Supreme Court of California Justia
Docket No. S093235
People v. Johnson

Filed 2/26/15



Plaintiff and Respondent,




Lake County

Defendant and Appellant.

Super. Ct. No. CR4797

A jury convicted defendant Jerrold Elwin Johnson of the first degree

murder of Ellen Salling with the special circumstances of robbery murder,

burglary murder, and carjacking murder, as well as first degree burglary, first

degree robbery, and carjacking. (Pen. Code, §§ 187, 190.2, subd. (a)(17)(A), (G),

(L), 211, 215, subd. (a), 459.)1 The jury also found that defendant personally used

a deadly and dangerous weapon, and the victim was 65 years old or older.

(§ 667.9, subd. (a), former § 12022, subd. (b)(1).) Defendant admitted that he had

suffered one prior serious or violent felony conviction and had served one prior

prison term. After a penalty trial, the jury returned a verdict of death. The court

denied the automatic motion to modify the verdict (§ 190.4) and imposed that

sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


All further statutory references are to the Penal Code unless otherwise



A. Guilt Phase

1. Overview

On December 18, 1998, the police tried to stop the van defendant was

driving to arrest him for violating parole. Rather than stop, he led them on a high-

speed chase, crashed his van, and escaped on foot. The next morning, he entered

76-year-old Ellen Salling‘s home, beat her to death, and stole her purse, jewelry,

and car. He went to a casino with his girlfriend, used the victim‘s credit card to

make purchases, and tried to sell the jewelry. Later, while driving Salling‘s car, he

again led police on a high-speed chase, which ended when he crashed this car and

fled on foot. But this time, he was eventually captured.

At trial, defendant did not dispute that he killed Salling and stole her

property, but he did dispute that he formed the intent to steal before he killed her.

2. The Evidence

In December 1998, defendant was living with Starlene Parenteau in

Clearlake Oaks in Lake County.2 They shared the master bedroom. Midday on

December 18, defendant was working on a car at a friend‘s house in Clearlake

Oaks. He was wearing steel-toed boots, a corduroy shirt, and a plaid jacket. After

noon, defendant left in his van to retrieve a tool and did not return.

Later that afternoon, Lake County Deputy Sheriff Mike Morshed was on

patrol in a marked patrol car in the Clearlake Oaks area. He had been informed

that defendant had violated parole. He observed defendant driving a van and tried

to stop him to arrest him for violating parole. When he did not stop, Deputy

Morshed turned on his lights and siren, and a high-speed chase ensued. The chase


All dates are to the year 1998 unless otherwise indicated.


ended when defendant‘s van hit a tree and came to a stop in thick vegetation off a

dirt road. Defendant abandoned the van and fled on foot. He escaped capture

despite a search involving at least 20 law enforcement personnel and a helicopter.

Ellen Salling, 76 years old, lived alone in the Kono Tayee area of Lucerne,

about five miles from where defendant abandoned his van. Defendant was

familiar with the area, as he had had a paper route there the year before, and

Salling was one of his customers. Salling normally kept her car, a red 1999

Mercury Sable, in her garage, accessible from the main house through a

breezeway. Salling‘s friend and neighbor, William Ellis, and her daughter

testified that she normally kept her purse on a counter in the kitchen and her car

keys either in the purse, on the counter, or in a dish on the counter.

Ellis visited Salling the evening of December 18; they planned to go to a

party together the next day. Around 7:00 a.m. the morning of December 19,

another neighbor saw Salling walking near her home. Between 8:00 and 8:30

a.m., that same morning, a different neighbor observed a man in a plaid jacket

drive Salling‘s car away from the area. A short time later, Ellis went to Salling‘s

home. When it appeared she was not home and her car was not in the garage, he

assumed she had gone shopping and left.

Ellis returned around 5:20 p.m. that afternoon and observed that Salling‘s

car was still missing. Concerned, he entered her house through the garage, using

his key. There was cookie dough and a mixer on the kitchen counter, indicating

Salling had been baking cookies for Christmas. Then he discovered Salling‘s

body, face down and surrounded by blood, near the front entryway. Her glasses

were on the floor nearby. He called 911.

The evidence showed that Salling had been beaten to death. Her assailant

had used a tree limb that came from outside the house and was found broken into

pieces near the body, the leg of an ottoman, and boots. The limb ―had some wood


decay fungi in it,‖ which might explain why it had broken. Although the tree limb

had no blood on it, a piece of raw wood found near the body did. Bloody

bootprints were found on the victim‘s back. Blood was found throughout the

house, including blood smears on a kitchen counter. Various drawers had been

opened and ransacked. Salling‘s car, her purse, and several pieces of her jewelry,

worth over $13,000, were missing. There was no evidence of a forced entry.

Starlene Parenteau testified that early in the morning of December 19, law

enforcement agents came to her home looking for defendant. He was not there.

Shortly after midnight on December 20, she came home and found a bracelet, a

brooch, and a gold necklace on the kitchen table. Some of these items were later

identified as having belonged to Salling.

Around 3:00 or 3:30 a.m. that same morning, defendant called Parenteau.

This was his first contact with her since he left on December 18 to work on the

car. He asked her to meet him at a creek behind her house because, he said, his

parole officer was looking for him. He did not want to go home out of concern

that he might be found. Parenteau met him as he asked. He was wearing new

clothes and shoes and was driving Salling‘s red Mercury. He told her he had

bought the clothes at a Walmart store and gave her the receipt for the purchases.

He told her he had borrowed the car from some friends and was ―hiding from the


Defendant and Parenteau went to Cobb Mountain, then spent the night of

December 20 to 21 at a motel in Middletown. The man who checked them in

testified the car they were driving resembled a photograph of Salling‘s car.

Defendant told Parenteau he had left behind the jewelry she had found on the

table. He gave her three rings which were later identified as having belonged to

Salling. He told her he had gotten the jewelry from the mother of someone who

owed him $300.


Defendant and Parenteau went to a casino, then to other places, where

defendant attempted, unsuccessfully, to sell the jewelry for cash and

methamphetamine. At some point, they went to the home of Shiree Hardman and

Jeff Biddle, where defendant tried to sell them some rings, and they smoked some

methamphetamine. At trial, Hardman said the car they were driving resembled a

photograph of Salling‘s car.

Defendant gave Biddle a piece of paper that Hardman later gave to the

police. On the paper was written Salling‘s name and personal information and the

notation, ―I approve 250.00.‖ Parenteau testified that defendant wrote the note. A

questioned documents examiner who compared the note to defendant‘s known

handwriting testified that defendant ―probably‖ wrote it. Defendant or Parenteau

told Hardman that they had gone to a casino and would go again that night.

Defendant offered to pay Hardman and Biddle $50 to verify a credit card if

someone called asking for verification. Hardman declined to do so. Either

Hardman or Parenteau also gave defendant a yellow piece of paper to write on.

During this time, defendant purchased some gasoline using Salling‘s credit

card. Eventually, defendant and Parenteau drove back to Clearlake Oaks, where

defendant dropped her off near their home.

In the early morning hours of December 21, Lake County Deputy Sheriff

Robert Zehrung, while on patrol, observed Salling‘s red Mercury in the Clearlake

Oaks area. The driver matched the description of the suspect in Salling‘s killing,

so Deputy Zehrung tried to stop the car. Another high-speed chase ensued; the

chase reached speeds as high as 120 miles per hour and involved other law

enforcement vehicles. Around 3:50 a.m., Deputy Zehrung observed the Mercury

―veer off the right shoulder of the road, strike an embankment, and come to a

stop.‖ He called for backup assistance, then determined that the suspect had left

the scene. A massive search followed. Around 8:50 a.m. that morning, defendant,


suffering from hypothermia, was captured. Deputy Zehrung identified him as the

driver he had pursued.

When defendant was captured, officers found a folded yellow piece of

paper resembling the paper he had obtained at Biddle and Hardman‘s residence.

On it was written a date, ―12-21-98,‖ and this message: ―I Ellen Salling give Jerry

Johnson my nephew permission to use my visa for $250.00 if any questions you

can call me at 995 1608. I am bedridden and unable to do it myself.‖ Then

followed the name Ellen Salling and Salling‘s driver‘s license number. Hardman

testified that the telephone number in the message was hers and Biddle‘s. The

documents examiner testified that the handwriting was probably defendant‘s and

was not Parenteau‘s, Hardman‘s, or Biddle‘s.

The Mercury contained bloodstains and defendant‘s fingerprints. A local

resident later found Salling‘s purse and parts of the ottoman that had been near her

body on a hillside overlooking Clear Lake. A group of high school students

assisting in the search found other parts of the ottoman nearby.

