P. v. Johnson













Filed 12/27/12 P.
v. Johnson CA3











NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. BRYAN CORDELL JOHNSON, Defendant and Appellant.

C068885 (Super. Ct. No. 09F06047)

Convicted
of first degree murder, defendant Bryan Cordell Johnson argues on appeal that
the trial court erred in admitting evidence of prior href="http://www.fearnotlaw.com/">sexual assaults he committed and in
instructing the jury that the People did not have to prove motive.
We disagree and affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

In
light of the arguments on appeal, the underlying facts may be briefly
stated. In November 2007, the body of
Sofia Marquez was found in a wooded area on a small hill near a freeway onramp
to Highway 99 in Sacramento. She was wearing a camisole top with a tank top over it, both of
which had been pushed up underneath her armpits. She had no clothes on below her waist,
including shoes and socks. Her body had
been covered with branches broken off nearby trees. She had pinpoint hemorrhages in her eyes,
which is indicative of asphyxiation or strangulation. The forensic pathologist who conducted the
autopsy concluded she died from manual strangulation with hands or arms. The pathologist found no physical evidence of
a sexual assault. Later, however, a
criminalist found a single sperm head on a swab from the introital area (the
entrance to the vagina).

During
the victim’s autopsy, scrapings were taken from under her fingernails. In August 2009, it was determined that the
material from under the victim’s nails contained defendant’s DNA. Defendant was charged with first degree
murder.

Before
trial, the People moved to admit evidence that on several occasions defendant
had choked his wife when she refused to have sex with him. (We will sometimes refer to this as the other
crimes evidence.) The People contended
the evidence of these “prior uncharged sexual offenses” was admissible under
subdivision (b) of Evidence Codehref="#_ftn1" name="_ftnref1" title="">[1] section 1101 “to prove common plan and scheme, [and the] intent to
strangle a resisting victim when seeking sex.”
The People also contended the evidence was admissible under section 1108
“to prove the Defendant’s propensity to commit sexual offenses and to utilize
strangulation when faced with a resisting victim.”

At
the hearing on the People’s motion, defense counsel argued that “there was
absolutely no evidence of an attempted sexual assault” in the present case and
“[t]herefore, [section] 1108 does not apply at all and [the evidence] should
not come in.” The prosecutor responded
that there was evidence of attempted rape in where the victim’s body was
located, the way it was positioned, the way the strangulation marks occurred,
the position of her shirt, and her missing pants and shoes. Defense counsel asserted that the evidence of
only a single sperm head in the victim’s vaginal area “suggest[ed] that sexual
contact occurred earlier, and, therefore, what the Court is left with is
basically no evidence of any sexual contact whatsoever.” Defense counsel added that absent any
evidence of a sexual crime other than the other crimes evidence it “wouldn’t be
appropriate” to admit the other crimes evidence.

The
trial court concluded that the evidence defendant had attempted to strangle his
wife when she refused his sexual advances was admissible under section 1101,
subdivision (b) because it was relevant to motive and intent because the victim
“whom the Defendant denies knowing, was found nude from the waist down and her
top was pulled up, revealing her
breasts. The Defendant’s DNA was found
under her fingernails, and she was strangled.”
The court found that the location and position of the victim’s body was
“circumstantial evidence that the crime was of a sexual nature.” The court also concluded that “the evidence
of the prior conduct [wa]s not inflammatory or prejudicial compared to the allegation
in this case” and “[t]he presentation of the evidence involves a single witness
and will not result in an undue consumption of time.”

The
court also concluded the other crimes evidence was admissible under section
1108 because “[t]he fact[s] alleged in this case and the facts alleged in the
prior instance constitute sexual offenses.”
In reaching this conclusion, the court concluded that “the proffered
evidence [is] highly relevant to . . . sexual propensity” and “is not
inflammatory and is far less serious than the alleged offense charged.”

The
jury found defendant guilty of first
degree murder, and the trial court sentenced him to 25 years to life in
prison.

