Opinion
Super. Ct. No. SCD199190
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed in part; reversed in part with directions.
HALLER, Acting P. J.
Peter Johnson challenges a judgment convicting him of first degree murder. He contends the prosecutor committed misconduct by cross-examining him in a manner that caused him to disclose his prior convictions, and that the trial court erred in admitting additional evidence of these prior convictions. We find no reversible error.
Johnson additionally challenges orders that he pay restitution and a court security fee. We find error as to the restitution orders but no error as to the court security fee. The judgment is affirmed as to guilt, and reversed as to the restitution orders with directions to reconsider the issue of a restitution fine.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, Detective Robert Donaldson, a detective with the San Diego police department's homicide cold case team, received a series of telephone calls from Johnson, who was living in Oklahoma. In these calls (some of which were recorded), Johnson told Detective Donaldson that he had committed a homicide in San Diego many years earlier, and provided various details concerning the crime. Detective Donaldson searched old police records and found a record of the homicide, which had occurred on September 17, 1978. The victim was 19-year-old Robert Spencer.
During a taped telephone interview on May 19, 2006, Johnson described the homicide and the circumstances leading up to it. Johnson stated that he sometimes stayed with a friend (Frank Edwards) who lived in the same apartment complex where victim Spencer lived. During this time period (the 1970's), Johnson was heavily involved with drug use, and he connected Spencer with a marijuana supplier. Thereafter, Johnson was told that on one occasion when Spencer was left alone with the marijuana supplier's young daughters, Spencer molested one of the girls. Johnson decided to talk to Spencer about this. An opportunity to do so presented itself when Spencer and Johnson were in Spencer's car.
Johnson, who had just used some heroin, was in the back seat and Spencer was in the front driver's seat. Johnson told Spencer that he needed to ask him " 'about those two little girls and what you did there.' " Spencer had "guilt written on [his] face" and started stammering. Based on Spencer's reaction, Johnson stated, "Well, I guess you know what this is all about don't ya?" Johnson then shot Spencer with a .38-caliber special gun in the back of his head under his right ear. After the shooting, Johnson dragged the body out of the car and put it in the trunk, drove the car to an alley off Murray Ridge Road, and abandoned the vehicle there.
Johnson told Detective Donaldson that he killed Spencer because he hated child molesters; he felt responsible because he had introduced Spencer to the marijuana supplier; he "just freaked"; and at the time he thought killing Spencer was the best solution. He stated he and Edwards were questioned by detectives at the time of the killing, but Edwards had nothing to do with it. When Detective Donaldson inquired why Johnson decided to call the police, Johnson explained that he had been living with what he did his entire life; he felt like "hell" inside for having killed someone; he had twice "had . . . a gun to [his] head"; he had met good people in Oklahoma, including a woman he was going to marry; and he had confessed his crime to his pastor and been advised to contact the police or he would go "nuts."
On May 24, 2006, Detectives Donaldson and Lynn Rydalch conducted a videotaped interview with Johnson in Oklahoma. During this lengthy interview Johnson again detailed the circumstances leading to the shooting and acknowledged that he committed the crime. Johnson's description of the manner in which he killed Spencer and disposed of his body was consistent with the information acquired by the authorities at the time of the homicide.
At the May 24 interview, Johnson did not provide details about the actual shooting in the car. He told the detectives he had spoken with an attorney, and he did not want to discuss the actual shooting in a recorded statement without the advice of an attorney regarding his options for a reduced sentence in a plea bargain. He acknowledged, however, that he committed the crime and that his earlier statements to Detective Donaldson were truthful.
By the time of trial, Johnson recanted his confession. Testifying on his own behalf, he stated that when he called Detective Donaldson in May 2006, he had lost his job, he was living in his car, he had no money, and he was drinking alcohol and contemplating suicide. He had known Spencer in San Diego, and he knew details about his death from news reports and from statements made by the detective who interviewed him at the time of the homicide. He claimed that in desperation, he formulated a plan that he would falsely confess to the murder, make a deal to go to prison for about three years, collect Social Security and save money, and have a new start in life when he was released.
The jury found Johnson guilty of first degree murder and that he personally used a firearm in the commission of the offense.
DISCUSSION
I. Prior Convictions
Johnson contends he was deprived of a fair trial based on improper questioning by the prosecutor and ensuing admission of evidence regarding his prior convictions.