During a search of defendant‘s home pursuant to a search warrant, the

police found some of Salling‘s jewelry and one of her credit cards in the master

bedroom. They also seized a bloody corduroy shirt and bloody pants from the

same bedroom. Parenteau testified that defendant was wearing the shirt when he

left her house on December 18. A criminalist testified that the weave pattern of

the shirt‘s fabric matched a pattern left by some blood found on a wall near

Salling‘s body. Deoxyribonucleic acid (DNA) testing and other evidence showed

that Salling was almost certainly the source of the blood on the shirt and pants, on

the piece of raw wood found near her body, in the Mercury, and on parts of the


Defendant cross-examined prosecution witnesses, but he did not present

any evidence of his own.


B. Penalty Phase

1. Prosecution Evidence

Defendant was convicted of burglary in Arizona in 1981 and of the

voluntary manslaughter of Jennifer Von Seggern in 1993 in Sonoma County.

The prosecution presented evidence that in 1988, defendant assaulted and

threatened to kill Pamela Braden, his then-girlfriend, causing multiple injuries.

The prosecution also presented evidence of the facts underlying defendant‘s

manslaughter conviction. In 1992, defendant and Von Seggern lived together in a

trailer park, and then Von Seggern moved into an apartment. She disappeared in

October 1992. Her decomposed body, wrapped in a sleeping bag and bound, was

found in an isolated area in Sonoma County on January 12, 1993. The pathologist

who performed the autopsy could not determine the cause of death due to the

decomposed state of the body. Among the evidence connecting defendant to the

crime were his incriminating statements and evidence that after the victim

disappeared, he sold her car (which contained bloodstains) and forged her name on

documents to do so.

In early December 1998, Margaret Johnson, defendant‘s step-grandmother,

who had a heart problem, died suddenly, due to ischemic heart disease. The

prosecution presented evidence that after Johnson died, defendant set fire to her

mobile home, badly burning the body. After Johnson‘s death, some of her

property was found in defendant‘s possession; he also used one of her credit cards.

He later admitted to the police that he had burglarized Johnson‘s home but

expressed shock that the police wanted him for her murder.

Henni Ray, Salling‘s daughter, testified about Salling and the impact her

death had on her family. Von Seggern‘s father testified about Von Seggern and

the impact of her death.


2. Defense Evidence

Defendant‘s stepfather, Bryant Johnson, testified about defendant and his

good qualities. Robert Fogelstrom, a Lake County correctional officer, testified

that defendant had been a ―model inmate‖ in jail. Mildred Mallory, who held

church services in the Lake County Jail, testified that defendant had attended her

services regularly and was always pleasant and never threatening. She said, ―He

accepted Christ as his savior. And I know when you become a Christian, you have

a new nature, I know that.‖

Defendant testified. His grandmother, mother, and stepfather had raised

him. He said he was addicted to methamphetamine, which he began using in high


Regarding his Arizona burglary conviction, he said that he and some

friends had shoplifted beer and other items. He admitted grabbing Pamela Braden

but denied ―punch[ing] her like she said I did.‖ Regarding Von Seggern‘s death,

he testified that she was ―slamming dope,‖ they ―got into a hassle,‖ and he

knocked her down. ―She hit a table, and she stopped breathing. . . . I panicked. I

proceeded to . . . put her in a sleeping bag. I tied her up, put her in a car, and I

took her out, and I dumped her. It was callous. I wish I could take it back.‖ He

admitted burglarizing Margaret Johnson‘s home, taking her property, and using

her credit card, but he denied seeing her when he was there and denied setting fire

to her home. At the time, he ―had been up straight solid‖ on methamphetamine,

meaning he had not slept.

Defendant also testified about the crime of this case. He admitted killing

Salling. He said he had been using methamphetamine heavily and continuously

for several days before he did so and had gotten little sleep, which made him

―really edgy‖ and caused him to ―blow up at the slightest little thing.‖ He knocked

on Salling‘s door, holding a tree limb that he was using as a walking stick. He


only intended to use her telephone. He asked to use her telephone and she invited

him in. Inside, because he looked like a ―mess,‖ she told him to ―get out of my

house.‖ He started ―violently shaking, trembling, uncontrollable,‖ and he

―attacked her.‖ He could not remember the details of the killing. After killing

Salling, he ―panicked,‖ went through her drawers, and stole her property. He

decided to steal her property only after he killed her. He still had nightmares

about what he did to her, and he goes to church ―quite often‖ to pray for


Dr. Raymond Deutsch testified about methamphetamine and its effects on

those addicted to it. In his opinion, defendant was addicted to the drug.

Methamphetamine use distorts perception and can cause delusions and ―rage

reactions.‖ In his opinion, defendant killed Salling as a result of a rage reaction

and not due to a predetermined plan. Defendant‘s later actions in stealing her

property were, in his opinion, not ―part of the rage reaction at all; I think that

happened after the rage reaction was completed.‖


A. Failure of the Trial Judge to Disqualify Himself

Defendant contends that the trial judge, the Honorable Robert L. Crone,

should have disqualified himself because of his personal and professional

relationship with the prosecutor, and Judge Crone‘s failure to do so violated

various of his constitutional rights.

1. Procedural Background

The prosecutor, Stephen Hedstrom, was the elected District Attorney of

Lake County, but had also been elected to the Lake County Superior Court bench.

He prosecuted this case as an acting deputy district attorney before he actually

took the bench. On June 27, 2000, Judge Crone was assigned to this case for all


purposes. At the outset of the court hearing on that date, in defendant‘s presence,

and before he did anything else, Judge Crone placed on the record information

pursuant, he said, to the ―provisions in the Code of Civil Procedure, 170, et seq.

having to with disqualification of judges for various causes and reasons.‖ He

disclosed in detail his close professional relationship and personal friendship with


Judge Crone disclosed on the record that he served as the elected District

Attorney of Lake County from 1977 to 1984. During that time, Hedstrom was a

deputy district attorney in the office, and he essentially ran the office for a period

when Judge Crone was trying a case in another county. Eventually, on Judge

Crone‘s advice and with his nonmonetary and ―non-public‖ assistance, Hedstrom

ran for, and was elected to, an open judicial position. After the election, Judge

Crone and Hedstrom had various conversations regarding Hedstrom‘s upcoming

judicial position.

Judge Crone also disclosed his close friendship with Hedstrom. ―[W]e

have basically been friends over a number of years. And there‘s never been a

time, I have to say, when, after I went on the bench — obviously the relationship

you have with people changes as to what you can do, what you can‘t do, what you

can talk about, what you can‘t talk about. And there was never anything

inappropriate about that whenever we met at social functions or whatever:

Business was not the topic of conversation.‖ After Hedstrom‘s election as a judge,

―we got on maybe an even closer basis as a result of that, and — but there again,

there‘s always a separation and a distance from what I do as a judge.‖ Hedstrom

had recently been a pallbearer at Judge Crone‘s mother‘s funeral.

Judge Crone concluded his comments: ―So anyway, I just wanted everyone

to know what the relationship had been. In my opinion it doesn‘t affect anything

that I would do, but on the other hand, I feel compelled, as I understand the


responsibilities of a judge in this position, to make this disclosure. So with that, if

there‘s — if this is new information, or information you haven‘t discussed with

your client, whatever, I‘d be happy to give you time, if you want a reasonable —.‖

Defense counsel interrupted to state: ―Actually, just to let you know: Mr.

Hedstrom and I had a conversation before your Honor took the bench about that

very thing, and I talked to my client about it. As I explained to my client, I‘ve

practiced law in Fresno for 24 years; I‘ve gone to law school with a couple of the

judges; I‘ve got a close personal relationship with a couple of the other judges, but

I‘ve never received a ruling from any of them that I didn‘t deserve, either for or

against my position. And Mr. Hedstrom expects that the rulings from the bench

will be fair and impartial for both of us. My client agrees; and so we are ready to

go, your Honor.‖ Defendant personally said, ―Yes.‖ Judge Crone said, ―Okay,‖

defense counsel thanked him for his ―candor,‖ and the hearing moved on to other


Judge Crone presided over the case from that point on.

2. Analysis

Defendant now contends that rather than merely disclose this information,

Judge Crone should instead have disqualified himself. However, after discussing

the matter with defendant, and with his personal agreement, defense counsel

agreed that Judge Crone could preside over the case. Under the circumstances,

defendant may not raise this claim for the first time on appeal.

―If a judge refuses or fails to disqualify herself, a party may seek the

judge‘s disqualification. The party must do so, however, ‗at the earliest

practicable opportunity after discovery of the facts constituting the ground for

disqualification.‘ (Code Civ. Proc., § 170.3, subd. (c)(1).)‖ (People v. Scott

(1997) 15 Cal.4th 1188, 1207.) ―Defendant may not go to trial before a judge and


gamble on a favorable result, and then assert for the first time on appeal that the

judge was biased.‖ (People v. Rodriguez (2014) 58 Cal.4th 587, 626.)3

We have allowed a defendant who objected to a judge‘s participation in the

proceedings and merely failed to pursue the statutory appellate remedy under

Code of Civil Procedure section 170.3, to raise on appeal a narrow due process

claim. (People v. Freeman (2010) 47 Cal.4th 993, 999-1000; People v. Chatman

(2006) 38 Cal.4th 344, 362-363; see Caperton v. A.T. Massey Coal Co. (2009) 556

U.S. 868 [establishing the standard for a due process claim that a judge was biased

after the party making the claim had moved to disqualify the judge].) But a

defendant who never objected to the judge may not do so. (People v. Scott, supra,

15 Cal.4th at p. 1207.) Defendant may not ―‗―play fast and loose with the

administration of justice‖‘‖ by agreeing to have Judge Crone preside over the case

and claiming later that he was biased. (Ibid., quoting Caminetti v. Pac. Mutual L.

