joe Johnson.” (7 RT 2460.) | Johnson, Suzanne Miller, Jason Karr, Erin Lee and Carroll were charged with Lamons’ murder. (7 RT 2449-2450.) Johnson admittedit was“possible” he faced the courtroom gallery and gave a Heil Hitler salute after his arraignment. (7 RT 2459.) Johnson also admitted that, while awaiting trial for Lamons’ murder, he “possibly” wrote letters to “the homeboys”telling them to “always have the hammerat the ready.” (7 RT 2454, 2461.) Johnsontestified that any and all weaponsare his weaponsof choice. (7 RT 2461.) On June 30, 2006, Johnson pled guilty to second degree murder,street terrorism, and dissuading a witness by force or threat with gang enhancements on behalf ofPENI. (7 RT 2451-2452, 2460, 2463-2464.) He wassentencedto 45 yearsto life in state prison. (7 RT 2458, 2464.) (3) The Residential Robbery of George Troutman _ Virgil George Troutman knew Johnsonsince childhood. (6 RT 2157- 2158.) Gary Smith was a mutualfriend of theirs. (6 RT 2158.) Troutman resided in an apartment on West 18th Street in Costa Mesa. (6 RT 2158.) Johnson was paroled from TehachapiState prison on July 29, 1984. (6 RT 2121-2122.) _ At approximately 11:00 p.m. on April 22, 1985, Troutman was leaving his apartment with Smith when Johnson, Gerald Schaffer and Henry Rogers burst inside.” (6 RT 2158-2159.) Johnson andhis cohorts demanded moneyanddrugs, and started pushing around Troutmanand ?7 Troutman knew Schaffer and Rogers and had noprior quarrels with them. (6 RT 2160.) 27 Smith.”* (6 RT 2159-2161.) Schaffer punched Troutman in the right eye, whichleft a scar. (6 RT 2161.) _ Troutman and Smith were told to empty their pockets. (6 RT 2162.) Johnson, Schaffer and Rogers took various valuables, including a diamond ring and somesmall change from Troutman. (6 RT 2161.) As they were leaving, Johnson and his cohorts threatened to kill Troutman if he went to the police. (6 RT 2161-2162.) ~ Troutman and Smith armed themselves with baseball bats, gathered some friends, and looked for Johnson, Schaffer and Rogers aroundthe neighborhood, but did not find them. (3 RT 2162-2163.) Troutman then reported the incident to the police. (6 RT 2108-2109, 2162-2163.) On April 24, 1984, Johnson called his parole agent, Michael Teichner, andsaid he had struck Troutman during the April 22 incident. (4 RT 2122- 2123.) Teichner told Johnsonto turn himself in to the Costa Mesa Police Department. (6 RT 2123.) The following day, Johnson turned himself in and wasarrested. (6 RT 2112-2114, 2123.) Johnson told Officer Matt Collett that Troutman was a drug dealer and that one ofthe reasons he was angry with Troutman was becausehesold cocaine to a twelve year old boy.” (6 RT 2114-2115.) (4) The Robbery of Cathy Brandolino In the early morning hours of April 1, 1989, Cathy Brandolino and her friend, Linda Nguyen, went to breakfast at a Denny’s restaurant in Costa Mesa. (6 RT 2130-2131, 2138.) After they finished eating, Nguyen walked through the parking lot towards her car when a man named 8 Troutman waspreviously a drug dealer, but had “turned a new leaf” and was no longerselling drugs by 1985. (6 RT 2159, 2164-2167.) ? Troutmantestified that he previously used cocaine, but never sold cocaine to a child or anyoneelse. (6 RT 2164.) 28 Bennett®” approached and asked her whattime it was. (6 RT 2132.) . Nguyen told Bennett that she did not have a watch. (6 RT 2132.) When Brandolino subsequently exited the restaurant, Bennett asked her the same question. (6 RT 2132-2133, 2138, 2140.) Meanwhile, Johnson pulled up in a truck with its passenger door open and stopped on the other side of them. (6 RT 2132-2133, 2135.) Bennett suddenly lunged towards Brandolino, grabbed her purse off her shoulder, jumped into Johnson’s idling truck, and shut the door. (6 RT 2133, 2138-2139.) - Brandolino and Nguyenheld onto the truck in an attemptto retrieve the purse. (6 RT 2134, 2139.) However, Johnson drove away, forcing Brandolino and Nguyento let go of the truck. (6 RT 2134, 2139.) Brandolino suffered a minorlaceration at the base ofherleft ring finger whichbleda little. (6 RT 2125-2126.) Officer Michael Cacho was dispatched to the Denny’s parking lot, obtained statements from Brandolino and Nguyen, and broadcasted the license plate and description of Johnson’s truck. (6 RT 2125-2127.) Officer Clay Epperson stopped the truck and detained Johnson, who was still driving, and Bennett, the passenger.”! (6 RT 2127-2128.) (5) The Reckless Evading of a Peace Officer At 9:30 a.m. on October 29, 1994, Officer Tom Dare waspatrolling an area on the east side of Garden Grove whereresidential burglaries had been reported. (6 RT 2288-2290.) Dare observed a white car driven by *° No first name for Bennett was provided. (6 RT 2128.) 3! Brandolino and Nguyenpositively identified the truck. (6 RT 2128.) Brandolino identified Bennett as the man whotook herpurse. (6 RT 2128.) Nguyen was unable to positively identify Bennett. (6 RT 2128- 2129.) Nguyen did not recognize Johnson’sface, but told Cachothatthe checkered shirt Johnson was wearing was“just like the one that the driver of the vehicle was wearing[.]” (6 RT 2129.) 29 Johnson make a quick anderratic turn into a residential driveway on VolkwoodStreet. (6 RT 2290, 2295-2296.) Dare ran the licenseplate, which cameback as belonging to a recently impounded vehicle.*” (6 RT 2291.) | Dare drove slowly past the residence and noticed that Johnson did not exit the car. (6 RT 2291.) Dare decided to investigate and made a U-turn. (6 RT 2292.) Meanwhile, Johnson had exited the driveway and was traveling southbound on Volkwood. (6 RT 2292.) Dare followed Johnson. (6 RT 2292.) Johnson drove 40 miles an hour and ran a stop sign. (6 RT 2292.) WhenDareactivated his patrol car’s overhead lights to conduct traffic stop, Johnson accelerated to 75 miles per hour through the residential neighborhood. (6 RT 2292.) Dare activated his siren and advised dispatch that he had a pursuit. (6 RT 2293.) Johnson ran another stop sign without braking, skiddederratically, sped towards a house where young children were playing in the front yard, pulled into the driveway, slammed onhis brakes stopping a foot away from a palm tree and the garage, exited the car and fled on foot, jumping the fence into the back yard. (6 RT 2293, 2297.) | Dare established a perimeter until other officers arrived. (6 RT 2294.) They searched someofthe yards, but eventually called off the search since the neighborhood wasnotfriendly to law enforcement and it appeared that Johnson had escapedinto one ofthe homes. (6 RT 2294.) Dare found a wallet containing Johnson’s driver’s license on the front passenger seat of the abandoned car.* (6 RT 1195.) Dare also found a Department of Corrections letter addressed to Johnson in the car. (6 RT 2295.) » The car was not registered to Johnson. (6 RT 2299.) _ 3 During the incident, Dare and Johnson looked at each other and Dare got “a pretty good look” at Johnson’s face. (6 RT 2296.) Dare (continued...) 30 (6) Additional Custodial Offenses On June 4, 1991, Correctional Officer Susan Mireles wasin the control booth ofthe administrative segregation unit** ofNew Folsom State Prison when she observed Johnsonattack his cellmate namedSettles.*> (6 RT 2142-2144.) Johnson wasstanding over Settles and punching him with closed fists while Settles was seated with his back againstthe cell door. (6 RT 2144.) Mireles ordered Settles out of the cell and then closed the door to separate Johnson from him. (6 RT 2145.) Five days later, Johnson admitted the assault at a disciplinary hearing, explaining that he wanted Settles out of his cell, and “threw him out” because he “couldn’t take it anymore[.]” (6 RT 2150-2152.) Johnson lost 61 days of behavior credits, was counseled and reprimanded, and referred back to administrative segregation. (6 RT 2152.) On the morning ofMay 22, 1992, Correctional Officer Andrew Gomez wasin the control booth of the Secured Housing Unit (hereafter “SHU”) in Corcoran State Prison when he heard Johnson shouting from his cell. (6 RT 2267-2269.) Gomez observed Johnson’s cellmate named Vlahos seated on his bunk with bloodstainson his shirt.°” (6 RT 2269- 2271.) Johnson told Gomez, “I am not gonna babysit this guy. Get him out of this cell. He fell down andheis bleedingall over.” (6 RT 2270.) (...continued) testified that Johnson was the person depicted on the driver’s license. (6 RT 2296.) 4 Mireles explained that the administrative segregation unit “is like a jail within a jail” for inmates who have committed orare being investigated for crimes within the prison. (6 RT 2143.) ° No first namefor Settles was provided. (6 RT 2143-2144.) °° Gomeztestified that SHU is where dangerousor violent inmates are housed. (6 RT 2267.) 3” No first name for Vlahos was provided. (6 RT 2269.) 31 Gomezordered Vlahos out of the cell, and then removed Johnson. (6 RT 21271.) Johnson told a sergeant, “[H]e called me a punk, said he would beat my ass. He took a swing at me, so I hit him. He’s crazy.” (6 RT 2271.) Johnson wastransferred to a different cell. (6 RT 2272.) On July 2, 1992, Correctional Officer John Schuman observed Johnson attack an inmate named Agee in the SHU exercise yard of Corcoran State Prison.*® (6 RT 2274-2278.) Johnson struck Agee on the head and shoulders with clenchedfists, causing Agee to fall backwards. (6 RT 2278-2279.) After Agee fell, Johnson continued to hit him in the head. (6 RT 2279-2280.) Schuman did not see Agee do anything to Johnson to precipitate the attack. (6 RT 2278.) - When Johnson did not respond to verbal commandsto stop fighting, Schumanfired a round from his gas gunin his direction. (6 RT 2280.) Johnson and Ageeceased fighting and lay on the ground in a prone position. (6 RT 2280-2281.) Agee then got up and beganto assault Johnson whofought back. (6 RT 2281.) After another verbal order, Schuman discharged the gas gun again, forcing Johnson and Ageebackto _the ground. (6 RT 2282.) Agee received unspecified medical treatment. (6 RT 2282.) Onthe afternoon ofMay 4, 1995, Correctional Officer Anthony Wren responded to “a man downcall” in a housing area for gang membersin the California Institute for Men in Chino (hereafter “C.I.M. Chino”). (6 RT 2302-2303.) In a two-mancell occupied by Johnson and Eugene Dowling, Wren observed Dowling lying onthecell floor bleeding profusely. (6 RT 2303.) Wren escorted Dowling from the cell for medical attention. (6 RT 2303-2304.) 38 Nofirst name for Agee was provided. (6 RT 2278.) 32 Dowling had multiple deep cuts in his right shoulder, right hand, right forearm, chest and thigh. (6 RT 2304-2305.) Johnson hada laceration on his right hand which wasconsistent with the use of a razor blade as a weapon. (6 RT 2305.) Johnson’s cell was searched, but no weapons were found.” (6 RT 2306.) On the morning of September 15, 1995, Correctional Officer Joe Hinojos responded to a “man down”call in C.I-M. Chino. (6 RT 2310- 2311.) In a cell occupied by Johnson and Antonio Young, Hinojos observed that Young had a head injury while Johnson had minorabrasions and bleeding onhis left middle and ring fingers. (6 RT 2311-2313.) A search ofthe cell revealed no weapons. (6 RT 2313.) On May27, 1996, Correctional Officer Clinton Smith searcheda cell occupied by Johnson and an inmate named Wagnerin the administrative segregation unit of Corcoran State Prison.*” (6 RT 2314-2315.) In thecell, Smith found two pieces of metal that he considered weapon stock and an inmate-manufactured handcuff key.” (6 RT 2316.) The two pieces of metal, which were about two inches long with one of them sharpenedto a point, were discovered on Wagner’ssideofthe cell. (6 RT 2317.) The handcuff key was found on Johnson’s side ofthe cell.” (6 RT 23 17.) On the afternoon ofNovember 27, 1996, Correctional Officer Randall Priest heard a commotion from a cell occupied by Johnson and an inmate named White at Corcoran State Prison.*? (6 RT 2326-2327.) From his control booth, Priest observed Johnson standing over White, punching and ° Wren explained how inmates move weaponsbetweencells through “fish lines” made ofpaper products. (6 RT 2306.) “0 Nofirst name for Wagner wasprovided. (6 RT 2315.) “! Inmates in the administrative segregation unit are usually handcuffed for security purposes when moved. (6 RT 2316.) ” The two bedsin thecell were side by side. (6 RT 2317-2318. ) “? No first name for White was provided. (6 RT 2327.) 33 kicking him in the head and upper torso. (6 RT 2328-2329.) White was lying on the cell floor in a fetal position trying to fend off the attack. (6 RT 2328.) Priest yelled at Johnson to stop, sounded an alarm, openedthecell door and ordered either Johnson or White to exit. (6 RT 2329.) However, Johnson continued to kick and punch White. (6 RT 2330.) After ordering Johnson a few more times and noticing that White was not responding or fighting back, Priest fired a non-lethal rubber baton at Johnson, which finally stopped him. (6 RT 2330.) On June 28, 2002, Culinary Officer Richard Nava conductedcell searches in connection with a homicide that had taken place the previous day at C.I.M. Chino.** (6 RT 2333-2334.) As Nava approachedone ofthe cells, Johnson yelled out in a loud voice: “[R]adio, radio, all woodpile,all wood pile and comrades. The sergeants are conducting — are taking interviewsin the kitchen so you will not, I repeat, you will not go into the kitchen. And I mean no one.”(6 RT 2334-2336.) Johnsonthen “said, ‘thank you,’ and all the inmates in sequence afterwards automatically responded ‘thank you.’” (6 RT 2335-2336.) When Nava asked Johnson what wasgoing on, Johnsontold him that none ofthe white inmates would be going to the kitchen for interviews. (6 RT 2337.) No white inmates participated in the interviews. (6 RT 2337.) “* Johnson was not involvedin the homicide which was being investigated. (6 RT 2337.) > Nava explained that “woodpile” refers to the white inmates. (6 RT 2335.) 34 (7) Other Evidence Recordings of Johnson’s monitored phonecalls in the Orange County Jail were played for the jury.“° (7 RT 2471-2482; 8 RT 2485-2489.) On April 28, 2007, Johnson spoke with Rebecca Mangan and Eric Snelson, a PENI gang member known as “Rabbit.”*” (7 RT 2471-2472; 18 CT2499.) Mangan told Johnson that “Stomper” was stabbed by someone from USAS.”® (18 CT 4600.) Johnson said USAS was “gettin[g] out of line,” that he was going to “get one of them guys” when he wasface to face with one of them for “jumpin[g]” someone in San Diego, that Mangan shouldtell “them”he will “meet them in the back field when he “come[s] back, and he wassoirritated that he “want[ed] to chop their fuckin heads off.” (18 CT 4600-4603.) Johnson directed Manganto “[t]ell him I said go get one now.” (18 CT 4604.) On May 18, Johnson spoke with Mangan again. (18 CT 4742.) Johnson said he was “going straight ahead, full Monty,” Mangansaid “he” needed to know how Johnson got“the bullshit to him,” and Johnson answered, “Oh,that, that was, at the fucking, uh, uh, Margaritaville,” and, “Yeah,he, that’s how, that’s, yeah, Margaritaville, for sure.” (18 CT 4743.) Johnsonsaid the story wasalready “layed” and “hatched a long time ago,” and Mangansaid she did not know why “he”wasforgetting. (18 CT 4744.) “° Letters from Johnson to Wayne Marshall (a PENIaffiliate known as “Bullet or “B”), from “Suzzy Q” to Johnson, and from Johnson to Aryan Bluemel were admitted into evidence, but apparently not included in the appellate record. (7 RT 2469-2470.) “7 All subsequentdate references within this portion of the Statement of Facts occurred in 2007 unless noted otherwise. “8 “Stomper” was Karr, a PENI gang member who wasstabbed six or seven timesin state prison. (7 RT 2472.) USASis the United Society of Aryan Skinheads, another white supremacist gang which had been at war with PENI for several years. (7 RT 2468-2469.) 