Background
Prior to trial, the court and the parties briefly discussed the issue of whether Johnson's prior convictions for burglary (incurred in 1969, 1975, and 1979) should be admissible as impeachment evidence should Johnson choose to testify. The court decided to defer resolution of the issue until Johnson decided whether to testify. Thereafter, during the prosecution's case in chief, the prosecutor alerted the trial court that he was planning to introduce into evidence Detective Donaldson's May 24 videotaped interview with Johnson, and that the videotape contained statements referring to Johnson's prior convictions. Accordingly, the court decided to resolve the issue of whether the prior convictions were admissible for impeachment should Johnson testify. Defense counsel argued the prior convictions were too remote to be relevant and were more prejudicial than probative. The prosecutor argued they were relevant to Johnson's credibility should Johnson testify and refute his earlier confessions. He also maintained they were not unduly prejudicial because they were not similar to the charged offense and were not inflammatory in nature.
Prior to this point in the trial, the prosecutor had presented two tapes of recorded conversations with Johnson that alluded to his prior convictions. Based on the admission of this evidence, defense counsel had moved for a mistrial. This evidence consisted of Johnson's statement that a recent background check by an employer uncovered "five hits" and Johnson's question asking if he could access his bank account in jail because he now had money whereas back in the 1970's he did not. The trial court denied the mistrial motion, finding the references to his criminal history were vague and could not have caused prejudice.
The trial court concluded the prior convictions were too remote to have significant probative value, noting that Johnson had not engaged in any serious criminal conduct for 26 years. The court ruled the prior convictions could not be used to impeach Johnson should he testify, unless "the door, in some fashion, gets specifically opened on direct or cross-examination . . . ."
The court and the parties next discussed whether references to Johnson's prior criminal record needed to be redacted from the May 24 videotaped interview before it was played for the jury. The prosecutor agreed that given the court's ruling excluding the prior convictions, the references to Johnson's criminal background should be removed from the tape. However, after conferring with Johnson, defense counsel withdrew his objection to presentation of the unredacted videotape to the jury. Johnson, with his counsel's agreement, stated that he had "no objections whatsoever" to the full tape being entered into evidence.
Later, when Johnson informed the court that he planned to testify, the trial court stated its view that Johnson's agreement that his criminal history should not be redacted from the videotaped interview constituted a waiver of his right to object to use of his prior convictions for impeachment. However, the court decided that it would maintain its ruling that the prosecutor could not cross-examine Johnson about the prior convictions unless Johnson testified about them.
Trial before the jury recommenced, and the May 24 videotaped interview was played for the jury. During this interview, Detective Donaldson asked Johnson if he had a criminal history. Johnson stated that he had "never been a criminal," and that his prior offenses were not really crimes but were "chicken shit burglary crap" that he committed when he was a "kid" acting like "an idiot." Johnson explained that on one occasion, after a disagreement with a restaurant employee, he broke into the restaurant and stole some meat hanging from a hook, and the police came to his home and found the meat. On another occasion, when he was drunk, he broke into a gas station with no intention of stealing anything; he was a "total basket case" and did not know why he had gone there. He got "popped" for this conduct. On a third occasion, he stole a guitar that he could not afford to buy. Detective Donaldson noted that Johnson had a "pretty clean" record with no recent offenses and that he did not appear to be a violent person. At another point during the interview Johnson stated that the "worst [he had] ever had was first and second degree burglary . . . ."
At trial, after Johnson testified that he falsified the confession with a plan to obtain a short, plea-bargained sentence and a reprieve from his homelessness and financial distress, the prosecutor cross-examined Johnson as follows:
"[Prosecutor:] So you were willing to walk into court, raise your hand under oath and say, 'Yes, I shot and killed that man?' "
"[Johnson:] Well, if that would have happened, I got to make a deal, it wouldn't have been going to any court. I would have signed the paperwork and off I go. [¶] But, yes. In answer to your question, yes. If we had come to that and if I had to do that in order to process this scenario, I would have stepped into court and said, 'Yes, I will do it.' "
The prosecutor continued cross-examination on this point, and the following exchange occurred:
"[Prosecutor:] Well, you know from your experience, reading, TV and all, eventually someone charged with a crime would have to come in front of a judge and he pleads guilty or not guilty. If he pleads guilty, he has to raise his hand, say he did that crime under oath and fill out a change of plea form saying what you did. [¶] You know that don't you?"
"[Johnson:] No, I've never had to do that."
"[Prosecutor:] Excuse me?"
"[Johnson:] I never had to do that. I usually sit there and my sentence was read and that was it."