Ins. Co. (1943) 22 Cal.2d 386, 392.) Accordingly, defendant may not argue on

appeal that Judge Crone was biased when, at the outset and after full disclosure, he

agreed the judge was not biased.

Defendant suggests he was not properly admonished about his right to an

unbiased judge. But he was present during the hearing when Judge Crone made

the disclosures and had previously discussed the situation with his attorney, after


Code of Civil Procedure section 170.3, subdivision (b)(1), provides: ―A

judge who determines himself or herself to be disqualified after disclosing the
basis for his or her disqualification on the record may ask the parties and their
attorneys whether they wish to waive the disqualification, except where the basis
for disqualification is as provided in paragraph (2). A waiver of disqualification
shall recite the basis for the disqualification, and is effective only when signed by
all parties and their attorneys and filed in the record.‖ This provision does not
apply here because Judge Crone neither determined himself to be disqualified nor
asked the parties whether they wished to waive any disqualification.


which he personally expressed agreement with his attorney‘s belief that Judge

Crone would be fair. In any event, because he was represented by counsel,

defendant‘s personal waiver was not required. ―‗―When the accused exercises his

constitutional right to representation by professional counsel, it is counsel, not

defendant, who is in charge of the case. By choosing professional representation,

the accused surrenders all but a handful of ‗fundamental‘ personal rights to

counsel’s complete control of defense strategies and tactics,‖‘‖ including deciding

whether to challenge a judge. (People v. Scott, supra, 15 Cal.4th at p. 1207,

quoting In re Horton (1991) 54 Cal.3d 82, 95 [counsel may implicitly stipulate to

trial before a court commissioner].)

Defendant contends his attorney provided ineffective assistance by not

objecting to Judge Crone. ―To establish ineffective assistance of counsel, a

defendant must show that (1) counsel‘s representation fell below an objective

standard of reasonableness under prevailing professional norms, and (2) counsel‘s

deficient performance was prejudicial, i.e., there is a reasonable probability that,

but for counsel‘s failings, the result would have been more favorable to the

defendant.‖ (People v. Scott, supra, 15 Cal.4th at p. 1211.) Defendant has not

made this showing.

In reviewing a claim of ineffective assistance of counsel, we give great

deference to counsel‘s tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229,

1254.) Deciding whether to object to a judge is inherently tactical. ―‗There are,

no doubt, an infinite number of reasons why counsel would not avail themselves

of the opportunity to disqualify a judge. The failure to do so is within the

competence of counsel, and does not show ineffective counsel.‘‖ (People v. Scott,

supra, 15 Cal.4th at p. 1213, quoting People v. Beaumaster (1971) 17 Cal.App.3d

996, 1009 .) Defense counsel was satisfied that Judge Crone would be fair. We

have no basis to second-guess this tactical decision. As counsel noted when he


accepted Judge Crone, friendship between a judge and an attorney who appears

before the judge occurs routinely. (See People v. Carter (2005) 36 Cal.4th 1215,

1243.) This is especially true in small counties. This case is unusual in that the

prosecutor was soon to become a judicial colleague of the judge. But Judge Crone

made clear, and defendant agreed, that the relationship between him and the

prosecutor would not affect his conduct of the case. Deciding not to challenge

Judge Crone came within the range of tactical decisions competent counsel may


Accordingly, we need not decide whether Judge Crone should have

disqualified himself had defendant so requested.

Defendant also contends that, in fact, Judge Crone‘s relationship with the

prosecutor affected some of his later rulings. He never objected on this basis.

Accordingly, he has also ―forfeited his additional claims that the trial court‘s

alleged bias affected his subsequent trial rulings.‖ (People v. Guerra (2006) 37

Cal.4th 1067, 1111.) Moreover, nothing in the record supports the contention.

Defendant asserts that Judge Crone denied a change of venue to avoid

delaying the trial so that Hedstrom might become a judge all the sooner. The

record reflects that in hearings held in front of other judges before Judge Crone

was assigned the case, the prosecutor was concerned about potential delays.

Defendant claims that the record of one such hearing before another judge, on

May 3, 1999, shows the ―eagerness of prosecutor Hedstrom to proceed to trial as

he had been elected judge and could not assume judicial office until conclusion of

trial.‖ But the record does not support the claim. The hearing that defendant cites

occurred before the preliminary examination was held. The public defender made

a ―special appearance‖ on defendant‘s behalf solely to ask for a delay so another

attorney could be appointed to represent defendant, a request that would cause

defendant to be unrepresented for the time being. Hedstrom expressed concern


about defendant‘s being unrepresented because of time considerations under

section 859b.4 He said he was ―highly concerned that, given the requirement of

the preliminary hearing within 10 court days, that we are running into problems.‖

He noted that the ―stakes are extremely high in this case, and it does not seem

unreasonable for the People to request that there be some attorney that actually

appears in court on this case in a timely fashion.‖ The court (not Judge Crone)

ordered the attorney who was to be appointed to appear in court the next day.

Given section 859b‘s tight time limits within which to hold the preliminary

examination, with dismissal a potential sanction if those limits were not met, the

prosecutor‘s wanting to protect the case in this way was neither inappropriate nor

suspicious. The same is true of later occasions defendant cites that show the

prosecutor wanted to bring the case to trial within a reasonable time. Trial began

more than a year and a half after defendant‘s arrest, which does not suggest undue


But even if we were to assume, with no support in the record, that the

prosecutor wanted to try the case promptly for personal reasons, nothing suggests

Judge Crone did anything to aid him in this regard. As discussed post, defendant

moved to change venue from Lake County. On appeal, he asserts that ―the record

shows that even before the change of venue motion had been fully heard or

argued, Judge Crone had already decided the issue and fully intended to deny

change of venue to benefit the prosecutor.‖ Again, the record does not support the


Section 859b gives the defendant (and people) the right to a preliminary

examination ―within 10 court days of the date the defendant is arraigned or pleads,
whichever occurs later,‖ unless the right is waived or good cause for a continuance
is found. If, as was the case here, the defendant is in custody, the section further
requires the magistrate to dismiss the complaint if the preliminary examination is
not timely held unless the defendant waives the time limits.


assertion. Defendant claims that a hearing held after defendant had filed the

change of venue motion, but before it had been heard, showed that ―Judge Crone

was already discussing with counsel a trial schedule in Lake County, implying that

he already had decided the issue before it was heard or submitted and intended to

deny a change of venue.‖ But the hearing defendant cites was held in front of a

different judge before Judge Crone was assigned the case. At that hearing, the

parties and court (not Judge Crone) discussed scheduling, including when to hold

the hearing on the change of venue motion and when to schedule trial in the event

a change of venue were denied. The hearing does not suggest anyone had

prejudged the motion, much less Judge Crone, who had not yet been assigned the


As defendant notes, the record also reflects that during the hearing on the

motion to change venue, and before ruling on it, Judge Crone and the parties

sometimes discussed scheduling and trial procedures. But all such discussion was

predicated on trial actually being held in Lake County. Judge Crone specifically

stated that the discussion of scheduling was ―without prejudice‖ to the motion to

change venue, and he noted that ―if venue is transferred, it may not work.‖

Discussing scheduling and other trial matters in the event venue was not changed

did not show prejudgment.

The record shows that Judge Crone was fair and impartial in his rulings and

conduct of the case.

B. Denial of Change of Venue Motion

On May, 30, 2000, defendant moved to change venue from Lake County,

citing extensive pretrial publicity about the case. After he was assigned to the

case, Judge Crone presided over a lengthy evidentiary hearing at which both sides

presented the testimony of their respective experts and the results of public


opinion polls each expert had conducted. After the hearing, the court denied the

motion in a detailed oral ruling. It stated that the ―denial is without prejudice to

renew the motion during the jury selection, should actual experience in trying to

select a jury so justify.‖ Defendant neither renewed the motion nor exhausted his

peremptory challenges.

Defendant contends the court prejudicially erred in denying the motion in

violation of various constitutional rights. ―Because he did not renew his motion

after voir dire, the claim is forfeited. (People v. Hart (1999) 20 Cal.4th 546,

598.)‖ (People v. Hensley (2014) 59 Cal.4th 788, 796.) Defendant asserts that the

―trial court never gave any indication that [his] change of venue motion would

again be addressed or reconsidered by the court during or following jury

selection.‖ But the record is to the contrary. As noted, the trial court expressly

stated that the denial was without prejudice to renewing the motion during jury

selection. Based on his argument, discussed ante, that Judge Crone had prejudged

the change of venue motion, defendant also argues that any renewal of the motion

would have been futile. But, as we also discussed, the record does not support any

claim that the judge had prejudged the motion. Nothing in the record suggests the

court would not have fairly considered any renewed motion to change venue

during jury selection. Because he chose not to renew the motion, defendant has

forfeited the claim.