35 . On May22, Johnson spoke with Jill Walker and Jason Cary, a PENI gang member knownas “Bulldog.” (7 RT 2473; 18 CT 4606.) Johnson told Walker to “grab his scooter” and “anything else that ain’t nailed down,”“take him down,” “divvy it up when they’re done,” and “call the homeboy”to set up the guidelines. (18 CT 4607-4608.) Johnson told Cary to get touch with “the homeboy”on a secureline; Cary replied, “[I]f I know you, you makeit happen;” and Johnsonreplied, “I want to makesure this thing happens.” (18 CT 4609-4611.) | On May22, Johnsonalso spoke with Jason Jones, a PENI gang member with a “PDS”tattoo on his neck. (7 RT 2473-2475; 18 CT 4613.) Johnsontold Jonesthat he just talked to “the homeskillet,” “everything 39 66goes... from fucking head to toe,” “there’s a reason behindit,” a “scooter” worth 30 thousand dollars was there, “she” would fill Jones in on all the details, and that Jones andhis friends should have fun. (18 CT 4614-4616.) On May23, Johnson spoke to Walker again. (7 RT 2475; 18 CT 4618.) Johnson asked if she had talked “to the home boys” and got “everything established.” (18 CT 4619.) Walker said she did, but “JJ did not want the bike.” (18 CT 4619.) Johnson said he wanted the bike, there wasalso safe in the home, and he wanted “that fucking dude fucking taken care of.” (18 CT 4619-4621.) Johnson told Walker to make a phonecall to “HD,” said there was probably guns and moneythere, and repeated that he | wantedthe “thirty thousand scooter.” (18 CT 4624-4626.) On June 2, Johnson spoke again with Walker and Cary. (7 RT 2476; 18 CT 4628.) Johnson said he would “smashthat fucking fag,” bust all of his fingers with a nutcracker and “fuck him up;”said he hates “rats” and pedophiles the most in the world; commentedthat“race trading” was“just fucking disgusting;” suggested a “smash and go”; said he would have to talk “on a clear line” and that “somebody neededto hear [his] voice” to “make it happen;” discussed getting everybody together; and told Walkerto 36 “fucking shoot his knee caps.” (18 CT 4629-4639.) Johnson then described to Walker “the new PENI sign,” which he designed which included symbols for “white power,” iron crosses and swastikas, and explained howit all added up to the number 88. (18 CT 4640-4644.) On June 14, Johnson and Mangandiscussedanarticle in the Orange County Weekly that featured Johnson’s photograph and testimony in the Lamb/Rumptrial. (7 RT 2476-2477; 18 CT 4646-4649.) They laughed aboutthe article and photo, which they said was cool and funny. (18 CT 4649-4653.) Johnson mentioned a video about PENI gangs, murders, Miller, his “other guy” and “a bunch of other ones.” (18 CT 4655-4656.) About an hour later, Mangan arranged a phonecall between Johnson and Lamb. (7 RT 2478; 18 CT 4660-4661.) Johnson told Lambthat charges had beenfiled against him; Lamb complained about someone talking to the Orange County Weekly; and Johnson mentionedhis “stash place” and “hiding spot” which he would not reveal. (18 CT 4662-4665.) They discussed the Lamb/Rumptrial; Lamb said he warned Rumpabout opening “to[o] many doors;” and Johnsonsaid, “Yeah, yeah, don’t start the Pandora box.” (18 CT 4666-4667.) After referring to various individuals by their monikers, Johnson mentioned USAS, Lamb respondedthat he was “on top of that,” and Johnsonsaid that“little half pint just got one up there in Calapat” when there were “nine of them up there onthe yard with us.””” (7 RT 278-2479; 18 CT 4669-4678.) | Johnson and Mangan spoketo each other again that day. (18 CT 47479.) Johnson said he was going to “make ‘em goall the wayto the box” and provethat he “did it,” and they laughed about him being called “the boogie man.” (18 CT 4750-4752.) 49 Half Pint was the moniker ofPENI gang memberScott Gillespie. (7 RT 2472.) 37 OnJuly 9, Johnson and Mangan discussed how death row was “a better place” to serve life in prison. (7 RT 2479-2480; 18 CT 4682-4682.) Johnsonstated, “[F]uck if anything[,] I’m gonna kill everything until they fuckin kill me, you know whatI mean.” (18 CT 4683.) Later that day, Johnson spoke to Mangan again,andtold herthat it was “kindalike playing hangman... [{][{] just fill in, fill in the blanks okay.” (18 CT 4747.) Mangan then told Johnsonthat “the trigger” was gold, and Johnsonsaid alright. (18 CT 4747.) On July 29, Johnson spoke with his two brothers Carl and Bobby. (7 RT 2480-2481; 18 CT 4686.). Johnson talked about finding “some jobs” to get money, said he knew someone who would “do them,” discussed taking mid-size cars, and said he had a crew but just needed “the piece work” done. (18 CT 4687-4691.) On September3, Johnson spoke with Mangan. (7 RT 2482; 18 CT 4693.) Johnson gave her a phone number for “that HB thing” and “CB,” said he was “working on anotherone right now,”and told her that he was going to put money on someone’s “books” to make something happen.” (18-CT 4694-4695.) Johnson said there was a Toyotaat the residence, instructed Mangan to tell someonethat “there’s a whole gun cabinet as soon as he walks in the door,” and asked herto get this “off the ground” and get “some momentum going”while he was working on anotherjob. (18 CT 4695-4698.) ~ On September 10, Johnson and Manganspoke again. (8 RT 2484- 2485; 18 CT 4710.) Johnsonsaid, “[N]ow we knowthat they know,” “T hope they fucking cell me up with one ‘cause I’m gonnakill him,” someone was after PENI, and he needed to get in contact with “HalfPP.” (18 CT 4711-4712, 4716.) Johnson talked about “killing mother fuckers,” and stated: “When they shut the hatch, that’s it, you know what I mean, game set match, now it’s on, anybody that fucking comes in my fucking,in, in 38 my range, and, and I don’t like them, I’m killing them, period.” (18 CT 4714-4717.) On March 12, 2008, Johnson spoke with Andrea Metzger. (8 RT 2485; 18 CT 4719.) Johnson asked whether she got letter regarding USASoutto “Patrick.” (18 CT 4720.) Referring to the guys that jumped “three homies” in San Diego, Johnson said he would “smash them all until they fucking go blind.” (18 CT 4720-4722.) On April 5, 2008, Johnson and Govey spoketo each other. (8 RT 2486-2487; 18 CT 4724.) Johnson told Goveythat, if he ever caught any of the guys who jumpedhis three “homies,” he would be “playing soccer.” (18 CT 4725-4726.) In reference to Miller’s murder, Johnson told Govey that he “didit,” “they” were trying to “pinpoint” others forit, and he did not appreciate them trying to take away his fame. (18 CT 4727.) On July 29, 2009, a few weeks before trial, Johnson had a telephone conversation with Richard Briggs, Daniel Lansdale and an individual named Jason.” (8 RT 2488-2489; 18 CT 4729.) Johnson spoke of weeding out people that had nothing to with his “crew,” and said that “it’s all one team”and “all about the white thing.” (18 CT 4730.) Johnson talked about “back up,” regrouping and “business,” explained that there were nogirls in PENI, andsaid, “I don’t give a fuck about nobitch, I don’t give a fuck what the fucking bitch said I don’t care”unless it is someone’s wife speaking for him. (18 CT 4731-4733.) He complained about people committing crimes while claiming to be PENI when they were not membersofthe gang, and ~ said two individuals “walked overthe tier” and off the “yard”at Calipatria °° Lansdale was a PENI gang member knownas “Danny Boy,” while Briggs was a skinheadaffiliate who wasnotin any specific gang. (8 RT 2487-2488.) . 39 State Prison because no one was“paying attention to what was going on.”” (18 CT 4734-4737.) In his prior testimony from the Lamb/Rumptrial, Johnson admitted that he was caught multiple times in possession of deadly weaponsin prison, he retained contacts on the outside while in the Orange CountyJail, Mangan set up phonecalls for him to communicate with other people, he “possibly” attempted to set up homeinvasion robberies while in custody, 39 66.and he “probably” “put out a hit” to have people he did notlike killed in the past few years while in custody. (7 RT 2465-2466.) Johnson had numerous “RIP”or rest in piece tattoos on this body, but denied that they were for Miller, Nordeen or Lamons. (7 RT 2467.) b. Victim Impact Testimony Miller and his mother, Bonnie, were alwaysclose, “did everything together,” and lived together except for a few years in the early 1990’s. (8 RT 2491, 2496.) Since the murder, there has been “a big holein [her] heart,” “[p]art of [her] died with him and [she] can’t be happy.” (8 RT 2491, 2497.) Bonnie misses and thinks of her son everyday, which never gets easier. (8 RT 2501.) Since Miller loved the ocean and surfing, Bonnie is particularly heartbroken in the summertime whensheis at the beach. (8 RT2495.) Miller’s father becameill and died after the murder. (8 RT 2492.) Before he died, Miller’s father told Bonnie, “[P]lease, get justice for our son. Please, do that for me.” (8 RT 2492.) Bonnie sat through the Lamb/Rumptrial, and attended court everyday for the various defendants for seven and a half years in order to “get justice.” (8 RT 2497.) ! Deputy Tunstall explained that the terms “walking off the tier” or “yard” means dropping out of the gang in prison. (8 RT 2489.) 40 Miller’s brother, Calvin, was 18 months older and disabled. (8 RT 2491-2492, 2498.) Miller was very close to his grandmother. (8 RT 2498.) Following the murder, Calvin had to be hospitalized for a breakdown and Miller’s grandmother almostdied from a heart condition. (8 RT 2498.) Miller has a son, “Little Scott,” who was born after the murder on October 5, 2002. (8 RT 2497-2499.) Little Scott did not understand why he did not have a father. (8 RT 2499.) He asked Bonnie howhis father got to heaven and whetherhe could gothere to see him at least once. (8 RT 2493, 2500.) Except for Little Scott, Bonnie “just kind of shut [herself] off from the rest of the world.” (8 RT 2497.) She takes Miller’s son to the gravestone every few weeksto cleanit, but her “heart won’t take it” to go moreoften becauseit is painful and unbearable. (8 RT 2493.) Lamons’ mother, Sharon Thompson,testified that Lamons was a good son. (7 RT 2442-2443.) When Thompsonlearned ofher son’s death, it felt “like the air is being totally sucked out of the whole room”and it was difficult to accept that it really happened. (7 RT 2443.) The worst part for Thompson wasthat Lamons died a violent death from which she was unable to protect him. (7 RT 2443-2444.) She misses her son every day, which never gets easier. (7 RT 2444.) A week beforetestifying at the penalty phase, Thompson broke at down at work becauseit was Lamons’ birthday. (7 RT 2444.) Thompsontestified that Lamons’ death hasleft a “horrible, huge hole in the middle of [her] stomach.” and explained, “It is not like God took him. Someonechoseto take him. Violently.” (7 RT 2444.) Since the murder, Thompsonis “more closed up”and will not allow anybodyto get . close to her.(7 RT 2444.) * Tn response to defense counsel’s questions whetherkilling Johnson would make her pain go awayorget better, Thompsontestified (continued...) 4] 2. Defense Evidence Shirley Williams testified that Johnson was a goodfriend, always courteous and respectful towards her, willing to help her in any way, respectful and protective ofwomen in general, a good father, and very family-oriented.” (4 RT 1563-1566.) Johnson has a gentle side and another side that “parties.” (4 RT 1566.) However, Williams never saw him “fly - off the handle”or be violent. (4 RT 1567.) If she had a child, Williams would trust him or her with Johnson. (4 RT 1567.) ~ Williamsalso cared about Miller and “thought he wasa great guy.” (4 RT 1567.) After Williams learned of Miller’s murder, she called his mother. (4 RT 1568-1569.) It broke Williams’ heart to hear Bonnie talk about her son’s death. (4 RT 1569.) _ Suzanne Miller was Johnson’s currentgirlfriend.’ (6 RT 2260.) Johnson accepted a sentence of 45 years to life for the Lamons murderso that she and the other codefendants could receive determinate sentences. (6 RT 2261.) She received, and was currently serving, a 15 year sentence for ‘manslaughterin the case. (6 RT 2261.) _ Suzanne Millertestified that Johnson wasa loving and respectful family man, whoalwaystreated her and others with kindness and respect. (6 RT 2260, 2262-2264.) Although there were two sides to Johnson, she only saw the kind, protective and respectful side . (6 RT 2260-2261) She believed Johnson’slife had value, finding “[e]verything about him” valuable. (6 RT 2263.) (...continued) that she believes Johnson’s execution might help ease her pain. (7 RT 2445.) °3 At the request of the defense, Williams’ penalty phase testimony waspresented at the guilt phaseto facilitate her return to prison. (5 RT 1562.) * SuzanneMilleris not related to Scott Miller. (8 RT 2625.) 42 Dr. Flores de Apodaca, a clinical psychologist, met with Johnson at the county jail for a total of six hours on October 12 and October 15, 2009 — approximately two weeks before Florestestified at the penalty phase. (7 RT 2344-2346.) Dr. Flores administered psychological tests and reviewed records provided by defense counsel. (7 RT 2346.) Dr. Flores testified that Johnson was the youngest of four siblings, whoseparents separated when he wasten years old. (7 RT 2347-2349.) Thereafter, Johnson resided with his mother, and his relationshipwith his father wasessentially nonexistent. (7 RT 2349.) Aroundthat time, Johnson began having behavioral problemsin school. (7 RT 2349.) He got into fights, was suspended and gave up on academics. (7 RT 2349-2450.) Johnson hada positive relationship with his mother, who was very caring ofhim andhis siblings. (7 RT 2350.) Although Johnson had great respect and admiration for his mother, she was financially overwhelmed and unable to exercise adequate authority over him. (7 RT 2353-2354.) Johnson hadpositive relationships with each ofhis siblings, and received parental type care and guidance from his older brothers.” (7 RT 2350.) He grew up in a good household with no gangs around. (7 RT 2397-2398.) _ Johnson first ran afoul of the law whenhe wasarrested for receiving stolen property to buy alcoholat the age of ten, and maintained a “kind of low to medium to moderatelevel of criminality through adolescence.” (7 RT 2350-2351.) When he was 20 years old; Johnson stole some guns and becameinvolvedin illegal activities related to substance abuse. (7 RT 2350-2351) Johnson began using marijuana when he wastenyearsofage, LSD when he was 14 or15 years old, and cocaine and methamphetamine °> One of Johnson’s brothers has led a crime-free life, while the rest of his brothers have been involved in drug abuse and crimesresulting in incarceration. (7 RT 2389.) 