Once Johnson referenced his prior experience with guilty pleas, the trial court told the prosecutor he could inquire further on this matter. Defense counsel objected, and a sidebar discussion ensued. Defense counsel argued that Johnson's response to the prosecutor's question should not be construed as "open[ing] the door" to evidence of his prior convictions because the question was confusing and invited an answer based on the prior convictions. The prosecutor responded that the question was intentionally vague; if Johnson had answered it truthfully that would have ended the matter; and because Johnson answered that he had no experience admitting a crime to the court it was appropriate to question him about the prior plea bargains to show that he did have this experience.
The trial court ruled the prosecutor's question was permissible. The court reasoned the question was appropriate cross-examination on the issue of Johnson's plan to falsely confess, and it was phrased in vague terms without specifically asking Johnson to respond based on his prior guilty pleas. Further, when Johnson denied knowledge of the requirement that he had to admit the crime to the court, the jury was presented with "demonstrably false" information that the prosecutor was entitled to correct. The court also found that Johnson had essentially waived his right to object to questions about his prior convictions by agreeing to admission of the references to his prior criminal history in the May 24 videotaped interview. Accordingly, the trial court overruled the defense objection and allowed the prosecutor to present evidence regarding the prior convictions.
The prosecutor introduced into evidence copies of court documents for Johnson's 1975 and 1979 burglary convictions. The documents included the information or complaint, change of plea forms, probation orders, minute orders, and a commitment for narcotics treatment. The 1975 change of plea form states that Johnson pleaded guilty to second degree burglary and that his crime consisted of "entering a building with intent to steal and stealing some meat." The 1979 change of plea form states that he pleaded guilty to second degree burglary and that his crime consisted of "entry into a gas station with intent to steal items within." Both change of plea forms state that "[d]efendant personally and by his attorney . . . in open court moved to withdraw his plea(s) of not guilty . . . ."
The 1975 documents also reference a prior conviction that was stricken as part of the plea bargain. The 1975 charging document refers to a 1973 prior felony conviction for felony marijuana possession, but it is not clear from the record if Johnson or his codefendant (Edwards) incurred this conviction.
Referring to these documents, the prosecutor asked Johnson if for these convictions he had to "go in front of a judge and plead guilty and tell the judge what [he] did?" Johnson acknowledged that he committed the offenses and signed the change of plea forms, but stated he could not remember admitting the crimes in front of a judge. However, when queried further by the prosecutor he agreed that he realized he would have to "come in front of a judge and admit" that he committed the current murder, although he "probably didn't think about it . . . ."
Analysis
Johnson argues the prosecutor committed misconduct by cross-examining him in a manner likely to cause a response that would allow presentation of his prior convictions, and the trial court erred in ruling that Johnson's response " 'opened the door' " to permit introduction of the prior convictions evidence. We find no reversible error.
Given our holding, we need not discuss the Attorney General's forfeiture arguments.
Generally, a prosecutor has broad latitude in cross-examining a defendant. (People v. Chatman (2006) 38 Cal.4th 344, 382.) However, it is misconduct for a prosecutor to elicit or attempt to elicit inadmissible evidence in violation of a court order. (People v. Crew (2003) 31 Cal.4th 822, 839.) On appeal, we review the trial court's evidentiary rulings for abuse of discretion. (People v. Lancaster (2007) 41 Cal.4th 50, 103; People v. Jablonski (2006) 37 Cal.4th 774, 805.)
Here, when cross-examining Johnson about the plausibility of his claim that he formulated a plan to admit to a murder in order to obtain housing and save money, the prosecutor could properly inquire whether Johnson understood such a plan required him to admit the crime in court. The prosecutor asked Johnson two questions in this regard: (1) if he was willing to state under oath in court that he killed the victim, and (2) if from his "experience, reading, TV and all" he knew a person who pleads guilty has to admit the crime under oath in court and fill out a change of plea form saying what the person did. Johnson argues that because he answered the first question by stating that yes, he was willing to go to court and admit guilt, the prosecutor should not have asked the second question which was likely to elicit a response based on his past criminal experience. Even though Johnson answered the prosecutor's first question affirmatively, the trial court could reasonably conclude that the second question was permissible cross-examination because Johnson had also stated in his first answer that if he pleaded guilty to the murder he would not have gone to court but would have simply signed paperwork. This answer was contrary to established plea bargaining procedure and the prosecutor was entitled to continue cross-examination to reveal the misinformation.
Arguably, the prosecutor should not have used the term "experience" in the second question because it could be (and was) construed as asking for a response that included Johnson's personal experience with the criminal justice system. However, once Johnson answered the second question by stating that based on his experience he never had to admit the crime in court, it was reasonable for the trial court to permit the prosecutor to correct this misinformation by presenting evidence depicting Johnson's actual experience during his prior plea bargains. The trial court could consider that the jury already knew about the prior convictions based on Johnson's statements during the videotaped interview, and that the facts of the prior crimes were not inflammatory so as to create a danger that the jury would be improperly influenced by further references to them.