Moreover, the claim lacks merit. To prevail on appeal, ―a defendant

challenging the court‘s denial of a change of venue must show both error and

prejudice, that is, that it was not reasonably likely the defendant could receive a

fair trial at the time of the motion, and that it is reasonably likely he did not in fact

receive a fair trial.‖ (People v. Rountree (2013) 56 Cal.4th 823, 837.) To decide

whether the trial court erred in denying a change of venue, we consider ―several

factors, including the nature and gravity of the offense, the nature and extent of the


media coverage, the size of the community, the defendant‘s status within the

community, and the victim‘s prominence.‖ (People v. Avila (2014) 59 Cal.4th

496, 507.) In this case, we need not decide whether the court erred in denying a

change of venue because defendant cannot show prejudice. This is not ―an

extraordinary case in which the publicity was ‗so pervasive and inflammatory‘ that

prejudice is presumed and the jurors‘ assurances of impartiality should not be

believed.‖ (People v. Hensley, supra, 59 Cal.4th at p. 796.)

―Defendant has not established that it is ‗―reasonably likely that a fair trial

was not in fact had.‖‘ (People v. Proctor (1992) 4 Cal.4th 499, 523, italics

omitted; see Beck v. Washington (1962) 369 U.S. 541, 556 [no ‗constitutional

infirmity‘ in denying a change of venue motion ‗if petitioner actually received a

trial by an impartial jury‘].)‖ (People v. Hensley, supra, 59 Cal.4th at p. 796.)

Defendant argues that four of the actual jurors and the three alternates ―had been

exposed to pretrial publicity, were aware of the facts or circumstances of the

charged murder, and many had personal acquaintance with the trial judge, parties

or witnesses, suggesting emotional bias and prejudgment.‖ None of the alternate

jurors participated in either the guilt or penalty verdict, so any knowledge of the

case they might have had could not have prejudiced defendant. (See People v.

Edwards (2013) 57 Cal.4th 658, 746.) In any event, all of these jurors had

minimal pretrial exposure to this case. More importantly, each assured the court,

to the court‘s (and apparently defendant‘s) satisfaction, that ―they could put aside

any pretrial publicity and decide the case solely on the evidence at trial.‖

(Hensley, at p. 796.)

Specifically, Juror No. 200034886 stated on the jury questionnaire that she

had known defendant‘s girlfriend, Starlene Parenteau, and that she had read ―a

short newspaper article in the Record Bee a few weeks before being called as a

juror. Sketchy details — do not remember much about it.‖ During voir dire, she


said that Parenteau‘s son had been one of her students, and she did not approve of

the way Parenteau had ―dealt with her son.‖ But she assured the court this

disapproval would not affect her ability to judge her credibility. All that she could

remember about the case was ―something about Kono Tayee‖ and ―[s]omething

involving a car chase.‖ She also said she ―possibly‖ knew the Johnson family.

She did not know ―which Johnson family it is,‖ and ―not being able to talk to

anybody about it I couldn‘t clear it up.‖ Specifically, she said when she was a

child she had known of a ―Brad Johnson that owned a hardware store.‖ The court

said it did not know if he were any relation and asked if it would make any

difference. She responded, ―No, just a childhood memory.‖ She said she had

formed no opinion about the case and would put aside anything she had heard

about it and decide it based solely on the evidence presented at trial.

Juror No. 200012964 stated on the questionnaire that she had heard of the

case ―only in the paper as it happened. My husband said, at that time, that he

knew the victim‘s son-in-law, as a customer.‖ During voir dire, she said that

―months ago,‖ she had read an article in the Clearlake Observer. Her husband

never mentioned the son-in-law‘s name, and she never had any contact with him.

What she remembered about the case was that a ―[w]oman was found in her Kono

Tayee home killed and her car was gone.‖ The only opinion she ever expressed

about the case was that ―it was horrible that someone was killed.‖ She assured the

court that she could set aside anything she had heard of the case and decide it

based solely on the evidence presented at trial.

Juror No. 200010689 stated on the questionnaire that she was ―acquainted‖

with a few of the prospective witnesses and had ―read the local papers when [the

crime] occurred.‖ During voir dire, she said she had met the witnesses in her work

for a veterinarian. Her acquaintance with them would not affect her ability to

judge their credibility. She had read ―maybe one or two‖ articles about the case


when it occurred, but ―it didn‘t catch my interest sufficiently to scour it.‖ All she

remembered was ―a house being broken into in the Kono Tayee area, and a lady

was killed.‖ ―It didn‘t connect my interest. But I generally read what‘s in front

of me, so — and I have no real long memories of any of it.‖ She had never

expressed any opinion about the case. She assured the court that she could set

aside anything she knew or remembered about the case and decide it based solely

on the evidence presented at trial.

Juror No. 200002006 stated on the questionnaire that he had read about the

case ―in the papers at the time of the crime.‖ During voir dire, he said he could

not remember much about the case: ―I just . . . read the article and really didn‘t

pay too much attention.‖ He remembered ―reading that there was a killing, a

murder, and that was about it. You know, I didn‘t know the person, so I didn‘t

pay much attention.‖ He did not remember ever discussing the case with anyone

and said nothing he had read would prevent him from being fair to both sides. He

assured the court he could set aside whatever he had read or remembered about the

case and decide it based solely on the evidence presented at trial.

Alternate Juror No. 200002970 stated on the questionnaire, ―I might have

seen [this case] in the local papers. I read them most of the time.‖ During voir

dire, he said he had no present recollection of actually reading or hearing about the

case. He assured the court that even if later he were to remember anything about

the case, he would decide it based solely on the evidence presented at trial.

Alternate Juror No. 200019102 stated on the questionnaire that he knew

Judge Crone, but he had heard nothing about the case. During voir dire, he said

his knowledge of Judge Crone would not affect his ability to be fair to both sides.

He assured the court that if he later remembered anything about the case, he would

put it aside and decide it based solely on the evidence presented at trial. On

questioning by defense counsel, he explained that Judge Crone‘s ―mother was a


tenant on a property that I managed, and so I would see him and his mother. And

his mother was good friends with my wife‘s mother.‖ He added that he had ―lived

there since 1978, and we‘re a small community, so you know a lot of people.‖ He

said he never ―talk[ed] shop‖ with Judge Crone, and he would not view anything

the judge did as favoring either side.

Alternate Juror No. 200014476 stated on the questionnaire that on four or

five occasions before he had been summoned as a juror he had ―provided

transportation‖ as a cab driver to one of the defense attorneys in the case. He had

heard about the case ―only that a woman was killed in Kono Tayee — no names or

specifics from a co-worker at my place of employment.‖ He added that ―no

specifics were ever discussed with [the defense attorney]. After receiving my

summons there has been no association.‖ During voir dire, he said he knew Jeff

Biddle because ―he‘s my cousin‘s son. I probably seen him five times in my

whole life.‖ His relationship to Biddle would not affect him or his ability to judge

his credibility should he testify. (Biddle never actually testified, although he

played a minor role in these events. (See ante, pp. 5-6.)) The juror‘s acquaintance

with the defense attorney would not ―play any part.‖ His only knowledge of the

case was what he had heard from a coworker. Someone told him that the victim

was the grandmother of someone he knew of at work. That was all he remembered

of the case. He assured the court that he would put aside anything he had heard or

remembered about the case and decide it based solely on the evidence presented at


Shortly after the evidence portion of trial began, this same alternate juror

sent the court a note stating that he knew Jeff Biddle and Shiree Hardman. The

note added, ―Can assure the court this will have no effect on me or any decision I

will make should I become a member of the jury as opposed to an alternate. Can

assure the court I have had no conversations with either person concerning any


matter involved with any subject in this case.‖ The note also stated he knew ―a

Charlie Farmer‖ although he had had no contact with him for over 25 years. After

reading the note for the record, the court stated, ―If anybody wanted to inquire

further, I‘d be happy to have him come out and inquire.‖ Defense counsel

responded, ―It‘s not necessary.‖

Nothing in the juror questionnaires or voir dire indicates that any of these

jurors had formed an opinion regarding defendant‘s guilt or were otherwise biased

against him. ―Although a preexisting opinion is not disqualifying if the juror can

set the opinion aside and decide the case solely on the evidence presented in court

[citation], these jurors did not even present that issue.‖ (People v. Avila, supra, 59

Cal.4th at p. 512.) A few of the jurors were slightly acquainted with some of the

potential witnesses or had heard of the victim or her family, but nothing suggests

this would bias them.

Defendant claims that during voir dire, the ―jurors were not asked questions

which were calculated to elicit the disclosure of the existence of actual prejudice,

the degree to which the jurors had been exposed to prejudicial publicity, and how

such exposure had affected the jurors‘ attitude towards the trial. [Citation.]