43 by the age of 25. (7 RT 2352.) Johnson wasincarcerated muchofhis life since his early twenties. (7 RT 2347.) | Dr. Florestestified that Johnson talked abouthis prior criminal conduct with “aplomb,” “[w]ith no anxiety, no equivocation, no intention to minimize or whitewash or otherwise apologize or express remorsefor these behaviors”in a “[v]Jery straightforward...matter of fact...nonchalant kind of wayitemizationofthis particular kind of history.” (7 RT 2351.) Johnson was46 yearsold at the timeoftrial, and had been married and divorced twice. (7 RT 2347, 2354-2357.) The marriages ended because of his drug use, gang affiliations and incarcerations. (7 RT 2356- 2357.) Johnson had twosons— one with each ofhis prior spouses — who were eight and 25 years old at the timeoftrial. (7 RT 2355- 2357.) Johnson believed he wasa caring person, devoted and committed to family life. (7 RT 2357.) Johnson told Dr. Flores, “I can be yourbest friend or your worst nightmare.” (7 RT 2357-2358.) Flores interpreted the statement to mean Johnson “could be very violent, he could be vengeful, he could be vindictive and vicious when circumstances, and in his own judgment, the situation calls for that. But then hecan also be loyal and committed and helpful, under a different set of circumstances.” (7 RT 2358.) Johnson also stated that everyone can be forgiven exceptrapists, child molesters, “rats” and gang members whoviolate the gang’s code of ethics and code of honor. . (7 RT 2358.) A nonverbalintelligence test (T.O.N.I.) showed Johnson to have an intelligence quotient(I.Q.) of 92. (7 RT 2358-2359.) The averageI.Q.for the general population is 100. (7 RT 2358-2359.) Dr. Floresfelt Johnson’s score of “92 was probably an underestimate of what he could have accomplished”had he not given up on schoolat such an early age. (7 RT 2359-2460.) 44 The Personality Assessment Inventory (P.A.I.) showed Johnson had drug problems, aggression andantisocial features, proneness to aggression and violence, a history of criminality and violating others’ rights, and disregard for social norms and laws. (7 RT 2360-2364.) Based on the P.A.I., Dr. Flores concluded that Johnson wasproneto aggression, irritability, a short temper and extreme displays of physical aggression againstothers. (7 RT 2365.) Dr. Flores believed drug abuse was both a cause and an effect of Johnson’s impulsivity. (7 RT 2366.) Johnson told Dr. Flores that he wanted to receive the death penalty and be on death row rather than in SHUat another prison. (7 RT 2366- 2367, 2391.) In light of a zero score for suicidal ideation on the P.A.I., Dr. Florestestified that Johnson’s desire for the death penalty wasa rational, calculated decision based onthe belief that there were better conditions of confinement on death row andthat he would outlive his mother to spare her the traumaofan execution. (7 RT 2362-2363, 2366-2369, 2395) Dr. Flores opined that the confinement conditions of an SHU would not “sit well” with Johnson’s mental makeup. (7 RT 2391-2392.) The HARE psychopathy checklist showed Johnson was cunning and manipulative, lacked remorse for his actions, felt normal societal rules do not apply to him, had his ownset ofrules and principles, and was able to turn himself “on and off” to control his behavior. (7 RT 2369-2386.) Johnsonscored very high (the 94th percentile of the prison population) on the psychopathy scale. (7 RT 2386-2387.) Based onthetest results, Dr. Flores diagnosed Johnson as psychopathic with a antisocial personality disorder. (7 RT 2390.) Dr. Flores testified that Johnson choosesthe rules he wantsto follow,is able to °° There was noindication of Johnson having ever been diagnosed or treated for any psychological or psychiatric conditions. (7 RT 2394.) 45 exercise free will in the choices he makes and crimes he commits, and has never expressed regrets for his crimes. (7 RT 2381, 2392-2394.) Since he was ten years of age, Johnson’s decisions “largely went towards criminality, drug and alcohol abuse, an impulsive lifestyle, hedonistic, pleasure, drugs, what he was doing, and not being responsible, and not incorporating values that people socialize into when they abide by the law.” (7 RT 2388.) Johnson told Dr. Flores that he “‘hadn’t accomplished what[he] thought [he] would accomplish, whichis living at the top ofthe hill looking down on creation.”” (7 RT 2373.) To Dr. Flores, this indicated that Johnson believed he “didn’t get where [he] want[s] to go yet [.]” (7 RT 2396.) Daniel Vasquez was previously a correctional officer, program administrator, chief deputy, acting warden and warden of San Quentin State Prison. (8 RT 2505-2506.) He described therestrictive conditions of SHU at Pelican Bay where Johnson washoused atone time. (8 RT 2506-2508.) Althoughit is a maximum security unit, SHU inmatesstill have privileges — to a small amountofpersonal property, family visitations, and accessto television or radio. (8 RT 2507, 2515-2516.) The SHU exercise areas are self-contained, and the prisoners do not go outside for fresh air. (8 RT 2516-1518.) | Vasquez also described the various housing blocks comprising San Quentin’s Death Row. (8 RT 2508-2509.) Death Rowprisoners are able to exercise, visit with family members, have accessto television or radio, and receive various other privileges based on good conduct. (8 RT 2508-25 15.) Death Row inmatesget to go outside “{a] little bit” for a minimum often hours a week. (8 RT 2518.) Vasquez thought it reasonable for a defendant with gangaffiliations to preferbeing on Death Row because it provides _ more security from violence than an SHU. (8 RT 2520-2521.) That: 46 reasoning, however, would not apply to an inmate whois the aggressor. (8 RT 2522.) Vasqueztestified about allegations of staged fights between inmates andbetting by correctionalofficers in the late 1980’s and early 1990’s at Corcoran State Prison, which were investigated by the FBI and other law enforcement agencies. (8 RT 2419.) The Corcoran SHUislessrestrictive than the SHU at Pelican Bay. (8 RT 2518-2519.) Vasquez chronicled Johnson’s history with the Department of Corrections from October 19, 1983 through May 7, 2003, which consisted of multiple recommitments for parole violations and new cases. (8 RT 2524-2530.) Johnson had several rules violation reports (“115’s’’) between February 8 and July 18, 1984. (8 RT 2530-2532.) John Goveytestified that he and Johnson were former cellmates. (8 RT 2536.) At one time, Johnson showed Goveya letter which indicated that someone wanted Johnsonto kill him, but Johnson refused to kill him because they werefriends. (8 RT 2537-253 8.) Johnsontestified on his own behalf at the penalty phase. (8 RT 2538- 2539.) He explained that he previously testified at the Lamb/Rumptrial against his attorney’s advice. (8 RT 2539.) Johnsontestified that he drove Miller to the murder scene andkilled him because “he messed up on the laws that were written by us.” (8 RT 2541.) However, he refusedto testify “about the inner sanctions of what _ | weare, what we do” becauseit could get him killed. (8 RT 2541.) Johnson maintained that he shot Miller, and Rump and Lamb had nothingto do with it. (8 RT 2551.) Despite the prior phonecall with Mangan, Johnson denied that he “hatched”a story about transferring the gun to Lambor neededto be reminded ofthe colorofthe trigger priorto testifying for Lamb. (8 RT 2597-2599.) Johnson felt bad for Miller’s mother, but countered that Miller 47 “knew the consequencesofhis actions,” stated that “Scott Miller got Scott Miller killed,” and claimed his own mother was “going through the same thing on a different aspect.” (8 RT 2542, 2567.) Johnson considered McLachlan “arat.” (8 RT 2601.) Johnson pled guilty to the Lamons murder and acceptedall of the blame to help Suzanne Miller and his other codefendants. (8 RT 2587, 2591.) Johnsontestified that Lamons owed him moneyfor drugs and was disrespectful to some girls he knew bystealing from them. (8 RT 2588.) However, the actual beating “[j]ust happened” when Lamonswalkedin while Johnson wasplaying with the hammer. (8 RT 2587-2588.) Johnson wrapped up Lamons’ body,putit in the truck, covered it with wood, and intendedto takeit to a specific location in Twenty-Nine Palms. (8 RT 2623-2624.) Johnsontestified that he has specific burial sites for bodies, which he would notreveal. (8 RT 2623.) He also has stash houses in different locations where weaponsare kept, which herefused to divulge. (8 RT 2622.) Johnson did not like Nordeen because he was a pedophile whogot too low of a sentence. (8 RT 2572.) After Nordeen’s murder, Johnson assaulted other prisoners because they were “knownrats” trying to get him to talk about the incident. (8 RT 2574.) Johnson burglarized Troutman because he wanted drugs and heard that Troutman had sold drugs to children. (8 RT 2592.) Johnson claimed he was on cocaine and alcoholat the time of the Brandolino incident, he did not knowhisfriend wasgoing to snatch her purse, and he consistently had strong respect for women.” (8 RT 2553-2555.) He denied involvementin °7 Johnsoninsisted that he respects women even thoughhe had sex with Metzger and spent the night with Williams while he was married to his second wife and referred to womenas “bitches.” (8 RT 2602.) 48 the October 1994 evasion from Officer Dare, insisting that “it wasa little Mexican guy named Alex” who wasdriving the car that day. (8 RT 2556- 2557.) Johnsontestified that he assaulted inmate Agee because they werein the “gladiator arena” of Corcoran prison; he assaulted inmate White because White dropped out from one of the gangs and “[he] did what [he] had to do;” and the weapon found by Officer Smith was twopiecesof a broken paperclip used for his and his cellmate’s fingernails. (8 RT 2576- 2577.) Johnsontestified that he has committedat lot of crimes, including at least two murders which the prosecutor was unaware of. (8 RT 2620.) One ofthose overlooked murders occurred out of custody with a male victim prior to the Miller shooting, while the other one occurred in custody. (8 RT 2620-2621.) Johnson admitted that he had also committed a lot of robberies, home invasion robberies and “beat ups.” (8 RT 2620-2621.) In the weekprior to testifying, Johnson made arrangements for USAS membersto be assaulted, on probably more than five occasions, becauseheis “on a mission.” (8 RT 2621-2622.) Johnson recounted his personal and family background, and characterized himself as “a two-sided coin” with his family life “completely different than these other parts.”*® (8 RT 2546-2550, 2560-2565.) He was “in some aspects” a white supremacist prior to going to prison, had “no problem with the other races ...[uJnless they comeinto [his] area,” and would not back down to anything. (8 RT 2542-2544.) Johnsontestified that he did not “really hate, per se” other races as long as they do not harass °8 Johnson did not want any family members to come to court and testify on his behalf. (8 RT 2568.) 49 his “people...being the white people.” (8 RT 2589-2590.) Then, he will “do everything feasibly possible to make sure that they leave the neighborhood,orthe city,” including killing non-whites “[i]f that’s whatit takes.” (8 RT 2590.) | When hetold Dr. Flores about working hard to get to the top of the hill, Johnson wasreferring to the “AB”(Aryan Brotherhood). (8 RT 2629.) Johnsontestified that he only preys on drug addicts, gang members and convicts, whom he considers fair game. (8 RT 2550-2555, 2567, 2590.) - “[R]apoes andrats” also drive him crazy. (8 RT 2566.) Johnson blamedhis criminal behavior on drugs and claimed he was “for the most part” a product of the prison system. (8 RT 2552-2553, 2629.) He explained why he aligned himself with gangs in prison. (8 RT 2557-2558, 2565-2566.) However, Johnsonlives by his ownset of rules in “some aspects”and did notfeel Govey deserved getting killed. (8 RT 2568-2571.) Johnson hasno respect for authority or law enforcement, andlikes to taunt and play “cat and mouse”with the police and parole agents. (8 RT 2579, 2584, 2586.) He has figured out ways to communicate and get things donein prison without the guards knowing. (8 RT 2586.) Johnson wants to receive the death penalty becauseit is a better place to be incarcerated — not because he wants to die. (8 RT 2593.) He would rather be on Death Row whichhasa “{I]ittle bit more range of movement” than Pelican Bay. (8 RT 2540.) 50 ARGUMENT I. VIEWING THE FACTSIN THE LIGHT MOST FAVORABLE TO . THE PROSECUTION AND DRAWING ALL REASONABLE INFERENCES FROM THE FACTSIN SUPPORT OF THE JUDGMENT, THERE WAS SUBSTANTIAL EVIDENCE OF LYING- IN-WAIT FOR PURPOSESOF THE SPECIAL CIRCUMSTANCE AND A THEORYOF FIRST DEGREE MURDER Johnson claims the evidence wasinsufficient to support his conviction for first degree murder on a lying-in-wait theory and the jury’s true finding on the lying-in-wait special circumstance.” (AOB 49-59.) However, Johnsonfails to assess the evidence underthe applicable standard of review,insisting on viewing the facts in the light most favorable to himself and refusing to draw any reasonable inferences from the facts in support of the judgment. Underthe proper standard ofreview,the first degree murder conviction and special circumstancetrue finding were supported by substantial evidence of lying-in-wait. A. Standard of Review The standard for reviewing the sufficiency of the evidence in criminal cases is well-established. (People v. Jennings (2010) 50 Cal.4th 616, 638.) “When considering a challenge to the sufficiency of the evidence to support a conviction, we review theentire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidencethat is reasonable, credible, and of solid value—from which a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. D’Arcy (2010) 48 Cal.4th 257, 293, quoting People v. Lindberg (2008) 45 Cal.4th 1,27.) The standard is the same underthe federal » The jury wasinstructed on willful, deliberate and premeditated murder and lying-in-wait as two theoriesof first degree murder (17 CT 4383-4386 [CALCRIM No.521)), and the lying-in-wait special circumstance (17 CT 4403-4405 [CALCRIM No. 728]). 51 Constitution. (See Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Whenassessing a sufficiency-of-the-evidence claim, the reviewing court has a limited role. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It 399does “ ‘not retry the case’ on appeal. (Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1412, quoting People v. Sanchez (2003) 113 Cal.App.4th 325, 330; see also People v. Veale (2008) 160 Cal.App.4th 40, 46.) It “neither reweigh[s] the evidence nor reevaluate[s] the credibility of witnesses.” (People v. Lindberg, supra, 45 Cal.4th at p. 27; see Jacksonv. Virginia, supra, 443 U.S.at p. 324.) “Tt is thejury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139 [emphasis in original].) “Therefore, an appellate court may not substitute its judgment for that of the jury” (ibid) and must defer to the jury’s resolution of factual conflicts (Cavazos v. Smith (2011) __ U.S. ___ [132 S.Ct. 2, 6, 181 L.Ed.2d311] (per curiam); Jackson v. Virginia, supra, 443 U.S.at p. 326; People v. Ochoa, supra, 6 Cal.4th at p. 1206). “fE]videnceis sufficient to support a conviction so longas ‘after viewing the evidencein the light most favorable to the prosecution, any rational trier offact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Cavazos v. Smith, supra, 132 S.Ct.at p. 6, quoting Jackson v. Virginia, supra, 443 U.S. at p. 319 [emphasis in original].) Thus, the reviewing court “must presumein support ofthe judgmentthe existence ofevery fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314; see also Jackson v. Virginia, supra, 443 U.S.at p. 326; People v. Ochoa, supra, 6 Cal.4th at p. 1206.) . 