DISCUSSION

I

Admissibility Of Other Crimes Evidence

On
appeal, defendant contends there was insufficient evidence to establish a
proper foundation for admission of the other crimes evidence, whether the
evidence was admitted under section 1101, subdivision (b), or under section
1108. Under section 1101, defendant
contends that to prove his “sexual motive and intent, the[re] would have to be,
as a preliminary matter, sufficient evidence that the charged crime was indeed
sexually based or motivated in order to confer a focused significance on the
uncharged crime.” In other words,
defendant contends that there had to be sufficient proof that the victim was
killed in the course of an attempted rape -- irrespective of the other crimes
evidence -- before the other crimes evidence could be properly admitted on the
issue of motive or intent. In
defendant’s view, the evidence of the victim’s “partial nudity and the single
sperm head found on the introital swab was insufficient to establish this
foundation.”

Defendant
offers a similar argument regarding section 1108. According to him, “[t]he charged crime cannot
be transmuted into a sexual offense merely because the prosecution advances a
theory that makes it a sexual offense once evidence of a collateral sexual
offense i[s] introduced.” To support this
argument, he relies on the same case that is the centerpiece to his argument
under section 1101, subdivision (b) -- People
v. Guerrero (1976) 16 Cal.3d 719. As
we will explain, however, Guerrero is
distinguishable from this case in two very important respects, and the
difference between the two cases supports the trial court’s admission here of
the other crimes evidence under section 1108.

In
Guerrero, the defendant was charged
with the murder of a young woman who was found dead after having been seen with
him in his car a few hours earlier. (>People v. Guerrero, supra, 16 Cal.3d at pp. 722-723.)
When she was found, the victim “was fully clothed; while her blouse was
above her brassiere, that garment was in place.
There was no evidence of sexual molestation; an investigation revealed
no trace of sperm or vaginal trauma.” (>Ibid.)
There was conflicting testimony at defendant’s trial as to whether “the
victim could have died as a result of jumping or falling from the car” or
whether “only blows to the head by a blunt instrument could have caused [her]
death.” (Id. at p. 723.) The trial
court decided that evidence that the defendant had raped another girl “six
weeks before the alleged murder, could be introduced on the issues of identity
and intent.” (Id. at p. 722.)

On
review, the Supreme Court held that the evidence of the uncharged rape should
not have been admitted to show (among other things) that the defendant killed
the victim in the course of an attempted rape because in the murder case “there
[wa]s no evidence whatsoever of sexual intercourse or attempted sexual
intercourse which the [earlier] rape might explain.” (People
v. Guerrero, supra, 16 Cal.3d> at p. 727.) Absent other evidence that the victim was
killed in the course of an attempted rape, the court explained, “the argument
of the People” for admission of the other crimes evidence was “circular.” (Id.
at p. 728.) Under the People’s theory,
“(1) sexual activity must have taken place in the [latest] offense because
[the] defendant’s rape of [the earlier victim] demonstrate[d] his aggressive
sexual tendencies; (2) therefore, evidence of the [earlier] rape may be
introduced to show the intent with which [the] defendant tried to engage in sex
with [the current victim].” (>Ibid.)
The court explained that this reasoning was faulty because “[t]he first
premise, of course, seeks to prove [the] defendant’s conduct in this case by
means of evidence of his criminal disposition.
Such proof is expressly prohibited by Evidence Code section 1101,
subdivision (a).” (Guerrero, at p. 728.)

Here,
defendant contends the evidence of the uncharged sex offenses against his wife
was admitted based on “the identical circularity that Guerrero prohibits.” There
are two important distinctions between this case and Guerrero, however, and those distinctions make all the
difference. First, the flaw the Supreme
Court found in the People’s reasoning in Guerrero
was based on the fact that, at that time, the evidence of the prior rape was
inadmissible under Evidence Code section 1101, subdivision (a) to prove the
defendant’s propensity to commit such offenses.
With the enactment of section 1108, that prohibition against the
use of character evidence was lifted. As
our Supreme Court has explained, section 1108 was specifically “intended . . .
to relax the evidentiary restraints [Evidence Code] section 1101, subdivision
(a), imposed.” (People v. Falsetta (1999) 21 Cal.4th 903, 911.) “[S]ection 1108 permits ‘the admission, in a
sex offense case, of the defendant’s other sex crimes for the purpose of
showing a propensity to commit such crimes.’ ”
(People v. >Medina (2003) 114 Cal.App.4th 897, 902.)