Instead, leading questions and conclusionary answers were typical of the manner

in which [the] voir dire was conducted.‖ He did not object on this basis, so the

contention is forfeited. (People v. Freeman (1994) 8 Cal.4th 450, 487.)

Moreover, the record is to the contrary. The court carefully inquired into these

matters and allowed both parties to ask any additional questions they wished. The

two examples defendant cites to support his claim do not do so.

First, defendant asserts that the ―court simply asked‖ one of the jurors,

―‗you don‘t believe you‘ve read or heard anything about this case before coming

to court; is that true?‘‖ But defendant quotes the record selectively in a manner

that distorts it. The juror in question had stated on the questionnaire that he knew


none of the participants and had heard nothing about the case. During voir dire,

the court asked the juror about the questionnaire, including this question: ―And

you answered the question that you don‘t believe you‘ve read or heard anything

about this case before coming to court; is that true?‖ (Italics added to indicate

language defendant‘s quotation omitted.) The juror responded, ―I haven‘t heard

anything about it at all.‖ He was then asked follow-up questions about

newspapers he took. He replied that he took two newspapers, and was further

asked, ―Do you feel you‘ve read anything in either of those papers that might be

connected to this case?‖ The juror replied, ―No, I haven‘t.‖ Another follow-up

question on this point elicited another negative response, then the questioning

went on to other matters. Defense counsel later questioned this juror extensively,

although not on this point. Thus, in response to specific questions, the juror

repeatedly stated he knew nothing about the case. Reasonably, the court and

parties did not ask more questions on the point.

Second, defendant asserts the court asked Juror No. 200012964 ―whether

‗she could set aside anything that you feel you‘ve read that‘s connected with this

case or heard about this case‘ even though [the] juror had previously expressed

[the] opinion to others, based on pretrial exposure to newspaper articles, that ‗it

was horrible that someone was killed.‘ ‖ The quoted question alone seems fair

and adequate, but in fact the questioning was substantially more extensive than


The court explained, and the juror specifically stated that she understood,

that ―a juror can only make a decision in a case based on the evidence that‘s

produced here in the courtroom.‖ Next, the court explained, and the juror

specifically stated that she understood, that ―anything that a person may have read

in a newspaper or have discussion with somebody outside the courtroom, that

can‘t be used as any part of a basis of any decision that the juror might make in a


case.‖ The court then asked the juror to state ―in as great [a] detail‖ as she could

what she remembered reading about the case and received the answer set forth in

the earlier discussion of that juror‘s voir dire statements. Then the court asked the

question that defendant quotes in part: ―And could you set aside anything that you

feel you‘ve read that‘s connected with this case or heard about this case and decide

this case solely on the evidence produced here in the courtroom?‖ The juror

responded that she could. The court then explored the matter further. As it

typically did throughout the voir dire, the court explained, and specifically

ascertained that the juror understood, that sometimes something occurs that might

trigger more memories about the case. The court then asked, ―And you‘d have to

assure the Court that if such a thing did happen that you‘d set aside anything that

you may have heard or read outside the courtroom and decide the case solely on

the evidence that‘s produced here in the courtroom. Could you do that?‖ The

juror responded, ―Yes.‖ The court then asked whether the juror had ―ever

express[ed] any opinions to anyone about this case,‖ eliciting the response, ―Just

that it was horrible that someone was killed.‖ Defendant questioned the juror

extensively, although he asked no questions on this point.

The questioning was fully adequate to explore the jurors‘ knowledge of the

case and any impact this knowledge would have on their ability to be fair.

Defendant never claimed otherwise at trial. ―Defendant‘s failure to exhaust his

peremptory challenges or renew his venue motion supports ‗a reasonable inference

that the defense did not believe that pretrial publicity had prejudiced the seated

jurors . . . .‘‖ (People v. Hensley, supra, 59 Cal.4th at p. 796, quoting People v.

Prince (2007) 40 Cal.4th 1179, 1216.)


C. Sufficiency of the Evidence Regarding Carjacking

Defendant contends the evidence was insufficient to support the carjacking

conviction, a first degree murder conviction predicated on the felony-murder rule

based on carjacking, and the carjacking-murder special circumstance.

―To determine whether sufficient evidence supports a jury verdict, a

reviewing court reviews the entire record in the light most favorable to the

judgment to determine whether it discloses evidence that is reasonable, credible,

and of solid value such that a reasonable jury could find the defendant guilty

beyond a reasonable doubt.‖ (People v. Rountree, supra, 56 Cal.4th at pp. 852-

853.) This standard of review applies when the evidence is largely circumstantial

and to review of special circumstance findings. (People v. Kelly (2007) 42 Cal.4th

763, 788.)

―Section 215, subdivision (a), defines carjacking as ‗the felonious taking of

a motor vehicle in the possession of another, from his or her person or immediate

presence, or from the person or immediate presence of a passenger of the motor

vehicle, against his or her will and with the intent to either permanently or

temporarily deprive the person in possession of the motor vehicle of his or her

possession, accomplished by means of force or fear.‘ ‖ (People v. Hill (2000) 23

Cal.4th 853, 858-859.) ―The Legislature recently made carjacking a separate

crime, and for a good reason. ‗[C]arjacking is a particularly serious crime that

victimizes persons in vulnerable settings and, because of the nature of the taking,

raises a serious potential for harm to the victim, the perpetrator and the public at

large.‘‖ (Id. at p. 859, quoting People v. Antoine (1996) 48 Cal.App.4th 489, 495.)

Defendant makes two distinct factual arguments regarding the carjacking

conviction. First, he argues there was insufficient evidence that he intended to

take the victim‘s car before he killed her, i.e., before he used force or fear.


Second, he argues there was insufficient evidence he took the car from the

victim‘s person or immediate presence. Both arguments lack merit.

Whether defendant intended to steal the victim‘s property before he killed

her was disputed at trial, indeed was virtually the only contested guilt issue.

Defendant does not challenge the jury‘s finding that he intended to steal some

property before he killed the victim. The jury could readily conclude defendant

intended to steal when he entered the victim‘s house with a weapon and beat her to

death. It did not have to conclude he killed the victim for no apparent reason and

only then decided to steal. When one kills and then takes substantial property

from the victim, a reasonable jury can ordinarily find the killing was for the

purpose of taking the property. (People v. Kelly, supra, 42 Cal.4th at p. 788.)

―Murders are commonly committed to obtain money or other property.‖ (Ibid.)

Rather than make the more general argument, defendant argues specifically

that the evidence was insufficient for the jury to find he intended to take the

victim‘s car before he killed her. However, a reasonable jury could have

concluded that after defendant had walked five miles from where he had crashed

his van, what he needed most was another vehicle to escape from the area, and that

he intended to steal that vehicle. Defendant claims there was no evidence he knew

this particular victim had a car. But the jury could reasonably have found that in

this residential neighborhood, with which defendant was familiar, most residents

possessed a vehicle of some kind. Additionally, it could reasonably have

concluded that defendant believed, or at least hoped, that the victim‘s residence, in

particular, contained a car. It had, after all, a garage. If defendant had a doubt, he

could easily have glanced into the garage and seen the car. The jury could

reasonably conclude that defendant would not have selected this particular home

to enter if he did not believe it had a car to satisfy his most pressing need.

Defendant did take the car and did use it to try to escape from law enforcement.


From all of this evidence, a reasonable jury could readily conclude defendant

entered the house not merely to kill but to take the victim‘s property, including,

perhaps above all, the car.

The evidence was also sufficient for the jury to conclude defendant took the

car from the victim‘s ―person or immediate presence.‖ (§ 215, subd. (a).) This

requirement for carjacking is similar to the equivalent requirement for robbery.

Due to differences in the statutory elements, the analogy between carjacking and

robbery is imperfect. (People v. Hill, supra, 23 Cal.4th at p. 860.) However, the

―Legislature modeled the carjacking statute on the robbery statute,‖ and some of

the language in the carjacking statute (§ 215) tracks that of the robbery statute

(§ 211). (People v. Lopez (2003) 31 Cal.4th 1051, 1059.) Specifically, both

section 211 and section 215 require a taking from the ―person or immediate

presence‖ of the person. (See Lopez, at p. 1059; People v. Coleman (2007) 146

Cal.App.4th 1363, 1369-1370.)