52 Convictions mayrest primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124; People v. Bean (1988) 46 Cal.3d 919, 932.) _ Although it is the jury's duty to acquit a defendantifit finds the circumstantial evidence susceptible of two reasonable interpretations, one ofwhich suggests guilt and the other innocence,it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) - Thus, a conviction may not be reversed merely because circumstances might support or be reconciled with a contrary finding. (People v. Kraft, supra, 23 Cal.4th at p. 1054; People v. Ceja, supra, 4 Cal.4th at pp. 1138- 1139.) Reversal is only warranted where it clearly appears that “ ‘upon no hypothesis whateveris there sufficient substantial evidence to support’ ” the verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting Peoplev. Redmond (1969) 71 Cal.2d 745, 755.) The samestandard of review applies to sufficiency-of-the-evidence claims for special circumstance findings. (People v. Booker (2011) 51 Cal.4th 141, 172; People v. Lindberg, supra, 45 Cal.4th 1, 27.) _ B. Under the Applicable Standard of Review, There Was Substantial Evidence of Lying-in-Wait to support the First Degree Murderand Special Circumstance Verdicts The lying-in-wait special circumstance requires proof of “ ‘ “ ‘ “an intentional murder, committed under circumstances which include (1) a concealmentofpurpose,(2) a substantial period ofwatching and waiting for an opportunetimeto act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....’ [Citations.]’”’ ” (People v. Streeter (2012) 54 Cal.4th 205, 246-247, quoting People v. Combs (2004) 34 Cal.4th 821, 853; People v. Mendoza (2011) 52 Cal.4th 1056, 1073; People v. Jurado (2006) 38 Cal.4th 72, 119.) 53 - Asa theory offirst degree murder, lying-in-wait is “slightly different” inasmuchit “requires only a wanton and reckless intent to inflict injury likely to cause death”rather than an intentto kill.’ (People v. Streeter, supra, 54 Cal.4th at p. 246, quoting People v. Lewis (2008) 43 Cal.4th 415, 511, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920;see People v. Stevens (2007) 41 Cal.4th 182, 202, fn. 11; Peoplev. Gutierrez (2002) 28 Cal.4th 1083, 1148-1 149.) Therefore, where “ ‘the evidence supports the special circumstance,it necessarily supports the theory of first degree murder’ ” (People v. Moon (2005) 37 Cal.4th 1, 22, quoting People v. Carpenter (1997) 15 Cal.4th 312, 388, superseded by statute on another groundas stated in Verdin v. Superior Court (2008) 43 ° Formerly, there was another difference between the lying-in-wait special circumstance and theory offirst degree murder. The special circumstance applied to murders committed “while lying in wait,” whereas the first degree murder theory appliesto killings “perpetrated by means of ... lying in wait....” (People v. Edelbacher (1989) 47 Cal.3d 983, 1022, citing § 189, and former § 190.2, subd. (a)(15) [emphasis in original].) Thus, “the lying-in-wait special circumstance require[d] that the killing ‘take place during the period of concealment and watchful waiting or the lethal acts must begin at and flow continuously from the momentthe concealment and watchful waiting ends.’ ” (/bid., quoting Dominov. Superior Court (1982) 129 Cal.App.3d 1000, 1011; see also People v. Ceja, supra, 4 Cal.4th at p. 1145 [murder must be “immediately preceded by , lying in wait”].) Effective March 2000, the lying-in-wait special circumstance was amended to substitute “while” with “by meansof,” bringing that aspect of the special circumstance into conformity with the first degree murder theory. (See People v. Streeter, supra, 54 Cal.4th at p. 246 & fn.7, citing Stats. 1998, ch. 629, § 2, p. 4165, and People v. Lewis, supra, 43 Cal.4th at p. 512, fn. 25; see also People v. Hajek (2014) 58 Cal.4th 1144, 1184; People v. Livingston (2012) 53 Cal.4th 1145, 1172 & fn. 7.) Since Miller’s murder occurred on March 8, 2002,it was only necessary to prove the killing was perpetrated “by means of”lying in wait for both the special - circumstance andfirst degree murder theory, and the evidence did not need to comport with the timing requirements ofEdelbacher and Ceja. 54 Cal.4th 1096, 1106-1107), and this Court “ ‘ “focus[es] on the special circumstance becauseit contains the morestringent requirements” ’ ” (People v. Mendoza, supra, 52 Cal.4th at p. 1073, quoting People v. Moon, supra, 37 Cal.4th at p. 22). _ The elements for lying-in-wait can be established independently or through the defendant’s own testimony viewedin the light most favorable ‘to the People. (See People v. Moon, supra, 37 Cal.4th at pp. 22-23.) It is not necessary that the defendant be the actualkiller for either the special circumstance or murder theory for lying-in-wait. (See People v. Bonilla (2007) 41 Cal.4th 313, 330-331 & fn. 5 [special circumstanceapplies to aiders and abettors]; People v. McCoy (2001) 25 Cal.4th 1111, 1122 [“whena person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combinedactsofall the participants as well as that person’s own mens rea”’|.) All elements of the lying-in-wait theory of first degree murder and special circumstance were supported by substantial evidence in Johnson’s case. As a threshold matter, Miller’s murder was anintentional killing. Miller waskilled by a single gunshotto the back of his head. (3 RT 1439-1448.) This manner of execution demonstrated an intent to kill. (See, e.g., People v. Koontz (2002) 27 Cal.4th 1041, 1082 [gunshotto a vital area ~ of the body at close range and preventing witness from calling ambulance wasprobative of a deliberate intent to kill]; People v. Mayfield (1997) 14 Cal.4th 668, 768 [firing gun at victim’s face “entirely consistent with a preconceived design to take his victim’slife”].) In addition, “evidence of motive is often probative of an intentto kill.” (People v. Smith (2005) 37 Cal.4th 733, 741.) Miller waskilled because of his televised interview wherein he discussed PENI gangactivities. (4 RT 1583; 5 RT 1896, 1918- 55 1920.) Accordingly, there was substantial evidence of an intentional killing.*! The concealment element wasalso proved through substantial evidence. The concealmentrequired for lying in wait “is that which puts the defendantin a position of advantage, from whichthe factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. [Citation.] It is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before heattacks the victim. [Citations]” (People v. Webster (1991) 54 Cal.3d 411, 448, quoting People v. Morales (1989) 48 Cal.3d 527, 555, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) Luring the victim “to an isolated location on a pretext” constitutes a concealmentofpurpose. (People v. Webster, supra, 54 Cal.3d at p. 448 [victim led about halfway downa trail to a riverbank encampment where stabbing occurred]; see also People v. Jurado, supra, 38 Cal.4th at p. 120 [defendantlured victim into a car wherekilling occurred without revealing his purpose].) Thatis precisely whatoccurred here. Johnson told McLachlanthat he used drugs as ploy to get Millerto go with him to the alleyway behind Hughes’. apartment. (4 RT 1585.) Lambcalled Hughesandtold her it was important that Hinsoncall him as soon as she gets home. (3 RT 1402-1403.) Subsequently, Lamb and Rump were in Hughes’ apartment awaiting Johnson’s and Miller’s artival. (3 RT 1403.) They left Hughes’ apartmentshortly before the shooting. (3 RT 1404-1405.) As Johnson and Miller were walking downthe alley side-by- 6! Johnson does notcontest that Miller’s murder wasan intentional killing. (See AOB 53-58.) 56 side, Miller heard footsteps from behind and asked Johnson, “[A]re those PENI guys?” (4RT 1581.) At that moment, Miller appeared resigned to the idea that something was going to happen to him, and Lambshot Miller in the back of the head. (4 RT 1581-1582.) | From this evidence, the jury could reasonably infer that Johnson concealed histrue intent and purpose for leading Miller to the alleyway, and the jury could reasonably infer that lying-in-wait was part of Johnson’s, Lamb’s and Rump’splan to take Miller by surprise. Accordingly, there wassubstantial evidence of concealment of purpose. (People v. Webster, supra, 54 Cal.3d at p. 448.) _ There wassubstantial evidence of watching and waiting for an opportunetimeto act. “Lying in wait does not require that a defendant launcha surprise attack at the first available opportunetime. [Citation.] Rather, the defendant ‘ “may wait to maximize his position of advantage before taking his victim by surprise.” ’ ” (People v. Lewis, supra, 43 Cal.4th at p. 510, citing and quoting People v. Hillhouse (2002) 27 Cal.4th 469, 501.) Although the watchful and waiting period mustbe substantial, this Court has “never placed a fixed time limit on this requirement.” (People v. Moon, supra, 37 Cal.4th at p. 23.) In Hillhouse, for example, the defendant waited until the victim stepped outside his truck to urinate before stabbing him. (People v. Hillhouse, supra, 27 Cal.4th 469 at p. 501.) This Court found the jury could reasonably find this was the most opportunetimeto take the victim by surprise. (/bid.) Similarly, Lamb and Rump waited until Johnson arrived with Miller. (See People v. Streeter, supra, 54 Cal.4th at p. 247 [being watchful “can include being ‘alert and vigilant’ in anticipation of the victim’s arrival to take him or her by surprise”].) Johnson’s accomplices then waited until Miller was approximately halfway down the alleywayin anisolated area near the dumpster alcove 57 before firing the fatal shot. (3 RT 1412-1414, 1422.) At that location, there was no oneelse around to warn orassist Miller, and there were no eyewitnesses. As in Hillhouse, it was the most opportune time for Johnson and his accomplices to take Miller by surprise. (See, e.g., People v. Jurado, supra, 38 Cal.4th at p. 120 [defendant waited until victim was driven to a location wherekilling would not be witnessed by other motorists or pedestrians].) Finally, there was substantial evidence proving a surprise attack on an unsuspecting victim from a position of advantage. This element requires that the victim be “taken by surprise, with little or no opportunity to escape or fight back.” (People v. Jurado, supra, 38 Cal.4th at p. 120.) Once Miller asked Johnson whether there were “PENI guys” behind them, he was already isolated in the middle ofthe alleyway surrounded by Johnson, Lamb and Rump. Miller had no opportunity to escape his armed assailant or fight back at that point. From that position of advantage, Lamb shot Miller in the back of the head. ~ Johnson and his accomplices “did not kill out of rash impulse, but. rather in a purposeful mannerthat required stealth and maneuvering to gain a position of advantage over the unsuspecting” victim. (See People v. ° Mendoza, supra, 52 Cal.Ath at p. 1074.) Substantial evidence supportedall elements of the lying-in-wait first degree murder theory and special circumstance. Johnson’s arguments to the contrary are unpersuasive. Hefirst cites to evidence that Miller was generally aware that there would be consequencesto his televised interview, Miller had previously told Simmonsthat he was concernedfor his safety, Miller commentedat the party that he had to keep his guard up, and Miller sounded concernedin his voicemail message to Simmonsonthe evening ofthe murder. (AOB 56.) 58 Johnson overlooksseveral crucial facts which undermine his argument and fails to apply the proper standard of review to the evidence. Lieutenant Eppersontestified that an act ofpayback from a gang could happen“{r]ight on the spot” or weeks, monthsor yearsafter the offending act. (5 RT 1872.) Miller “was still running around”for a substantial period oftime after the interview because no PENI memberhad the courage to enforce the “green light” on him initially. (4 RT 1584- 1585.) Simmonstestified that Miller expressed concerns for his safety only a couple times during the year preceding his death. (4 RT 1537.) Miller did not know when, whereand howretribution from PENI would occur. His generalized concernsfor his safety during the year-long expanse of time between the February 2001 broadcast of the interview and the March 2002 shooting did not defeat the element of surprise on the particular date Johnson andhis associates chose for the murder. It is notable that Miller “sounded concerned”rather than scared, afraid, fearfulorterrified in the voicemail message to Simmons. (4 RT 1534-1535.) Also, Metzger previously testified that Miller and Johnson werejoking about Miller keeping his guard up, everyone was laughing together and the conversation between Johnson and Miller at the party was not serious talk. (4 RT 1547-1549.) _ In orderto prevail on a sufficiency claim, the defendant must set forth all of the material facts in the case in his or her openingbrief in the light most favorable to the prosecution, and persuade the reviewing court that such evidence cannot reasonably support the verdict. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) - Ifthe defendant fails to present [the reviewing court] with all the relevant evidence, or fails to present that evidence in thelight most favorable to the People, then he cannot carry his burden of showing the evidence wasinsufficient because support for the jury’s verdict may lie in the evidence he ignores. 59 (Ibid. [noting that such failure is “often the case in criminal appeals”].) Viewing the evidence cited by Johnson in the light most favorable to the prosecution,it did not show Miller was expecting to be killed that evening. Had he suspected Johnson wasleading him to his death rather than taking him to buy drugs, Miller would not have willingly made himself vulnerable by proceeding downthe alleyway to an isolated location with Johnson. Drawing all reasonable inferences from the facts in support of the judgment, the evidence showed Johnson was an unsuspecting victim at the time of the shooting. Johnson next argues the sound of footsteps just before the shooting constituted an “introduction ofLamb and Rump[which] destroyed the elementof surprise or position of advantage....” (AOB 56.) As previously stated, it is not required that the killer be “‘literally concealed from view before he attacks the victim.’ ” (People v. Webster, supra, 54 Cal.3datp. 448.) Thus, general awareness of a defendant’s or co-defendant’s presence does not negate the concealment element. ( Ibid.) Miller’s awareness of someone behind him secondsbeforethefatal bullet was fired into the back of his head was hardly an “introduction”to Lamb and Rump.It left Miller “with little or no opportunity to escape or fight back.” (People v. Jurado, supra, 38 Cal.4th at p. 120.) ~ In Hillhouse, this Court found a commentby the defendantthat he oughtto kill the victim which was “virtually simultaneous” with the ensuing stabbing did not negate the elements of surprise or position of advantage. (Hillhouse, supra, 27 Cal.4th at p. 501.) Similarly, Johnson’s argument that Miller was technically unrestrained or could have attempted to outrun the bullet based on his virtually simultaneous awarenessofthe footsteps and the shooting is unavailing. Johnson nextcites to his own self-serving prior testimony that he warned Miller at the party that he was going to kill him. (AOB 57.) 