Johnson argues that in the videotaped interview, he never stated that he incurred convictions from his prior criminal activity. During the videotaped interview, in addition to describing the facts of the offenses, Johnson expressly stated he had committed "first and second degree burglary." His statements strongly suggested that he had incurred convictions, and we are satisfied the jury would logically have assumed so.
Alternatively, to the extent there was error in the prosecutor's question or in the admission of the prior conviction evidence, the error was harmless even assuming we apply the harmless beyond a reasonable doubt standard for federal constitutional error. (See People v. Cole (2004)33 Cal.4th 1158, 1195 & fn. 6; People v. Hinton (2006) 37 Cal.4th 839, 865; People v. Bolton (1979) 23 Cal.3d 208, 214.) Under this standard, the People must show there is no reasonable possibility the error affected the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Lewis (2006)139 Cal.App.4th 874, 885, 887.)
As stated, the jury was aware of Johnson's prior criminal history from the videotaped interview, and the facts of his prior offenses involved miniscule wrongdoing in comparison to the current murder charge. We are not persuaded by Johnson's assertion that the prior conviction evidence was pivotal to the jury's evaluation of whether he truthfully testified that his pretrial confessions were false. The jury's determination of this issue rested on the plausibility of his trial testimony and the strength of his confessions to the detectives. The jury knew from the videotape that he had committed the prior burglaries, and we are satisfied the additional evidence presented in this regard was not of any great significance to the jury's resolution of the case.
The record reveals another instance during cross-examination when the prosecutor referred to the prior convictions by asking Johnson why he did not carry out his plan to go to prison and save money by committing an offense akin to his prior burglaries which would carry a lesser sentence than murder. Johnson does not cite this testimony in his arguments, and we would not find it constituted reversible error.
There is no reasonable possibility the prosecution's presentation of the prior conviction evidence affected the verdict. Accordingly, any error does not warrant reversal.
II. Restitution
The trial court ordered that Johnson pay the following: (1) $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)); (2) $1,900 restitution for the victim's economic loss (§ 1202.4, subd. (f)); and (3) $10,000 parole revocation restitution fine, suspended unless parole is revoked (§ 1202.45). The Attorney General concedes that imposition of these fines violated the constitutional prohibition against ex post facto laws. (See People v. Callejas (2000) 85 Cal.App.4th 667, 669-670.) The Penal Code provisions authorizing these fines were enacted in 1983 and 1995, respectively, whereas the murder was committed in 1978. (Historical and Statutory Notes, 50D West's Ann. Pen. Code (2004 ed.), foll. § 1202.4, p. 175; Stats. 1995, ch. 313 (A.B. 817), § 6, eff. Aug. 3, 1995.) The parties agree the matter should be remanded for a determination whether a fine should be imposed under the version of former Government Code section 13967 that was operative at the time of the crime. (Stats. 1977, ch. 1122, § 3.)
Subsequent statutory references are to the Penal Code unless otherwise specified.
III. Court Security Fee
The court ordered Johnson to pay a $20 court security fee pursuant to section 1465.8. Section 1465.8 was enacted in 2003. (Historical and Statutory Notes, 51A West's Ann. Pen. Code (2007 supp.) foll. § 1465.8, p. 106.) Johnson contends this order violates the statutory provision that Penal Code provisions are not retroactive unless expressly so declared. (§ 3.) The California Supreme Court has recently resolved this issue. In People v. Alford (2007) ___ Cal.4th ___ [2007 Cal. LEXIS 13744], the court held that the $20 court security fee could be imposed retroactively. The Alford court explained that section 3 has been construed to mean that a "'new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling indication that the Legislature intended otherwise.'" (Id. at p. *4, italics added.) Noting that section 1465.8's legislative history indicated an intent that the fee operate as quickly as feasible to achieve budgetary goals, the court held the Legislature intended to impose the fee on all convictions incurred after the statute's operative date. (People v. Alford, supra, at pp. *5-8.) The court also found the fee did not violate the ex post facto prohibition because it did not constitute punishment. (Id. at pp. *8-19.) Based on the holding in Alford, Johnson's challenge to this fee fails.
DISPOSITION
The judgment is affirmed as to guilt. We reverse the restitution orders under sections 1202.4 and 1202.45. The matter is remanded for consideration of whether a fine is appropriate under former Government Code section 13967. In all other respects, the sentence is affirmed.
WE CONCUR:
McDONALD, J., McINTYRE, J.