We have approved of the Massachusetts Supreme Court‘s definition that

something is in a person‘s ―immediate presence‖ if it is ―‗―so within his reach,

inspection, observation or control, that he could, if not overcome by violence or

prevented by fear, retain his possession of it.‖‘‖ (People v. Hayes (1990) 52

Cal.3d 577, 626-627, quoting Commonwealth v. Homer (1920) 235 Mass, 526,

533 [127 N.E. 517].) ―Under this definition, property may be found to be in the

victim‘s immediate presence ‗even though it is located in another room of the

house, or in another building on [the] premises.‘‖ (Hayes, at p. 627.) Or, as the

Court of Appeal recently said, ―A vehicle is within a person‘s immediate presence

for purposes of carjacking if it is sufficiently within his control so that he could

retain possession of it if not prevented by force or fear.‖ (People v. Gomez (2011)

192 Cal.App.4th 609, 623.)


Here, the victim‘s car was in her garage, only separated from the kitchen by

a breezeway. Normally, in order to accomplish a carjacking, the perpetrator must

take not only the car itself but the keys to the car. Witnesses who knew Salling

well testified that she normally kept her car keys on a kitchen counter or in her

purse or in a dish that were on the counter. Cookie dough and a mixer were on a

kitchen counter after Salling‘s death, indicating she was in the kitchen baking

cookies. Police found blood throughout the house, including blood smears on the

kitchen counter, indicating that defendant took the keys (and other property) after

he killed Salling. Thus, the jury could reasonably find that the car keys were

within the victim‘s immediate reach at the time defendant arrived at her door, and

defendant took the keys from where she had been. All of this evidence supports a

jury finding that the victim could have retained possession of her keys and car had

defendant not prevented her from doing so by force or fear — in this case, deadly


In People v. Hoard (2002) 103 Cal.App.4th 599, the defendant entered a

jewelry store and, displaying a gun, demanded car keys from one of the store

employees. He later took the employee‘s car, which was parked outside in a

parking lot. (Id. at pp. 602, 608.) Although recognizing that these facts did not

present ―the ‗classic‘ carjacking scenario,‖ the Court of Appeal held that the crime

―was a carjacking all the same.‖ (Id. at p. 609, fn. omitted.) It explained that ―the

elements of carjacking were established. Defendant took possession of [the

victim‘s] car by threatening her and demanding her car keys. Although she was

not physically present in the parking lot when he drove the car away, she had been

forced to relinquish her car keys. Otherwise, she could have kept possession and

control of the keys and her car.‖ (Ibid.)

The same is true here. This might not be a classic carjacking such as when

the perpetrator approaches a car stopped at a red light and, at gunpoint, forces the


driver and any passengers out, then drives the car away. But all of the statutory

elements of carjacking are met. Moreover, the facts come within the statute‘s

purpose. Because the keys were in the house (or so the jury could reasonably

find), someone who wanted to drive the car could not easily do so surreptitiously

by simply entering the garage and driving away. The person had to enter the

house to get the keys. The victim, Salling, was particularly vulnerable when

defendant knocked on her door intending to take her car, and she answered it. It

appears defendant did not demand the keys from Salling, as in People v. Hoard,

supra, 103 Cal.App.4th 599, but instead killed her so he could take the keys and

drive her car away. This was certainly using force to accomplish the taking. The

nature of the taking — entering a private home to obtain car keys inside that home

in order to use a car in the garage as a getaway — raised a very serious potential

for harm to the victim (here, fatal harm), the perpetrator (defendant crashed the

car), and the public at large (a high-speed chase is very dangerous). (See People v.

Hill, supra, 23 Cal.4th at p. 859.) The jury could have reasonably found that this

was a carjacking.

People v. Coleman, supra, 146 Cal.App.4th 1363, cited by defendant, is

distinguishable. In that case, the owner of a Chevrolet Silverado parked it in front

of his business establishment, left his keys in the shop, and left. The defendant

later entered the business establishment, forced the office manager to give him the

keys to the car, and then drove away in the car. The office manager owned neither

the car nor the keys. The Court of Appeal found insufficient evidence to support a

conviction that the defendant was guilty of carjacking the Silverado. As explained

in Gomez in distinguishing that case, although the Coleman ―court

‗acknowledge[d] that a carjacking may occur where neither the possessor nor the

passenger is inside or adjacent to the vehicle,‘ the circumstances in this case were

‗simply too far removed from the type of conduct that [the carjacking statute] was


designed to address.‘ [(Citing Coleman, at p. 1373.)] The office manager, the

court explained, ‗was not within any physical proximity to the Silverado, the keys

she relinquished were not her own, and there was no evidence that she had ever

been or would be a driver of or passenger in the Silverado.‘ (Ibid.)‖ (People v.

Gomez, supra, 192 Cal.App.4th at pp. 624-625.)

This case is very different. The murder victim owned the keys and the car,

she was physically close to both, and the jury could have reasonably found she

could have retained possession of both had defendant not killed her.

The concurring and dissenting opinion recognizes that in defining

―carjacking,‖ the Legislature employed the same statutory phrase, ―immediate

presence,‖ used to define robbery. But it argues the phrase has a different

meaning for carjacking than for robbery — apparently something like, ―directly

relat[ing] to the victim‘s contemporaneous use of the vehicle.‖ (Conc. & dis. opn.,

post, at p. 5.) If the Legislature had intended such a meaning, it could easily have

said so. But it did not use any such language; rather it employed the oft-

interpreted legal term, ―immediate presence.‖ The language the Legislature

employs is the best indicator of its intent. (People v. Cook (Feb. 5, 2015,

S215927) 60 Cal.4th __, __ [p. 17].) The Legislature enacted the carjacking

statute in 1993, some three years after we definitively interpreted the phrase

―immediate presence‖ in People v. Hayes, supra, 52 Cal.3d at pages 626-628.

(Stats. 1993, ch. 611, § 6, p. 3508.) We presume that when the Legislature

employs words that have been judicially construed (and especially so recently), it

intends the words to have the meaning the courts have given them. Indeed, we

have described this presumption as ― ‗ ‗almost irresistible.‘ ‖ ‘ (People v. Weidert

(1985) 39 Cal.3d 836, 845.)

The concurring and dissenting opinion relies almost exclusively on

committee reports that suggest carjackings like the one here were not the


Legislature‘s primary target. But nothing in the reports indicates the Legislature

intended to limit carjackings to the examples the reports give and to exclude

conduct, like that here, that comes within the statute‘s plain language. Nor could

the reports do so. Committee reports, often drafted by unelected staffers, cannot

alter a statute‘s plain language. (Martinez v. Regents of University of California

(2010) 50 Cal.4th 1277, 1293.) Section 215‘s ―actual language prevails, not the

committee‘s report.‖ (Martinez, at p. 1293.)

Defendant‘s argument regarding the felony-murder rule is based on his

argument regarding the carjacking itself. If, as we have explained, a jury could

reasonably find defendant committed carjacking, it could also find that he killed

the victim ―in the perpetration of, or attempt to perpetrate‖ that carjacking.

(§ 189.) ―Under the felony-murder rule, a strict causal or temporal relationship

between the felony and the murder is not required; what is required is proof

beyond a reasonable doubt that the felony and murder were part of one continuous

transaction.‖ (People v. Young (2005) 34 Cal.4th 1149, 1175.) The jury could

reasonably find that defendant killed the victim to commit the crime of carjacking

(as well as burglary and robbery), a finding that supports the additional finding

that the carjacking and murder were part of one continuous transaction for

purposes of the felony-murder rule. ―Here, the jury could reasonably find

defendant went to the house to steal [and carjack] and killed while doing so.‖

(People v. Horning (2004) 34 Cal.4th 871, 903.)

Defendant‘s argument regarding the carjacking-murder special

circumstance is also largely, although not entirely, predicated on his argument that

the evidence was insufficient to support the carjacking conviction. He argues

additionally that the carjacking was ―merely incidental‖ to the murder. He is

correct that ―for the felony-murder special circumstance to apply, the felony ‗must

not have been merely incidental to the killing.‘ ‖ (People v. Horning, supra, 34


Cal.4th at p. 904.) Here, however, a reasonable jury could have concluded that

defendant‘s intent to take the car was his ―primary — or at least concurrent —

motivation, and that he killed to facilitate the stealing‖ and, in this case,

carjacking. (Ibid.)

Substantial evidence supports defendant‘s conviction of carjacking, of

murder based on the felony-murder rule with carjacking the underlying felony, and

the carjacking-murder special-circumstance finding. Accordingly, we need not

consider defendant‘s other arguments concerning the consequences of any

insufficiency in the evidence.

D. Instructions Regarding the Victim Impact Evidence

At the penalty phase, the prosecution presented victim impact evidence

regarding Ellen Salling, the capital murder victim, and Jennifer Von Seggern, the

victim of one of his earlier crimes. The evidence regarding Salling was admissible

as evidence of the circumstances of the charged crime under section 190.3, factor

(a). (People v. Jones (2012) 54 Cal.4th 1, 68.) The evidence regarding Von

Seggern was not admissible under that factor, because factor (a) relates only to the

charged offense. But it was admissible under section 190.3, factor (b) (violent

criminal activity). (Jones, at p. 68; see People v. Sattiewhite (2014) 59 Cal.4th

446, 480; People v. Davis (2009) 46 Cal.4th 539, 617-618.)