60 However, the jurors implicitly rejected that testimony as not credible in finding the lying-in-wait special circumstance true. Johnson’sinvitation to reweigh that testimony and reevaluate the jury’s credibility findings should be rejected. (See People v. Lindberg, supra, 45 Cal.4th at p. 27; People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ceja, supra, 4 Cal.4that p. 1139.) Lastly, Johnson dismisses the wealth of circumstantial evidence proving lying-in-wait as “sheer speculation.” (AOB 57-58.) As this Court stated in People v. Letner & Tobin (2010) 50 Cal.4th 99, “The jury’s reliance upon circumstantial evidence and the reasonable inferences to be drawn from that evidence, in determining whether both defendants were guilty, does not demonstrate, as defendants urge, that the verdict was the result of speculation.” (/d. at p. 164 [rejecting argument that there was no direct evidence as to which defendant performed which acts other than the testimony of one of the defendants, which jury clearly rejected].) Likewise, Johnson’s speculation argument should berejected. | “The factors of concealing murderousintent, and striking from a position of advantage and surprise, ‘are the hallmark of a murder by lying 9999in wait. (People v. Stevens, supra, 41 Cal.4th at p. 202, quoting People v. Hardy (1992) 2 Cal.4th 86, 164.) Each of these factors was proved by substantial evidence here. Johnson cannot show that “ ‘upon no hypothesis whateveris there sufficient substantial evidence to support’ ” the verdicts. (See People v. Bolin, supra, 18 Cal.4th at p. 331, People v. Redmond, supra, 71 Cal.2d at p. 755.) Accordingly, the jury’s first degree murder verdict and true finding on the lying-in-wait special circumstance should be affirmed. The judgment can be affirmed on an additional ground. As previously noted, the jury was instructed on both lying-in-wait and willful, deliberate and premeditated murderas theories offirst degree murder. (17 CT 4383- 61 4386 [CALCRIM No. 521]).) Forhis first degree murder conviction, Johnson challenges only the factual sufficiency of the lying-in-weight evidence. (AOB 49-58.) “* “If the inadequacyofproofis purely factual, of a kind thejury is fully equipped to detect, reversal is not required whenevera valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.”™ (Peoplev. Hughes (2002) 27 Cal.4th 287, 350, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Johnson does not contest the sufficiency of evidence supporting a first degree murder theory of willful, deliberate and premeditated killing. (See AOBii-viii [Topical Index].) Accordingly, the judgmentcan also be affirmed regardless of the merits of Johnson’s challenge to the lying-in-wait evidence. II. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCEIS CONSTITUTIONAL Johnson claimsthe lying-in-wait special circumstance, as amended effective March 2000, is unconstitutional because the amendmentrendered it “indistinguishable” from the first degree murdertheory of lying-in-wait. Consequently, he argues that the special circumstancefails to narrow the class of death-eligible defendants, is unconstitutionally vague and creates a substantialrisk of arbitrary and capricious application of the death penalty in violation of the Eighth Amendmentofthe federal Constitution. (AOB 59-62.) This Court hasalready rejected similar constitutional challenges to the lying-in-wait special circumstance. (See People v. Streeter, supra, 54 Cal.4th at pp. 249-250; People v. Livingston, supra, 53 Cal.4th at p. 1174; ® The verdict form for count 1 did not specify a theory offirst degree murder. (17 CT 4425.) . 62 People v. Lewis, supra, 43 Cal.4th at pp. 515-517; People v. Stevens, supra, 41 Cal.4th at pp. 203-204.) As this Court explained in Stevens, A...narrowing distinction is discernible between the lying-in-wait special circumstance and lying-in-wait murder because the former requires an intent to kill, while the latter does not. [Citations.] Thus, any overlap between the elements of lying in wait in both contexts does not undermine the narrowing function of the special circumstance. (People v. Stevens, supra, 41 Cal.4th at p. 204.) Johnson fails to acknowledge or discuss these decisions which defeat his claim. (See AOB 59-62.) As such, Johnson offers no reason to reconsiderorrevisit this issue, and the judgment should be affirmed. Wi. JOHNSON’S INSTRUCTIONAL ERROR CLAIM WASFORFEITED; THE AIDING AND ABETTING INSTRUCTIONS WERE PROPER SINCE THEY WERE NOT BASED ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE; ANY ALLEGED ERROR WAS HARMLESSIN LIGHT OF JOHNSON’S ADMISSIONS AND THE JURY’S CONSPIRACY VERDICT; AND THERE WAS NO INEFFECTIVE ASSISTANCE OF COUNSEL . Relying on People v. McCoy (2001) 25 Cal.4th 111 (McCoy), andits progeny, Johnsonclaimsthe trial court committed prejudicial error by instructing the jury with CALCRIM No.400 whichstated in part, “A personis equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” (AOB 63-68, 72-74, citing 17 CT 4377 and 5 RT 2029 [emphasis added in AOB].) Johnson argues the “equally guilty” language “permitted the jury to convict appellantof first degree murder without consideration of his own mental state.” (AOB 67.) Johnson further contends that the instructional error was" not forfeited, and trial counsel was ineffective to the degree the claim was waived or forfeited. (AOB 69-71.) All of Johnson’s contentions are meritless. The instructional error claim was forfeited since Johnson deprived the trial court of the opportunity 63 to modify CALCRIM No.400 in conformity with his argumentraised for the first time on appeal. Nonetheless, since Johnson wasnot prosecuted underthe natural and probable consequences doctrine of aiding and abetting, the rule in McCoy doesnot apply to his case and CALCRIM No. 400 wasa properinstruction as given. Furthermore, any alleged error was harmlessin light ofJohnson’s prior admissions and because the jurors necessarily found he had a preconceivedintentto kill throughtheir guilty verdict on the conspiracy count. For the samereasons, Johnsonfails to show deficient performanceor prejudice for his ineffective assistance of counsel claim. Accordingly, the judgment should be affirmed. A. The Claim WasForfeited ~ On appeal, Johnson argues the “equally guilty” language of CALCRIM No. 400 should not have been givenin his case, implicitly suggesting that it should have been deleted or modified in some fashion. (AOB 63-68.) However, he did not object or request any such modifications to CALCRIM No.400in the trial court. (See 5 RT 1933- 1938 [discussion of court and counsel regarding instructions and verdict forms]; 17 CT 4340-4341.) “ ‘Generally, a_party may not complain on appealthat an instruction correct in law and responsive to the evidence was too generalor incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Castaneda (2011) 51 Cal.4th 1292, 1348, quoting People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; see also People v. Jones (2013) 57 Cal.4th 899, 969-970.) Since CALCRIM No.400is generally a correct statementof law, althoughpotentially misleading in somecases, it is incumbent on the defendant to request a clarification or modification of the instruction in the trial court to preserve the issue for appeal. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) Thus, Johnson’s instructional error claim has been forfeited. 64 Johnson counters that an appellate court has discretion to consider a - forfeited claim. (AOB 69,citing People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) To consider on appeal a defendant’s claimsoferror that were not objected to at trial “would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledgethat a conviction would be reversed on appeal.’ ” (In re Seaton (2004) 34 Cal.4th 193, 198, quoting People v. Rogers (1978) 21 Cal.3d 542, 548; see also People v. Partida (2005) 37 Cal.4th 428; People v. Scott (1994) 9 Cal.4th 331, 353 [purpose of waiverrule is “to reduce the numberoferrors committed in thefirst instance and preserve the judicial resources otherwise used to correct them”].) Having deprived the trial court and the prosecutorofthe opportunity to modify orclarify CALCRIM No. 400 as suggested on appeal, Johnson forfeited his instructional error claim andthere is no reason to excusetheforfeiture. - B. There WasNoInstructional Error In McCoy, this Court held, “[OJutside ofthe natural and probable consequencesdoctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator,” and explained: “To prove that a defendant is an accomplice... the prosecution must show that the defendant acted ‘with knowledge ofthe criminal purpose ofthe perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.] When the offense chargedis a specific intent crime, the accomplice must‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knowsthe full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purposeoffacilitating the perpetrator's commission ofthe crime.’ [Citation.]” [Citation.] Whatthis means here, when the charged offense and the intended offense—murder or attempted murder—are the same, ie., 65 when guilt does not depend on the natural andprobable consequences doctrine, is that the aider and abettor must know and share the murderous intent ofthe actual perpetrator. (McCoy, supra, 25 Cal.4th at p. 1118, quoting People v. Prettyman (1996) 14 Cal.4th 248, 259, and People v. Beeman (1984) 35 Cal.3d 547, 460 [footnote omitted and emphasisin last sentence added].) Here, Johnson wasprosecuted and the jury instructed on the theory of aiding and abetting the intended crime of murder, rather than the natural and probable consequencesdoctrine with some non-homicide target offense. (17 CT. 4378-4379 [CALCRIM No.401]; compare CALCRIM No.403 which jury was not given.) Accordingly, the jury was required to find Johnson hadthe specific intent to kill to be liable as an aider and abettor, the “equally guilty” language of CALCRIM No. 400 wasproperin his case, and there was no instructionalerror. C. The Alleged Error Was Harmless Notwithstanding the correctness of CALCRIM No.400, Johnson’s claim can also be readily dismissed on harmless error grounds. An instruction which improperly describes or omits an element of the defense “falls within the broad category oftrial error” subject to the harmlesserror test for constitutional violations provided in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman). (People v. Flood (1998) 18 Cal.4th 470, 503.) Under Chapman,reversalis required unless “it appears beyond a reasonable doubt that the error did not contributeto this jury’s verdict.” (Jd. at p. 504.) _ “Onesituation in which instructional error removing an elementofthe crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element.” (People v. Flood, supra, 18 Cal.4th at p. 504.) Johnson admitted to McLachlan that he wanted Lamb to 66 shoot Miller “head on”in the face when they were in the alleyway. (4 RT 1582.) In his prior testimonyin the penalty phase of the Lamb/Rumptrial, Johnson further admitted that he “take[s] care of business,” he would kill “anyonelike [Miller] that doesn’t abide by the rules,” and he considered Miller “a dead man”after his Fox interview. (4 RT 1701-1703.) Since Johnson previously admitted a preconceived intent to kill, the alleged error in CALCRIM No.400 was harmless beyond a reasonable doubt. Harmlesserror will also be found wherea factual question posed by an omitted or erroneousinstruction “was necessarily resolved adversely to the defendant under other, properly given instructions.” (See Peoplev. Wright (2006) 40 Cal.4th 81, 98, citing People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165 [noting that principle has been applied in evaluating prejudice of variousinstructional errors]; see also People v. Holloway (2004) 33 Cal.4th 96, 140.) Such would be the case hereifthere were any error. In addition to murder, Johnson was charged with and convicted of conspiracy to commit murderin violation of section 182, subdivision (a)(1). (1 CT 54-56; 17 CT 4430, 4531.) The jury wasinstructed accordingly. (17 CT 4387-4392 [CALCRIM No. 563].) Theinstruction specifically required the People to prove “tt}he defendant intended to agree and did agree with one or moreindividuals to intentionally and unlawfully kill [.]” (17 CT 4387.) | All conspiracies to commit murder are conspiracies to commitfirst degree murder. (People v. Cortez (1998) 18 Cal.4th 1223, 1231-1232.) As this Court explained in Cortez, . [I]t logically follows that where two or more persons conspire to commit murder— i.e., intend to agree or conspire, further intend * to commit the target offense ofmurder, and perform one or more overt acts in furtherance of the planned murder — each has acted 67 with a state of mind “functionally indistinguishable from the mental state of premeditating the target offense of murder.” _ [Citation.] The mental state required for conviction of conspiracy to commit murdernecessarily establishes premeditation and deliberation of the target offense of murder — . henceall murder conspiracies are conspiracies to commitfirst degree murder, so to speak. (Id. at p. 1232, citing People v. Swain (1996) 12 Cal.4th 593, 608-609 [emphasisin original].) . Thus, the jurors’ guilt verdict on the conspiracy to commit murder charge necessarily shows that they found Johnson intended to kill Miller with premeditation and deliberation and resolved the alleged deficiency in CALCRIM No. 400 against Johnson underother properly given instructions. Accordingly, there are two grounds upon whichto find any instructional error harmless beyond a reasonable doubtirrespective of the merits ofJohnson’s claim, and the judgment should beaffirmed. D. Johnson Fails to Demonstrate Ineffective Assistance of Counsel The Sixth Amendmentto the United States Constitution andarticle I, section 15 of the state constitution guaranty criminal defendants the right to effective assistance of counsel. (People v. Bonin (1989) 47 Cal.3d 808, 833.) The burden ofproving ineffective assistance oftrial counsel lies with the defendant challenging the judgment. (People v. Haskett (1990) 52 Cal.3d 210, 248.) Johnsonfails to satisfy that burden insofar as his instructional error claim has been forfeited. - Under the two-prongtest articulated in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland), the defendant must demonstrate deficient performance as well as prejudice. (Id. at pp. 687-695.) The standard is the same underthefederalandstate constitutions. (People v. Osband (1996) 13 Cal.4th 622, 700.) | 68 _ Thefirst prong of Stricklandis deficient performance. To establish deficient performance, Johnson must showtrial counsel’s representation fell “below an objective standard of reasonableness.” (People v. Bolin, supra, 18 Cal.4th at p. 333.) However, review oftrial counsel’s performance “must be highly deferential” and include a “strong presumption”that the defendant received reasonable professional assistance of counsel. (Strickland, supra, 466 U.S.at pp. 689-690.) The alleged deficiency must be assessed “ ‘under the circumstances as they stoodat the time that counsel acted orfailed to act.’ ” (People v. Scott (1997) 15 Cal.4th 1188, 1212, quoting People v. Ledesma (1987) 43 Cal.3d 171, 216.) “Although deference is not abdication [citation], courts should not second-guess reasonable,if difficult, tactical decisions in the harsh light of hindsight.” (/bid.) If the record on appeal does not contain an explanation for the challenged action or omission, the reviewing court must reject a claim of deficient performance unless counsel failed to provide an explanation when askedorthere could be nosatisfactory explanation for counsel’s conduct. (People v. Vines (2011) 51 Cal.4th 830, 876; People v. Osband, supra, 13 Cal.4th at pp. 700-701.) The second prongofStrickland is prejudice. (People v. Davis (1995) 10 Cal.4th 463, 515-516 [even if representation deficient, defendant must still demonstrate prejudice].) Johnson must show a “reasonable probability that counsel’s omission resulted in a less favorable verdict” (People v. Wash (1993) 6 Cal.4th 215, 271) or “so undermined the proper functioning of the adversarial processthat the trial cannot be relied on as having produceda just result” (Strickland, supra, 466 U.S. at p. 686). A defendant alleging ineffective assistance “must establish prejudice as a demonstrable reality, not simply speculation as to the effect of the errors or omissions of counsel.” (In re Cox (2003) 30 Cal.4th 974, 1015 [internal quotation marks and citations omitted].) 