Thus,
it was permissible here -- as it was not in Guerrero
-- to offer the evidence that defendant had on several occasions choked his
wife when she refused to have sex with him to show that defendant had a
propensity to commit that sort of assault on women. Granted, if there was no other evidence
suggestive of a sexual element to the current crime, the other crimes evidence
could not properly have been admitted to establish that sexual element. (See People
v. James (2000) 81 Cal.App.4th 1343, 1354 [“Other crimes evidence can
support an inference of propensity, but propensity alone cannot support a
conclusive inference that the defendant committed the charged offense”].) But that observation only brings us to the
second significant distinction between this case and Guerrero: here, unlike in Guerrero,
there was evidence other than the
other crimes evidence that the current crime involved an attempted rape. While the victim in Guerrero was found with only her blouse out of place, and
presumably was found in a place where she could have simply jumped or fallen
from the defendant’s car, the victim here had no clothes on below her waist;
her top was pushed up, exposing her breasts; and she was found in a place where
the perpetrator covered her body with tree branches to conceal her. Taken together, this evidence supports the
reasonable conclusion that some sort of sexual activity, or attempted sexual
activity, occurred in conjunction with the victim’s death. There was no such evidence in >Guerrero.

Based
on the evidence that the victim may have been strangled in the course of, or
for resisting, an attempted sexual assault, and on the permissible use of the
prior crimes evidence under section 1108 to show defendant’s propensity to
engage in such assaults, there was no error in the trial court’s admission of
the other crimes evidence.href="#_ftn2"
name="_ftnref2" title="">[2]

II

Motive Instruction

The
trial court instructed the jury on motive as follows: “The People are not required to prove that
the defendant had a motive to commit the crime charged. In reaching your verdict you may, however,
consider whether the defendant had a motive.
Having a motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a
factor tending to show the defendant is not guilty.”

Defendant
contends the trial court erred in giving this instruction because, in
defendant’s view, the attempted rape of the victim was both the asserted motive
for the murder and an element of the charge of felony murder. Under these circumstances, defendant argues,
instructing the jury that the prosecution did not have to prove motive was
“erroneous, confusing, and substantially likely to be understood and applied in
an unconstitutional manner.” We
disagree.

On
the charge of felony murder, the trial court instructed the jury that “[t]o
prove that the defendant is guilty of first degree murder under this theory,
the People must prove that, one, the defendant attempted to commit rape; two,
the defendant intended to commit rape; and, three, while attempting to commit
rape the defendant caused the death of another person.” Under this instruction, the People had to
prove that defendant intentionally attempted to rape the victim and killed her
while he did so. According to
defendant, however, the prosecutor
argued to the jury that the attempted rape
was “a motive in this case,” and thus the jury could have been misled by the
jury instruction on motive to believe that the People did not have to prove the attempted rape.

We
find no reasonable possibility that the jury understood the instructions, and
the prosecutor’s argument, in this manner.
In arguing motive to the jury in connection with the charge of first
degree murder on the theory that the killing was willful, deliberate and
premeditated, the prosecutor argued as follows:
“We’re not required to show a motive, but, certainly, if there is a
motive, you can consider that. And if
you think about this, if a woman is resisting being sexually assaulted, wanting
to get away, screaming for help and the man is wanting to have sex with that
woman and she’s resisting, as occurred with [defendant’s wife], the defendant
would be upset and mad about that, as he was with [his wife]. And he puts his hands on her throat
attempting to silence her, attempt to get what he wants, and he continues to
squeeze, knowing it could kill her. That
is a motive in this case.”

Our
Supreme Court has explained that “motive is the ‘reason a person chooses to
commit a crime.’ ” (People v. Cash (2002) 28 Cal.4th 703, 738.) Thus, the prosecutor’s argument suggested
that defendant might have intentionally killed the victim because he was trying
to silence or subdue her or because he was angry that she was resisting his
sexual advances. From the motive
instruction, the jury would have understood that to prove an intentional
killing, the People did not have to prove that one or more of these reasons, or
any other, was the reason defendant killed the victim. We do not believe, however, that the jury
also might have intuited from the motive instruction that for purposes of the
felony murder charge the People did not have to prove that defendant
intentionally attempted to rape the victim.
The felony murder instruction was clear on this point, and we see no
reasonable possibility that the jury would have somehow been misled on this
point by the unrelated motive instruction and the prosecutor’s arguments about
defendant’s possible motives for an intentional killing. Accordingly, we reject defendant’s claim of href="http://www.mcmillanlaw.com/">instructional error.

DISPOSITION

The
judgment is affirmed.









ROBIE , J.







We
concur:







NICHOLSON , Acting P.
J.







BUTZ , J.