Recognizing this, defendant does not contend the court erred in admitting

the evidence. Rather, he contends it erred in not adequately instructing the jury on

how it should consider the evidence. He argues that ―the jury was not given any

guidance as to how the two types of victim impact evidence should be evaluated in

determining penalty. Instead, the jury was permitted to consider victim impact

evidence in a purely discretionary and arbitrary manner, untethered to any

statutory and constitutional mandates or requirements.‖


The Attorney General contends defendant has forfeited the contention

because he did not request such instructions at trial. ―A party may not argue on

appeal that an instruction correct in law was too general or incomplete, and thus

needed clarification, without first requesting such clarification at trial.‖ (People v.

Hillhouse (2002) 27 Cal.4th 469, 503.) However, even without a request, a

defendant may argue the court erred in instructing the jury ―if the substantial rights

of the defendant were affected thereby.‖ (§ 1259.) Defendant contends the

additional instructions were necessary to adequately instruct the jury on its

deliberative process. If he were correct (as we explain, he is not), error in not

giving the instructions would have affected his substantial rights. Accordingly,

the claim is not forfeited. (Hillhouse, at p. 503.) We have rejected similar

arguments on the merits without finding the argument forfeited. (People v.

Famalaro (2011) 52 Cal.4th 1, 38-39.)

However, the contention lacks merit. We have repeatedly rejected the

claim that the court had to give, even on request, additional instructions regarding

victim impact evidence — both that offered under section 190.3, factor (a), and

that offered under section 190.3, factor (b) — in addition to the standard

instructions the court gave in this case. (People v. Sattiewhite, supra, 59 Cal.4th at

p. 483-484; People v. Hartsch (2010) 49 Cal.4th 472, 510-511; People v. Davis,

supra, 46 Cal.4th at p. 623; People v. Carey (2007) 41 Cal.4th 109, 134.) We

continue to reject the argument that additional instructions were required.

E. Treatment of One of Defendant’s Prior Crimes

Defendant was convicted by a no contest plea of the voluntary

manslaughter of Jennifer Von Seggern. He had originally been charged with her

murder, but the murder charge was dismissed as part of the no contest plea. At the

penalty phase, the prosecution proved the prior conviction under section 190.3,


factor (c) (prior felony conviction), and presented evidence of the underlying facts

under section 190.3, factor (b) (violent criminal activity). Defendant stated he had

no objection to admitting evidence of the underlying facts.

Citing People v. Jones (1998) 17 Cal.4th 279 and People v. Kaurish (1990)

52 Cal.3d 648, the prosecutor stated his intent to introduce evidence that Von

Seggern‘s killing was a more serious crime than voluntary manslaughter, and he

requested the court to instruct the jury on the elements of murder regarding the

case. Defense counsel said he had no objection to the court‘s instructing on

murder but, because the defense intended to point out to the jury that defendant

had been convicted only of manslaughter, he also asked the court to instruct on

manslaughter. He stated he had no objection to ―dealing with the idea that

voluntary manslaughter is a plea bargain from a murder charge. In fact, we‘d like

to have the opportunity to argue that to the jury ourselves.‖ Later, at the urging of

both parties, the court agreed to instruct the jury on both manslaughter and murder

regarding the Von Seggern case.

The prosecutor argued to the jury that the Von Seggern killing was murder.

The court instructed the jury that evidence had been introduced to show defendant

had committed the ―murder or voluntary manslaughter or involuntary

manslaughter‖ of Von Seggern, and it instructed on the elements of each of these


Defendant contends the court erred by permitting the prosecution to ―retry‖

the Von Seggern killing and giving the murder instructions. The Attorney General

contends defendant has forfeited the contentions. He did forfeit any contention

regarding the evidence and the prosecutor‘s jury argument. (Evid. Code, § 353,

subd. (a); People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1052, 1060.)

Defendant claims that any objection would have been futile, thus excusing his

failure to object. But nothing in the record supports the claim. Defendant may,


however, argue that the instructions affected his substantial rights. (§ 1259;

People v. Jones, supra, 17 Cal.4th at p. 312.)

Defendant argues that his attorneys were ineffective for not objecting. We

need not decide whether defendant‘s failure to object was tactical or simply a

recognition that he had no valid objection to make, for his contentions lack merit.

At the time of the trial, the propriety of what occurred was firmly established, and

it remains so today. We have long and repeatedly rejected defendant‘s arguments.

Section 190.3 prohibits evidence at the penalty phase of criminal activity

―for which the defendant was prosecuted and acquitted.‖ Defendant argues that,

because the murder charge was dismissed when he pleaded no contest to

manslaughter, permitting the prosecutor to argue that the crime was murder and

giving murder instructions violated this prohibition. However, dismissal of

charges is not an acquittal for these purposes. ―We have strictly limited this

statutory notion of an acquittal to a judicial determination on the merits of the

truth or falsity of the charge.‖ (People v. Stitely (2005) 35 Cal.4th 514, 563; see

People v. Monterroso (2004) 34 Cal.4th 743, 777.) ―[A] dismissal not based on

any judicial determination with respect to the truth or falsity of the charge is not an

acquittal under section 190.3.‖ (People v. Heishman (1988) 45 Cal.3d 147, 193;

see People v. Kaurish, supra, 52 Cal.3d at p. 703.) This rule applies when, as

here, a charged greater offense is dismissed after the defendant pleads guilty to a

lesser included offense. ―Pursuant to the doctrine of implied acquittal, a

defendant‘s conviction of a lesser degree or lesser included offense of that charged

constitutes an implied acquittal of the greater offense. Nonetheless, a dismissal,

whether or not pursuant to a plea agreement, is not the equivalent of, and does not

constitute, an acquittal pursuant to section 190.3.‖ (People v. Bradford (1997) 15

Cal.4th 1229, 1375.)


Defendant contends that the proscription against double jeopardy and

principles of collateral estoppel and res judicata barred the state from retrying the

manslaughter conviction. However, these doctrines do not apply here because

defendant was not retried for the past crime. ―The presentation of evidence of past

criminal conduct at a sentencing hearing does not place the defendant in jeopardy

with respect to the past offenses. He is not on trial for the past offense, is not

subject to conviction or punishment for the past offense, and may not claim either

speedy trial or double jeopardy protection against introduction of such evidence.‖

(People v. Visciotti (1992) 2 Cal.4th 1, 71; see People v. Danielson (1992) 3

Cal.4th 691, 720 [rejecting similar arguments regarding evidence of a past killing

that showed malice or premeditation when the defendant had been convicted of

voluntary manslaughter for the killing]; People v. Melton (1988) 44 Cal.3d 713,

756, fn. 17.)

Defendant also argues that, because he was convicted only of voluntary

manslaughter for the Von Seggern killing, the court should not have instructed the

jury on the elements of murder regarding that crime. We disagree. In People v.

Jones, supra, 17 Cal.4th 279, the defendant had admitted in juvenile court that he

had committed a misdemeanor battery in an incident at his high school in 1986.

At his subsequent capital trial, the prosecution presented evidence of the

underlying facts of that incident, and the court instructed the jury that it could

consider whether the defendant had committed assault by means likely to cause

great bodily injury, a potential felony. (Id. at pp. 311-312.) The defendant argued

both that the court should not have permitted the prosecution to introduce evidence

of conduct more serious than what he had admitted in juvenile court, and that it

erred in instructing the jury to consider whether he committed the more serious

offense. We disagreed, explaining that not only the fact of conviction, but also the

underlying conduct, is probative on penalty. ―Accordingly, the trial court in the


present case did not err by permitting the prosecution to introduce evidence from

which the jury could find the attack constituted an assault by means likely to

inflict great bodily injury. Nor did it err by instructing the jury on this point.‖ (Id.

at p. 312.) Similarly, the court did not err here in instructing the jury it could

consider exactly what crime defendant committed, including possibly murder,

when he killed Von Seggern.

Finally, defendant argues that ―retrial‖ of the manslaughter conviction

violated his fundamental constitutional rights to a fair trial, due process, and to a

reliable penalty determination. As we have explained, defendant was not retried

for the prior killing. Admitting relevant, admissible evidence does not violate due

process, the right to a fair trial, or the right to a reliable penalty determination.

Indeed, if anything, presenting all of the evidence and permitting the jury to judge

it for itself increases the reliability of the penalty determination. ―The capital

sentencing jury must have the most detailed relevant information about the

individual offender.‖ (People v. Melton, supra, 44 Cal.3d at p. 756, fn. 17

[rejecting similar arguments].) The prosecution presented its evidence, and

defendant was permitted to, and did, present his side of the matter. This process

was fair to both sides.

F. Cumulative Prejudice

Defendant contends the cumulative effect of the asserted errors was

prejudicial. However, there was no error to accumulate.

G. Other Contentions

Defendant reiterates many challenges to California‘s death penalty law that

we have repeatedly rejected. We see no reason to revisit our previous decisions.

Neither section 190.2 nor section 190.3 is impermissibly broad, and factor

(a) of section 190.3 ―does not result in the arbitrary and capricious imposition of


the death penalty.‖ (People v. Rountree, supra, 56 Cal.4th at p. 862.) The jury

may properly consider evidence of unadjudicated criminal activity in aggravation.