69 _ The reviewing court need not reach the question of deficient performanceifthe defendantfails to demonstrate prejudice. (See Strickland, supra, 466 U.S.at p. 697.) “If it is easier to dispose of an ineffectiveness claim on the groundoflack of sufficient prejudice, which we expect will often be so, that course should be followed.” ([bid.; see In re Fields (1990) 51 Cal.3d 1063, 1079.) Asdiscussed above, CALCRIM No.400 wasa properinstruction as given because Johnson wasnot prosecuted underthe natural and probable consequencesdoctrine of aiding and abetting. Thus, any objection or motion to modify the instruction to delete or replace the “equally guilty” language would have been meritless. Failure to make a meritless motion or objection cannotconstitute deficient performance. (See,e.g., People v. Lucero (2000) 23 Cal.4th 692, 731; People v. Coddington (2000) 23 Cal.4th 529, 625, overruled on other groundsin Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Ochoa (1998) 19 Cal.4th 353, 463; People v. Kipp (1998) 18 Cal.4th 349, 373; People v. Jones (1998) 17 Cal.4th 279, 309.) “ ‘Failure to object rarely constitutes constitutionally ineffective legal representation.” ” (People v. Gray (2005) 37 Cal.4th 168, 209, quoting People v. Boyette (2002) 29 Cal.4th 381, 424.) Johnson thusfails to satisfy the first prong ofStrickland. Johnson alsofails to satisfy the second Stricklandprongsince, as discussed above, he previously admitted a preconceivedintent to kill and the jury necessarily resolved any alleged defect in CALCRIM No.400 against him through the properly given conspiracy instructions. | Accordingly, Johnson’s ineffective assistance of counsel claim should be rejected and the judgmentaffirmed. 70 IV. THE PRIOR MURDER SPECIAL CIRCUMSTANCEAS APPLIED IN JOHNSON’S CASE IS CONSTITUTIONAL Johnsonclaimsthe true finding on the prior murderspecial circumstanceas applied to him is unconstitutional because the underlying murder of Cory Lamonsoccurred twoyearsafter the capital murder of Scott Miller charged in the current case. Johnson contendsthe special circumstance mustthus be stricken even though he was convicted ofthe Lamons murderin a prior proceeding. (AOB 75-78.) Johnson’s claim is without merit. “[N]numerousdecisionsofthis | [C]ourt have concluded the controlling factor under the express language of section 190.2(a)(2) is whether ‘[t]he defendant was convictedpreviously of murderin the first or second degree.’ [Citation] The ‘order of the commission ofthe homicidesis immaterial.’ ” (People v. Rogers (2013) 57 Cal.4th 296, 343 [emphasis in original], quoting People v. Hendricks (1987) 43 Cal.3d 584, 596, and citing People v. Hinton (2006) 37 Cal.4th 839, 879; People v. Gurule (2002) 28 Cal.4th 557, 636; People v. McLain (1988) 46 Cal.3d 97, 107-108; People v. Grant (1988) 45 Cal.3d 829, 848.) Since the special circumstance wasin effect at the time of the current capital murder and already construed to encompassall murders committed by the defendant, there is no due processor ex post facto violation. (People v. Hinton, supra, 37 Cal.4th at p. 879.) Johnson acknowledges, “This [C]ourt has repeatedly held that a murder may qualify as a prior murder special circumstance whenit occurs later in time thanthe killing charged as capital murder,” and explains that the “issue is briefed in abbreviated form in accordance with Peoplev. 71 Schmeck (2005) 37 Cal.4th 240, 303-304.°% (AOB 75 & fn. 20.) Johnson does not identify any new authority or arguments not considered in the above-cited cases. (AOB 75-78.) Accordingly, there is no reason to revisit or reconsiderthe issue, and the special circumstancetrue finding should be affirmed. V. JOHNSON FORFEITED HIS CLAIM REGARDING THE VICTIM IMPACT TESTIMONY OF CORY LAMONS’ MOTHER; VICTIM IMPACT EVIDENCE RELATED TO PRIOR VIOLENT CONDUCT UNDERSECTION 190.3, SUBDIVISION (B), IS ADMISSIBLE AND CONSTITUTIONAL; AND ANY ALLEGED ERROR WAS HARMLESS ~ Johnsonclaimsthetrial court committed reversible error in the penalty phase by admitting over his objection the victim impact testimony from Cory Lamons’ mother. He argues the evidence was improper and violated his state and federal constitutional rights becauseit did notrelate to the circumstancesofthe capital offense, thus exceeding the permissible scope ofvictim impact testimony under Payne v. Tennessee (1991) 501 US. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]. (AOB 79-96.) Johnson’s victim impact claim is forfeited because he objected on different groundsin the trial court. Notwithstanding forfeiture, the testimony of Lamons’ mother wasproperly admitted under section 190.3, 63 People v. Schmeck, supra, 37 Cal.4th 240, abrogated on another groundas stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-638, provides for an abbreviated form to present “routine or generic claimsthat [this Court] repeatedly [has] rejected and are presented to this [C]Jourt primarily to preserve them for review by the federal courts. . . . when the defendant does no morethan(i) identify the claim in the context of the facts, (ii) note that [this Court] previously [has] rejected the same or a similar claim in a prior decision, and(iii) ask [this Court] to reconsider that decision.” (/d. at p. 304.) 72 subdivision (b) (“factor (b)”), it was constitutional, and any alleged error in admitting her testimony washarmless. A. The Claim WasForfeited Priorto trial, the prosecutor filed a motion which included a request to present victim impact evidencerelated to both the capital murder and Johnson’sprior violent criminal activity. (1 CT 228,citing People v. Demetrulias (2006) 39 Cal.4th 1, 39 (Demetrulias).) Defense counselfiled a responseto the prosecutor’s motion whichstated in relevantpart: The impactthat a crime has on a victim’s mental state is not admissible absentits relevance to provethat the crimefits within the guidelines set forth by 190.3 (b). Furthermore if the Court is inclined to allow this evidence it should be strictly limited to the actual victim of the crimeitself. In the Demetrulias case cited in the People’s moving papers the victim himself testified as to his physical and mental condition. Any testimonybyrelatives or friends would be tenuousand outside the purview ofthe statute and applicable case law. (15CT 3774.) During the court hearing on pretrial motions, defense counsel submitted on his moving papers, arguing,“I believe the way the law reads is that they are talking about the impactto the specific victim,” and “I believe to be applicable in this situation it has to be the victim, the wayI readit, the victim of a crime, what’s the impact on that person” under factor (b). (2 RT 1003-1004.) Counsel explained, Whereas somebody whois robbed or raped or somethingelse like that, there is a scarring, a mentalscarring that occurs, whetheror not they are scared to walk through a parking lot, or go into a mall, whatever the case may be, which I agree would be admissible, but wouldn’t be applicable in thiscase. (2 RT 1004.) 73 Thereafter, the prosecutor represented to the court that he intended to call only Miller’s and Lamons’ mothers as victim impact witnesses in the penalty phase, even though Nordeen’s brother and Miller’s son and brother were also on the witnesslist. (2 RT 1006-1007.) The court overruled the defense objection without prejudiceto raising it againat trial if the victim impact evidence wereto be different than the offer ofproof in the pretrial motion, there is insufficient foundation for the testimony or there were other Evidence Code section 352 issues. (2 RT 1007-1008.) ~ On appeal, Johnson abandonsthe argumentraised below that only victims themselves can provide victim impact testimony, and now contends on statutory and constitutional groundsthat the scope of victim impact evidenceis limited to the circumstancesofthe capital offense regardless of whoprovides such testimony. (AOB 79-96.) The claim on appeal has been forfeited. In order to preserve a challenge to the admission oftrial evidence for appeal purposes, a party must comply with Evidence Code section 353.4 (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) That section states: _ A verdictor finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason ofthe erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to excludeorto strike the evidence that was timely made and so stated as to makeclear the specific ground of the objection or motion; and (b) The court which passes uponthe effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the groundstated andthat the erroror errors complained of resulted in a miscarriage ofjustice. * This may be done through a “properly directed motion in limine” in which the party obtains an “express ruling” from thetrial court. (People v. Ramos, supra, 15 Cal.4th at p. 1171.) 74 (Evid. Code, § 353.) | This Court has “consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable” on appeal. (People v. Seijas (2005) 36 Cal.4th 291, 302, quoting People v. Green (1980) 27 Cal.3d 1, 22.) “Althoughno‘particular form of objection’ is required, the objection must‘fairly inform thetrial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can makea fully informedruling.’ [Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 130, quoting People v. Zamudio (2008) 43 Cal.4th 327, 354.) ~ In the trial court, Johnson did not object to the testimony of Lamons’ mother on the ground that victim impact evidenceis limited to the circumstancesofthe capital offense. (AOB 79-96.) He has thus forfeited this claim and should not be permittedto raiseit for the first time on appeal. (See People v. Chatman (2006) 38 Cal.4th 344, 397 [defendant“did not object on that basisattrial, and he may not makethat argument on | appeal”].) B. The Evidence Was Admissible and Constitutional “The circumstances of unchargedviolent crimes, including the impact on victims of those crimes, are made expressly admissible by section 190.3, factor (b).” (People v. Virgil (2011) 51 Cal.4th 1210, 1276, citing Peoplev. Bramit (2009) 46 Cal.4th 1221, 1241; see also People v. Brady (2010) 50 Cal.4th 547, 581-582; Demetrulias, supra, 39 Cal.4th at p. 39; People v. Mendoza (2000) 24 Cal.4th 130, 186.) This includes “evidence of the emotional effect of defendant’s prior violent criminal acts on the victims of 75 those acts.” (People v. Price (1991) 1 Cal.4th 324, 479.) The testimony of Lamons’ mother was therefore admissible.© - The victim impact testimony admitted undersection 190.3, subdivision (b), was also constitutional. This Court has “repeatedly held that the admission of evidence aboutthe impacts ofa capital defendant’s other violent criminal activity does not violate the state or federal Constitutions. (People v. Virgil, supra, 51 Cal.4th at p. 1276,citing People v. Price, supra, | Cal.4th at p. 479, People v. Clark (1990)50 Cal.3d 583, 628-629, and People v. Karis (1988) 46 Cal.3d 612, 641.) Johnson acknowledgesthat “the prohibition against victim impact evidenceat the sentencing phase ofa capitaltrial has largely been overruled andthusis not barred by the federal constitution,” but requests that this Court reconsiderits “prior decisions to the extent that they are inconsistent with federal constitutional principles.” (AOB 91.) Johnson’s argumentfor reconsideration is primarily based on decisions from the Supreme Courts of Illinois, Nevada and Tennessee. (AOB 91-95,citing People v. Hope (1998) 184 Tll.2d 39, 49-52, 702 N.E.2d 1282, 1287-1289; Shermanv. State (1998) 114 Nev. 998, 1012-1014, 965 P.2d 903, 913-914; State v. Nesbit(Tenn. 1998) 978 S.W.2d 872, 892; State v. Bigbee (Tenn. 1994) 885 S.W.2d 797, 811-812.) ® Out of the manydecisionsofthis Court addressing the issue of factor b victim impact testimony, Johnson complains that People v. Benson (1990) 52 Cal.3d 754, 797, did not discuss a contrary holding in People v. Boyde (1988) 46 Cal.3d 212, 247. (AOB 80-81.) However,“[a]n appellate court is not required to addressall ofthe parties’ respective arguments, discuss every case or fact relied upon bythe parties, distinguish an opinion just because a party claimsit is apposite, or express every ground for rejecting every contention advanced by every party.” (People v. Garcia (2002) 97 Cal.App.4th 847,853, citing Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1263-1264.) 76 This Court has “considered these out-of-state cases and concluded they do not support a claim that the admission of victim impact evidence regarding prior crimes violates the federal Constitution.” (People v. Virgil, supra, 51 Cal.4th at p. 1276, citing People v. Davis (2009) 46 Cal.4th 539, 618.) Thus, as in Virgil, “defendant offers no compelling reason to depart from [this Court’s] settled views,”the victim impact evidence undersection 190.3, subdivision (b), was properly admitted, and the judgment should be affirmed. (/bid.) 'C. The Alleged Error Was Harmless Notwithstanding forfeiture and the merits of Johnson’s claim, any alleged error in admitting the testimony of Lamons’ mother was harmless. The erroneous admissionofvictim impact testimony in the penalty phase of a capital trial is reviewed for harmless error under the Chapman harmless beyond a reasonable doubt standard. (See People v. Nelson (2011) 51 Cal.4th 198, 221; People v. Russell (2010) 50 Cal.4th 1228, 1265.) In this context, Chapman means“no reasonable possibility” that the error affected the penalty phase verdict.” (People v. Williams (2013) 56 Cal.4th 165, 196; People v. Abel (2012) 53 Cal.4th 891, 939; People v. Booker (2011) 51 Cal.4th 141, 193; People v. Davis, supra, 46 Cal.4th at p. 618; Peoplev. Kelly (2007) 42 Cal.4th 763, 799.) °° The second Tennessee Supreme Court case cited by Johnson, State v. Bigbee, supra, 885 S.W.2d 797, was not addresseddirectly in Peoplev. Virgil, supra, 51 Cal.4th at p. 1276.) However, Bigbee wascited as the authority for the holding in State v. Nesbit, supra, 978 S.W.2d atp. 891, fn. 11, which wasconsidered by this Court. °’ The “reasonable possibility”standard for penalty phaseerrors first articulated in People v. Brown (1988) 46 Cal.3d 432, 448, “‘ “is the ‘same in substance and effect’ as the beyond-a -reasonable-doubttest for prejudice articulated in Chapman [citation]” [Citation.]’ ” (Peoplev. Gonzales (2011) 51 Cal.4th 894, 953, quoting People v. Dykes (2009) 46 Cal.4th 731, 786.) 77 Wherethere is “overwhelming evidence in aggravation” independent of the erroneously admitted victim impact evidence, the error is harmless under Chapman. (See People v. Russell, supra, 50 Cal.4th at p. 1265.) Such is the case here. Johnson was responsible for the murder of three men and admitted to killing two more people. (8 RT 2620-2621.) The manners in which Johnsonkilled Lamonsand Nordeen were shockingly brutal, repeatedly striking Lamonsin the head with a claw hammerwhile he was screaming for mercy (7 RT 2412-2414) and bashing Nordeen’s head in with various objects until his eye sockets were broken into multiple pieces, his skull was fractured in several places and brain tissue was torn (6 RT 2171-2172, 2233, 2192-2193). Johnson had nolegitimate or mitigating reasons for murdering any ofhis victims, explaining that Miller was killed for violating the PENI gang code (8 RT 2541), he killed Lamons due to a drug debt and because he stole something from some women (8 RT 2588), and he killed Nordeen becausehe did not like him and felt Nordeen had received too low of a sentence (8 RT 2572). ' Johnson engaged in additional crimes of violence against Troutman (6 RT 2158-2162) and Brandolino (6 RT 2132-2139), and posed threat of great violence by recklessly driving through a residential neighborhood to evade Officer Dare (6 RT 2292-2297). Johnson demonstrated that prison wasno obstacle to his penchant for violence, having cut or beaten several fellow inmates. (6 RT 2144, 2269-2271, 2278-2280, 2303-2405, 2311- 2313, 2328-2330.) Johnson threatened and orchestrated violencein the community while incarcerated (18 CT 4600-4604, 4619-4621, 4629-4639, 4683, 4711-4717, 4720-4722, 4725-4727), and even admitted in his prior 39 66.‘ testimony that he “probably” “put out a hit” to have people he did not like killed while in custody (7 RT 2465-2466). 78 The evidence presented in mitigation was unconvincing. The defense testimony that Johnson was very respectful ofwomen (4 RT 1564-1565; 8 RT 2554) was undermined by his victimization of Ms. Brandolino (6 RT 2132-2140) and his references to womenas “bitches” (18 CT 4731-4733). The testimony of Williams and Suzanne Miller about Johnson’s “gentle,” “kind and respectful”side (4 RT 1566; 6 RT 2260-2261) was meaningless in light of Johnson’s statement toDr. Flores that “I can be yourbest friend or your worst nightmare” (7 RT 2357-2358). Psychological tests showed Johnson was a psychopath, who exercised free will in his choices, never expressed regret for his crimes, and discussed his prior criminal conduct “with aplomb.” (7 RT 2351, 2381, 2386-2387, 2390-2394.) The evidence in aggravation was nothing short of overwhelming comparedto any mitigation. Moreover,the testimony ofLamons’ mother wastragically predictable. “Even without the victim impact testimony, the evidence of the prior crimes themselvesleft little doubt about the impact ofthose crimes on defendant’s victims.” (People v. Davis, supra, 46 Cal.4th at p. 618.) Furthermore, the factor (b) victim impact evidence consisted only of the testimonyofa single witness, Lamons’ mother; andthat testimony was extremely brief, comprising merely fourpages ofReporter’s Transcript. (7 RT 2442-2445.) Brevity of the challenged victim impact testimonyis anotherbasis for finding the error harmless. (See, e.g., People v. Redd (2010) 48 Cal.4th 691, 732; People v. Panah (2005) 35 Cal.4th 395, 495.) Accordingly, there is no reasonable possibility that the testimony of 79 ‘Lamons’ mother affected the penalty verdict, the alleged error was harmless, and the judgment should be affirmed.® VI. JOHNSON FORFEITED HIS PROSECUTORIAL MISCONDUCT CLAIM; THERE WASNO MISCONDUCT; THE ALLEGED ERROR WASNOT PREJUDICIAL; AND THERE WASNO INEFFECTIVE ASSISTANCE OF COUNSEL Johnson claims the prosecutor committed misconduct in penalty phase closing argument by addressing the jurors individually rather than as a group, defense counsel wasineffective for failing to object to the alleged misconduct, and the error wasso prejudicial that it requires reversal of the penalty verdict. (AOB 97-104.) All of Johnson’s contentions are meritless. The prosecutorial misconduct claim wasforfeited because there was no objection, assignment of misconduct or request for admonition in the trial court where any error could have been readily remedied. Notwithstanding forfeiture, it was not misconduct to emphasize each juror’s individual responsibility to arrive at an appropriate penalty determination. Moreover, the prosecutor’s rhetorical question repeated to each of the twelve jurors was the equivalent of addressing the jury as a whole. Furthermore, the alleged error was harmless. For the same reasons, there wasnoineffective assistance of counsel. Accordingly, the judgment should be affirmed. A. Relevant Proceedings Nearthe end of his penalty phase closing argument, the prosecutor stated to the jury: “Justice will be served when those whoare not injured ° Because there was no erroror prejudice, Johnson cannot show deficient performance and prejudice for purposes of any ineffective assistance of counsel claim he mayseektoraise in responseto the forfeiture. 80 by crime feel as indignant as those who are. That’s whenjustice is served. Whenpeople whoare notdirectly injured by the crime feel as indignant as those that are.” (9 RT 2724.) Addressing them as “Sir” or “Ma’am,”the prosecutor then asked eachofthe twelvejurors in rhetorical fashion, “How about you,” and whether heor she wasindignant yet. (9 RT 2723-2724.) Thereafter, the prosecutor argued: Enoughis enough. Do you feel what Bonnie and Calvin and Bruce and grandma feel? Do you feel what Sharon and her daughter feel? Don’t say yes, because you don’t unless youlost a daughter or a son. You don’t. Put a value on it. Put a value on it. Is it enough yet? Put a value on that. Is it enough yet? That’s his partial trail of blood and horror. Enoughis enough. Heforfeited the right to live, and he so richly deserves the ultimate punishment. (9 RT 2724.) Defense counsel madeno objection to the argument.” (9 RT 2723-2725.) B. The Claim WasForfeited “To preserve the issue of prosecutorial misconduct on appeal, the defendant must both object and request a curative admonition unless such admonition would havefailed to cure any prejudice.” (People v. Lopez (2013) 56 Cal.4th 1028, 1073 [emphasisin original].) In addition, a . defendant must“request an assignment of misconduct”to preserve the claim for appeal. (People v. Young (2005) 34 Cal.4th 1149, 1188.) _ Asany otherprosecutorial misconductclaim, a defendant claiming misconductin closing argument must give the trial court “an opportunity to attemptto alleviate the potential harm caused by the prosecutor’s action.” (People v. Fuiava (2012) 53 Cal.4th 622, 691, citing People v. Boyette, ® Johnson concedes defense counsel did not object. (AOB 101.) 81 supra, 29 Cal.4th at p. 432.) Thus, “ ‘a defendant must make a timely objection and askthe trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct, unless an admonition would not have cured the harm.’” (People v. Thomas (2012) 54 Cal.4th 908, 937, quoting People v. Davis, supra, 46 Cal.4th at p. 612.) Ifno such objection and request for admonition is made, the misconduct claim is forfeited. (See People v. Dykes, supra, 46 Cal.4th at p. 769; People v. Hamilton (2009) 45 Cal.4th 863, 956; People v. Brown (2003) 31 Cal.4th 518, 553; People v. Navarette (2003) 30 Cal.4th 458, 513.) | Asstated, there was no objection in thetrial court to the argument which Johnson now claims was misconduct. Consequently, no assignment of misconduct or curative admonition was requested. If there was error, an objection and assignment of misconduct would not have beenfutile sinceit would have halted and discredited the prosecutor’s argument.” Moreover, an admonition to the jurors to disregard the prosecutor’s remarks as improper would have cured any potential prejudice from the alleged misconduct. Accordingly, Johnson’s claim of prosecutorial misconduct in penalty phase closing argumentis forfeited. Instead of objecting and requesting an assignment of misconduct and admonitionin the trial court, Johnson has waited to raise his prosecutorial misconductclaim forthefirst time on appeal after receiving unfavorable verdicts. “Because we do not expectthe trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the ~ bounds ofproper comment, argument, or inquiry.” 7° Johnson agrees that an objection “would havediffused”the alleged misconduct. (AOB 102.) . 82 (People v. Wilson (2008) 44 Cal.4th 758, 800, quoting People v. Visciotti (1992) 2 Cal.4th 1, 79.) Johnson deprived the trial court of the opportunity to correct the error he now claims on appeal. Therefore, his misconduct claim has been forfeited. C. There Was No Misconduct “* *A prosecutor’s conduct violates the Fourteenth Amendmentto the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 444, quoting People v. Morales (2001) 25 Cal.4th 34, 44, and citing Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 91 L.Ed.2d 144], and Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [94 S.Ct. 1868, 40 L.Ed.2d 431].) “Under California law, a prosecutor who uses deceptive or reprehensible methods ofpersuasion commits misconduct even if such actions do not renderthe trial fundamentally unfair.” (Jbid., citing People v. Cook (2006) 39 Cal.4th 566, 606.) “[W]hen the claim focuses upon comments made bythe prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarksin an objectionable fashion.” (People v. Morales, supra, 25 Cal.4th at p. 44, citing People v. Ayala (2000) 23 Cal.4th 225, 283-284.) “ ‘In conducting this inquiry, we “do notlightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Dykes, supra, 46 Cal.4th at p. 772, quoting People v. Frye”! (1998) 18 Cal.4th 894, 970; see also People v. Wilson (2005) 36 Cal.4th 309, 338; People v. Young, supra, 34 Cal.4th at p. 1192.) a People v. Frye, supra, 18 Cal.4th 894, was disapproved on another groundin People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22. 83 oeIn closing argument, the ‘prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.’ ” (People v. Dykes, supra, 46 Cal.4th at p. 768, quoting People v. Ledesma (2006) 39 Cal.4th 641, 726.) While a prosecutor “may not mislead the jury,” he or she “has a broad range within which to argue the facts and the law.” (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758.) | There was no misconductin violation of either the state or federal constitution in this case. Foremost, Johnson’s complaint about addressing the jurors individually fails to appreciate that the prosecutor’s remarks were madein penalty phase closing argument. Asinstructed in the penalty phase, each of the jurors was required to assign his or her own moral and sympathetic value to the aggravating and mitigating circumstances, decide for herself or himself whether the aggravating or mitigating factors existed, individually assign “whatever weight he or she believes is appropriate” for a factor, and personally consider whether the aggravating factors outweigh the mitigating so substantially as to warrant a death sentence. (19 CT 4841-4843 [CALCRIM No. 766].) In contrast to the prosecutor’s remarks here, an argument which “may have lessened the jurors’ sense of responsibility to individually arrive at an appropriate penalty determination” would have . been improper. (See People v. Walker (1988) 47 Cal.3d 605, 647, citing People v. Milner (1988) 45 Cal.3d 227, 255-256.) Thus, to the extent the prosecutor impressed each juror with his or her personal and individual responsibility to arrive at an appropriate penalty by addressing them separately, the argument wasproper. Respondentrecognizesthat this Court held in People v. Wein (1958) 50 Cal.2d 383 (Wein), overruled on another ground in People v. Daniels 84 (1969) 71 Cal.2d 1119, 1140, that “arguments should be addressed to the jury as a body and thepractice of addressing individual jurors by name during the argumentshould be condemnedrather than approved”in penalty phase closing argument. (/d. at p. 395.) However,the opinion in Wein does not describe the offending argumentor articulate the context in which the prosecutor addressed individualjurors by name. (See id. at pp. 395- 396.) In People v. Freeman (1994) 8 Cal.4th 450, this Court extended the Wein rule to bar counsel from quoting voir dire statements from individual jurors in penalty phaseclosing argument. (Jd. at pp. 517-518, quoting Wein and citing Neumann v. Bishop (1976) 59 Cal.App.3d 451, 473.) The concern in Neumann was “any implication of rapprochement”with individual jurors. (Neumann vy. Bishop, supra, 59 Cal.App.3d at p. 474.) The prosecutor’s argumentin this case did notviolatethis principle. Asstated, the prosecutorwasessentially impressing upon each jurorhis or her obligation to personally and individually weigh the aggravating and mitigating factors in deciding on an appropriate penalty. The prosecutor wasnotattemptingto flatter or curry favor with any individual juror by quoting or addressingthe juror by name. Rather, by addressing each ofthe twelvejurorsin genericfashion with the same rhetorical question, the prosecutor wasin effect addressing the jury as a whole. In addition to Wein, Johnson seeksto rely on People v. Sawyer (1967) 256 Cal.App.2d 66, 78; People v. Davis (1970) 46Ill.2d 554, 560, 264 N.E.2d 140, 143; and State v. Ryerson (1955) 247 lowa 385, 392-393, 73 N.W.2d 757, 762. (AOB 99-100.) However, the prosecutor in Sawyer addressed jurors individually on twelve different occasions (People v. | Sawyer, supra, 256 Cal.App.2d at p. 78); the prosecutor in Davis played upon “personal circumstancesand fears” ofindividualjurors, the details of _ which were omitted from the opinion (People v. Davis, supra, 46 Ill.2d at p. 85 560, 264 N.E.2d at p. 143); and the prosecutor in Reyerson pointedly asked four jurors who were parents whether they would like the idea of their children being supplied alcohol and getting into a car accident as occurred in the case (State v. Ryerson, supra, 247 Iowaat p. 592, 73 N.W.2d atp. 761). No such misconduct occurred here. Accordingly, Sawyer, Davis and Ryerson are materially distinguishable and do notassist Johnson’sclaim. Evenifthe prosecutor’s argument technically violated the Wein rule, it clearly did not rise to the level of conduct which “‘infects the trial with such unfairness as to make the conviction a denial of due process’ ” or constitute “deceptive or reprehensible methods ofpersuasion.” (See People v. Doolin, supra, 45 Cal.4th at p. 444.) Accordingly, there was no misconduct undereither the federalor state constitution, and the judgment should be affirmed.” D. The Alleged Error Was Harmless Notwithstanding Johnson’sforfeiture of any challenge on appeal and the propriety of the prosecutor’s penalty phase argument, any alleged error was harmless. To assess prejudice from improperpenalty phase argument, this Court applies the “reasonable possibility” test ofPeople v. Brown, supra, 46 Cal.3d at p. 448. (People v. Gonzales, supra, 51 Cal.4th at p. ” Tt was also properfor the prosecutor to ask the jurors to consider the feelings of Miller’s and Lamons’ surviving family members. This Court has repeatedly “held that it is proper at the penalty phase for a prosecutor to invite the jurors to put themselvesin the place of the victims and imaginetheir suffering.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1212; see People v. Roybal (1998) 19 Cal.4th 481, 530, fn. 17.) “[JJust as a prosecutor mayask the jurors to put themselves in the shoes of the victim, a prosecutor mayask the jurors to put themselvesin the place ofthe victim’s family to help the jurors consider how the murderaffected the victim’s relatives.” (People v. Jackson (2009) 45 Cal.4th 662, 692 [finding no misconduct].) Johnson doesnot challenge this aspect of the prosecutor’s argument. (See AOB 97-104.) . 86 953.) “Thus, we must decide whether there is a reasonablepossibility that the jury would have returned a different penalty verdict absent the” alleged misconduct. (Ibid. ) | It is notablethat, albeit under various harmless error standards,all of the cases upon which Johnsonrelies for his misconduct claim founderrorin addressing jurors individually to be non-prejudicial. (See Wein, supra, 50 Cal.2dat pp. 395-397; People v. Sawyer, supra, 256 Cal.App.2dat p. 78- 79; People v. Davis, supra, 46 Il.2d at p. 560, 264 N.E.2dat p. 143; State v. Ryerson, supra, 147 Iowaat pp. 392-393, 73 N.W.2d at p. 762;see also People v. Freeman, supra, 8 Cal.4th at p. 518 [finding quote ofjuror harmless]; Neumann v. Bishop, supra, 59 Cal.App.3d at p. 474 [“In content the remark appears harmless”}.) | . In determining the prejudicial effect of improper penalty phase argument, the error should be considered in context of the aggravating evidence, the significance of the offending commentin the prosecution argumentas a whole, and the balancing effect of the defense in closing argument. (See People v. Welch (1999) 20 Cal.4th 701, 762.) As discussed in Argument V(C), ante, the Lamons and Nordeen murders were particularly brutal and the evidence in aggravation was nothing short of overwhelming while the evidence offered in mitigation was unconvincing and evenif credited, paled by comparison. Accordingly, there is not a reasonable possibility that the prosecutor’s rhetorical remarks in penalty phase argumentaffected the verdict, the alleged error was harmless, and the judgment should beaffirmed. (See People v. Gonzales, supra, 51 Cal.4th at p. 953 [“rhetorical flourishes” by prosecutor in penalty phase argument harmlessin light of egregiousfacts ofthe capital murder].) 87 . E. Johnson Fails to Demonstrate Ineffective Assistance of Counsel Asexplained above, it was not misconductfor the prosecutor to impress uponthe jurors their personal and individualized responsibilities in arriving at a penalty verdict. Thus, defense counsel wasnot deficient for failing to object to the argument. To the contrary, an objection would have risked relieving the jurors of that heavy personal burden to Johnson’s detriment. Also, as shown above, it is not reasonably probable that Johnson would have received more favorable verdicts in the absenceofthe prosecutor’s rhetorical comments. Since Johnson cannotsatisfy his burdens of showing deficient performance and prejudice, his ineffective assistance claim should be rejected. (See Strickland, supra, 466 U.S. 668 at pp. 687-695; People v. Wash, supra, 6 Cal.4th at p. 271.) VII. THERE WAS No CUMULATIVE EFFECT OF GUILT OR PENALTY PHASE ERRORS WARRANTING REVERSAL Johnson argues the cumulative effect of the guilt and penalty phase errors claimed on appeal requires reversal of the judgment. (AOB 105- 106.) The claim is meritless. _ This Court has recognized that multiple trial errors may have a - cumulative effect. (People v. Hill (1998) 17 Cal.4th 800, 844-848; People v. Holt (1984) 37 Cal.3d 436, 458-459.) In a “closely balanced”case,this cumulative effect may warrant reversal of the judgment“whereit is reasonably probable”that it affected the verdict. (People v. Wagner (1975) 13 Cal.3d 612, 621.) | If the reviewing court rejects all ofa defendant’s claimsoferror, it should reject the contention of cumulative error as well. (People v. Anderson (2001) 25 Cal.4th 543, 606; People v. Bolin, supra, 18 Cal.4th at p. 335.) Where “nearly all of [a] defendant’s assignments of error” are 88 rejected, this Court has also declined to reverse based on cumulativeerror.” (People v. Bradford (1997) 14 Cal.4th 1005, 1057.) Asdiscussed in ArgumentsI through VI, ante, there were noerrors in either the guilt or penalty phase. Even assumingfor purposes of argument a technicalviolation of the Wein rule in penalty phase argument, there would be nothing to aggregate. (See, e.g., People v. Sattiewhite (2014) 59 Cal.4th 446, 491 [onepossible trial court error]; People v. Bennett (2009) 45 Cal.4th 577, 618 [“single erroneous evidentiary ruling”]; People v. Koontz, supra, 27 Cal.4th at p. 1094 [single non-prejudicial instructional error in guilt phase]; People v. Hughes, supra, 27 Cal.4th at p. 407 [“one possible significanterror” at penalty phase]; People v. Jones, supra, 17 Cal.4th at p. 315 [single “ministerial error in imposing an incorrect sentence” on non-capital count]; People v. Williams (1997) 16 Cal.4th 153, 228-229 [single instructional error].) Accordingly, there can be no cumulative error and the judgment should be affirmed. VIII. CALIFORNIA’S DEATH PENALTY STATUTEIS CONSTITUTIONAL Johnson challenges the constitutionality of California’s death penalty statute in general and as applied in his case, acknowledgingthat each ofhis claims has consistently been rejected by this Court. (AOB 107-143.) As Johnson presents no new argumentsor persuasive reasonsto revisit these issues, respondenturges this Court to reaffirm its prior holdings finding 73 « ‘[A] defendant is entitled to a fair trial, but not a perfect one,’ for there are no perfect trials. [Citations.]” (Brown v. United States (1973) 411 U.S. 223, 231-232 [93 S.Ct. 1565, 36 L.Ed.2d 208]; see also People v. Bradford, supra, 14 Cal.4th at p. 1057; People v. Cooper (1991) 53 Cal.3d 771, 839.) 89 California’s death penalty statute, relevant instructions and sentencing schemeconstitutional.” Johnson claims section 190.2 is impermissibly broad becauseit fails to meaningfully narrow the types of first degree murderseligible for the death penalty. (AOB 109-110.) This claim has repeatedly been rejected. (People v. Sattiewhite, supra, 59 Cal.4th at p. 489; People v. Cowan (2010) 50 Cal.4th 401, 508; People v. Verdugo (2010) 50 Cal.4th 263, 304; People v. Williams, supra, 49 Cal.4th at p. 469.) Johnson claims factor (a) of section 190.3 is impermissibly overbroad because it permits the jurors to consider “the circumstance of the crime” withoutlimitation, thus allowing arbitrary and capricious imposition of the death penalty. (AOB 111-113.) This Court has previously rejected this claim. (People v. Sattiewhite, supra, 59 Cal.4th at p. 490; People v. Foster (2010) 50 Cal.4th 1301, 1362-1364; People v. Russell, supra, 50 Cal.4th at p. 1274; People v. Jennings, supra, 50 Cal.4th at pp. 688-689; People v. Lomax (2010) 49 Cal.4th 530, 593.) . Johnson claims California’s death penalty statute is unconstitutional becauseit does not require the jury to find beyond a reasonable doubt that the factors in aggravation existed, unanimously agree on the presence of aggravating factors, or find beyond a reasonable doubtthat the factors in ageravation outweigh those in mitigation in order to imposea death sentence. (AOB 115-129.) These claims have repeatedly been rejected. (People v. Sattiewhite, supra, 59 Cal.4th at pp. 489-490; People v. Howard (2010) 51 Cal.4th 15, 39; People v. Foster, supra, 50 Cal.4th at p. 1367; ™ Johnson summarily presents his claims in “abbreviated fashion.” (AOB 107.) Likewise, rather than burden this Court with arguments that have repeatedly been presented in past cases, respondent will simply cite to recent cases which haverejected the claims and arguments raised by Johnson. 90 People v. Russell, supra, 50 Cal.4th at p. 1272; People v. Lynch (2010) 50 Cal.4th 693, 766; People v. Verdugo, supra, 50 Cal.4th at p. 304; People v. Williams, supra, 49 Cal.4th at p. 470.) Johnson invites this Court to reconsider these prior holdings in light ofApprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and its progeny. (AOB 115, 118-123.) This has already been done in numerousrecent cases, and the outcome remains unchanged. (People v. Sattiewhite, supra, 59 Cal.4th at pp. 489-490; People v. Russell, supra, 50 Cal.4th at pp. 1271-1272; People v. Jennings, supra, 50 Cal.4th at p. 689; People v. Verdugo, supra, 50 Cal.4th at pp. 304-305; People v. Lomax, supra, 49 Cal.4th at p. 594.) | Johnson claims California’s death penalty statute is unconstitutional becauseit does not require written findings from the jury which are necessary for meaningful appellate review of the penalty verdict. (AOB 129-131.) This claim has previously been rejected by this Court. (People y, Sattiewhite, supra, 59 Cal.4th at p. 490; People v. Howard, supra, 51 Cal.4th at p. 39; People v. Foster, supra, 50 Cal.4th at pp. 1365-1366; People v. Russell, supra, 50 Cal.4th at p. 1274; People v. Lynch, supra, 50 Cal.4th at p. 766.) | Johnson claims California’s capital sentencing schemeis unconstitutional because it does not allow for intercase proportionality review to guarantee against arbitrary and disproportionate application. (AOB 132-133.) This argumenthas consistently been rejected. (People v. Sattiewhite, supra, 59 Cal.4th at p. 490; People v. Howard, supra, 51 Cal.4th at p. 39; People v. Foster, supra, 50 Cal.4th at p. 1368; People v. Russell, supra, 50 Cal.4th at p. 1274; People v. Lynch, supra, 50 Cal.4th at p. 767.) , Johnson claims the use ofunadjudicated criminal activity as an aggravating circumstance undersection 190.3, factor (b), violates due 91 process. (AOB 134-135.) This argument has previously been rejected. (People v. Martinez (2009) 47 Cal.4th 399, 455; People v. McWhorter (2009) 47 Cal.4th 318, 378; People v. Richardson (2008) 43 Cal.4th 959, 1031; People v. Morrison (2004) 34 Cal.4th 698, 729; People v. Ramos (2004) 34 Cal.4th 494, 533.) Johnsonclaimsthelist of “restrictive adjectives” such as “extreme” and “substantial” in section 190.3, factors (d) and (g), is unconstitutional becauseit impermissibly limits consideration of mitigating factors. (AOB 135.) This argumenthas repeatedly been rejected. (People v. Martinez, supra, 47 Cal.4th at p. 455; People v. McWhorter, supra, 47 Cal.4th at pp. 378-379 People v. Morrison, supra, 34 Cal.4th at p. 729-730; People v. Ramos, supra, 34Cal.4th at p. 533; People v. Cunningham (2001) 25 Cal.4th at 926, 1041.) . Johnson claimsthetrial court’s failure to identify which factors under section 190.3 are mitigating andrestrict the jury’s consideration of those factors precludeda fair and reliable penalty verdict. (AOB 135-138.) This Court has consistently rejected this claim. (People v. Sattiewhite, supra, 59 Cal.4th at p. 490; People v. Martinez, supra, 47 Cal.4th at p. 455-456; People v. McWhorter, supra, 47 Cal.4th at p. 378; People v. Ramos, supra, -34 Cal.4th at p. 533; People v. Brown (2004) 33 Cal.4th 382, 402.) Johnson claims California’s capital sentencing schemeviolates equal protection because it affords non-capital defendants more procedural protections than capital defendants. (AOB 138-140.) This claim has repeatedly been rejected. (People v. Sattiewhite, supra, 59 Cal.4th atp. 490; People v. Russell, supra, 50 Cal.4th at p. 1274; People v. Jennings, supra, 50 Cal.4th at p. 690; People v. Verdugo, supra, 50 Cal.4that p. 305; People v. Lomax, supra, 49 Cal.4th at p. 594.) ~ Johnson claims California’s “regular use ofthe death penalty”is unconstitutional becauseit violates or falls short of international norms and 92 evolving standards of decency. (AOB 141-143.) This argument has consistently been rejected. (People v. Howard, supra, 51 Cal.4th at pp. 39- 40; People v. Foster, supra, 50 Cal.4th at p. 1368; People v. Lynch, supra, 50 Cal.4th at p. 766; People v. Jennings, supra, 50 Cal.4th at p. 689.) _ Although Johnson acknowledgesthateachofthe claimed defects in California’s death penalty scheme has previously been rejected, he contendsthat this Court has done so “without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole.” Arguingthis “approach is constitutionally defective,” Johnson asks this Court to reconsider each ofhis claims “in the context of California’s entire death penalty system.” (AOB 107.) An identical argument wasrecently rejected in People v. DeBose (2014) 59 Cal.4th 177, 214.) This Court explained: As, however, California’s death penalty schemeis not faulty in any of the respects described by defendant and noneofthe proposed safeguards for those alleged defects are constitutionally required, no constitutional violation appears even whenthe alleged defects are considered collectively. ([bid., citing People v. Lucero, supra, 23 Cal.4th at p. 741.) “California’s capital sentencing schemeas a whole provides adequate safeguards against the imposition of arbitrary or unreliable death judgments.” (People v. Williams (2008) 43 Cal.4th 584, 648.) All of Johnson’s constitutional challenges to the death penalty should be rejected and the judgmentaffirmed. 93 CONCLUSION - Accordingly, for the reasonsstated, respondentrespectfully requests that the judgmentbe affirmedinits entirety. Dated: October 20, 2014 RAJ/Ih $D2009703341 8095993 1.doc Respectfully submitted, _KAMALAD. HARRIS Attorney General of California JULIE L. GARLAND . Senior Assistant Attorney General HOLLY D. WILKENS _ | Supervising Deputy Attorney General Kewell@jrabet— RONALDA. JAKOB Deputy Attorney General Attorneysfor Respondent. 94 CERTIFICATE OF COMPLIANCE I certify that the attached Respondent’s Brief uses a 13 point Times New Romanfont and contains 25,950 words. Dated: October 20, 2014 KAMALAD. HARRIS Attorney General of California Keveld@fedhole— RONALDA. JAKOB Deputy Attorney General Attorneys for Respondent SUPREME COURT COPY SUPPLEMENTAL DECLARATION OF SERVICE BY U.S. MAIL Case Name: Peoplev. Billy Joe Johnson Case No.: S$178272 I declare: I am employed in the Office of the Attorney General, which is the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. ] am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 21, 2014, I served the attached Respondent’s Brief, by placing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: . Mark D. Lenenberg Habeas Corpus Resource Center Attorney at Law Attn: Dan Holzner P.O. Box 940327 303 Second Street, Suite 400 South Simi Valley, CA 93094-0327 San Francisco, CA 94107 Counsel for Appellant Wesley A. Van Winkle Honorable Frank F. Fasel, Judge Attorney at Law SUPREME COURT c/o Alan Carlson P.O. Box 5216 F | | ED Chief Executive Officer Berkeley, CA 94705 Orange County Superior Court 700 Civic Center Drive West OCT 23 2014 Santa Ana, CA 92701 , Michael Molfetta Frank A. McGuire Clerk Ebrahim Baytieh Attorney at Law Deputy District Attorney 4425 Jamboree Road, Suite 130 Deputy Orange County District Attorney's Office Newport Beach, CA 92660 401 Civic Center Drive West Trial Counsel Santa Ana, CA 92701 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 21, 2014, at Sanmeee California. L. Hernandez 2Ny Declarant srmondey $D200970334) 80962468.doc DEATH PENALTY DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Billy Joe Johnson Case No.: $178272 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 20, 2014, I served the attached Respondent’s Brief, by placing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Mark D. Lenenberg Habeas Corpus Resource Center Attorney at Law Attn: Dan Holzner P.O. Box 940327 303 SecondStreet, Suite 400 South Simi Valley, CA 93094-0327 San Francisco, CA 94107 Counsel for Appellant Michael G. Millman Honorable Frank F. Fasel, Judge Executive Director c/o Alan Carlson California Appellate Project (SF) Chief Executive Officer 101 SecondStreet, Suite 600 Orange County Superior Court San Francisco, CA 94105 700 Civic Center Drive West Santa Ana, CA 92701 Michael Molfetta Ebrahim Baytieh Attorney at Law Deputy District Attorney 4425 Jamboree Road, Suite 130 Orange County District Attorney's Office Newport Beach, CA 92660 401 Civic Center Drive West Trial Counsel . Santa Ana, CA 92701 I declare underpenalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on OctoberNanoat San Diego, California. L. Hernandez Declarant Signature $D2009703341_ 80962468.doc