(People v. Livingston (2012) 53 Cal.4th 1145, 1180.) Except for evidence of other

crimes and prior convictions, jurors need not find aggravating factors true beyond

a reasonable doubt; no instruction on burden of proof is needed; the jury need not

achieve unanimity except for the verdict itself; and written findings are not

required. (People v. Williams (2010) 49 Cal.4th 405, 459, 470.) ―The California

death penalty scheme does not violate equal protection by treating capital and

noncapital defendants differently.‖ (Livingston, at p. 1180.) ―CALJIC No. 8.88‘s

use of the words ‗so substantial,‘ its use of the word ‗warrants‘ instead of

‗appropriate,‘ its failure to instruct the jury that a sentence of life is mandatory if

mitigation outweighs aggravation, and its failure to instruct the jury on a

‗presumption of life‘ does not render the instruction invalid.‖ (Rountree, at pp.

862-863.) ―Use of the death penalty does not violate international law and is not

unconstitutional.‖ (Livingston, at p. 1180.)


We affirm the judgment.




Retired Associate Justice of the Supreme Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

** Associate Justice of the Court of Appeal, Second Appellate District, Division
Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



I respectfully disagree with the court‘s opinion insofar as it affirms the

conviction for carjacking (Pen. Code, § 215)1 and the related special-circumstance

finding (§ 190.2, subd. (a)(17)(L)). By holding the phrase ―immediate presence‖

has the same meaning for carjacking (§ 215) as for robbery (§ 211), the court

makes every robbery of a car potentially chargeable as a carjacking and subject to

that crime‘s greater punishment, without regard to the difference in culpability. In

my view, section 215‘s language and history do not support the holding.

Defendant killed Ellen Salling and took her car during a home invasion

robbery. When defendant entered the home, Mrs. Salling was baking cookies in

the kitchen and her car was parked in the garage. Based on these facts the People

charged defendant with both robbery and carjacking. The prosecutor in closing

argument told the jury the victim‘s car, even though in the garage, was in her

immediate presence for purposes of robbery because she could, ―if not overcome

by violence or prevented by fear [have] retain[ed] possession.‖ This statement

followed the established law of robbery. (See People v. Hayes (1990) 52 Cal.3d

577, 626–627.) But after telling the jury the same facts also proved a carjacking,

the prosecutor paused to note he had ―detect[ed] a little bit of a quizzical look.‖

The jurors‘ reaction was understandable, given the prosecutor had just described


All further citations to statutes are to the Penal Code.

the ―classic carjacking‖ as taking place when ―you‘re driving along the street, and

somebody comes at you with a gun.‖ Over defendant‘s objection, the court

instructed the jury that ―immediate presence‖ had the same meaning for both

crimes, and the jury convicted defendant of both.

The proposition that a person baking in her kitchen can be carjacked should

prompt quizzical looks. The English-speaking world commonly defines

―carjacking‖ as ―[t]he stealing or commandeering of an occupied car by

threatening the driver with violence; theft from or abduction of a driver by such

means.‖ (Oxford English Dict. Online (Dec. 2014) <> [as of

Feb. 26, 2015].) The word ―carjacking,‖ a portmanteau of ―car‖ and ―hijacking,‖

reflects the common definition: To ―hijack‖ means ―to hold up and commandeer

(a vehicle and its load) in transit.‖ (Ibid.) Notably, the Attorney General in

another case has ―admit[ted] that by limiting section 215 to one specific type of

property, a motor vehicle, the Legislature focused on criminal conduct akin to

hijacking that preys on victims in vulnerable circumstances.‖ (People v. Lopez,

(2003) 31 Cal.4th 1051, 1061 (Lopez).) We relied in part on that admission in

holding the offense of carjacking requires asportation of the car, and in rejecting

the People‘s argument to the contrary. (Id., at pp. 1062–1063.)

That concerns about carjacking as commonly defined motivated the

Legislature to enact section 215 is evident from the following paragraph

summarizing the proposed law‘s purpose, included in virtually every Senate and

Assembly committee report on the bill: ―There has been considerable increase in

the number of persons who have been abducted, many have been subjected to the

violent taking of their automobile and some have had a gun used in the taking of

the car. This relatively ‗new‘ crime appears to be as much thrill-seeking as theft

of a car. If all the thief wanted was the car, it would be simpler to hot-wire the

automobile without running the risk of confronting the driver. People have been


killed, seriously injured, and placed in great fear, and this calls for a strong

message to discourage these crimes. Additionally law enforcement is reporting

this new crime is becoming the initiating rite for aspiring gang members and the

incidents are drastically increasing.‖ (Assem. Com. on Pub. Saf., analysis of Sen.

Bill No. 60 (1993–1994 Reg. Sess.) for hearing of July 13, 1993, p. 1.) These

reports are significant because they identify the problem the Legislature intended

to address. ― ‗[I]t is reasonable to infer that those who actually voted on the

proposed measure read and considered the materials presented in explanation of it,

and that the materials therefore provide some indication of how the measure was

understood at the time by those who voted to enact it.‘ ‖ (People v. Cruz (1996)

13 Cal.4th 764, 774, fn. 5, quoting Hutnick v. United States Fidelity & Guaranty

Co. (1988) 47 Cal.3d 456, 465, fn. 7.) Governor Wilson in signing the legislation

also focused on ―carjacking‖ as commonly understood, describing it as ―a serious

offense which puts all citizens at risk of grievous bodily injury or death even when

they feel secure in their own cars.‖ (Governor‘s message to Sen. on Sen. Bill No.

60 (Sep. 30, 1993) 2 Sen. J. (1993–1994 Reg. Sess.) p. 3502.)

In summary, the ―[l]egislative history . . . indicates that the carjacking

statute was enacted to address a specific problem — the taking of a motor vehicle

directly from its occupants.‖ (People v. Coleman (2007) 146 Cal.App.4th 1363,

1369.) This court has expressly recognized as much: ―The Legislature . . . made

carjacking a separate crime [from robbery], and for a good reason. ‗[C]arjacking

is a particularly serious crime that victimizes persons in vulnerable settings and,

because of the nature of the taking, raises a serious potential for harm to the

victim, the perpetrator and the public at large.‘ ‖ (People v. Hill (2000) 23 Cal.4th

853, 859 (Hill), quoting People v. Antoine (1996) 48 Cal.App.4th 489, 495.) ―In

the usual case of carjacking . . . , all [occupants] are subjected to a threat of

violence, all are exposed to the high level of risk which concerned the Legislature,


and all are compelled to surrender their places in the vehicle and suffer a loss of

transportation.‖ (Hill, at p. 859.)

Confirming its intent to address the specific problem identified in the

legislative history — violent confrontations with the occupants of vehicles, often

involving gangs — the Legislature set the maximum punishment for carjacking at

nine years (§ 215, subd. (b)), as opposed to five years for second degree robbery

(§ 213, subd. (a)(1)(B)), and authorized a 15–year enhancement for gang-related

carjackings (§ 186.22, subd. (b)(4)(B), added by Stats. 1993, ch. 611, § 3,

p. 3479). The Legislature also confirmed its intent to treat carjacking differently

and more harshly than robbery by including passengers as victims (§ 215, subd.

(a) [―from the person or immediate presence of a passenger‖]), even though the

companions of a robbery victim are not automatically considered victims of that

crime. Implementing legislative intent, we have permitted multiple convictions

when a carjacked vehicle had multiple occupants. (Hill, supra, 23 Cal.4th at

pp. 858–861.)

Despite perceiving important differences between carjacking and robbery,

the Legislature modeled the carjacking statute on the robbery statute. (See Lopez,

supra, 31 Cal.4th at p. 1059.) To ensure the differences are respected, we have

advised the lower courts that the ―analogy between robbery and carjacking is

imperfect‖ (Hill, supra, 23 Cal.4th at p. 860) and that the two statutes should not

be interpreted in ―lockstep‖ without regard to legislative intent (Lopez, at p. 1061,

citing Hill, at pp. 855, 860–861). Thus, in Hill we construed the statutory phrase

―against his or her will‖ differently for purposes of carjacking (§ 215, subd. (a))

than for robbery (§ 211) after determining the Legislature intended to protect all

occupants of vehicles, including infants. (See Hill, at pp. 858–861.) Some lower

courts, however, have not followed our advice in construing section 215‘s

―immediate presence‖ requirement. For example, the victim in People v. Gomez


(2011) 192 Cal.App.4th 609 (Gomez), watched from the window of his apartment

as robbers who had assaulted him earlier on the grounds of the complex

―carjacked‖ his truck parked outside. Applying robbery‘s definition of

―immediate presence,‖ the court reasoned the victim was close enough to have

retained possession had he not feared another assault. (Id., at p. 624.) In People v.

Hoard (2002) 103 Cal.App.4th 599 (Hoard), defendant entered a jewelry store,

stole merchandise and an employee‘s car keys, and ―carjacked‖ the parked car.

―Although [the victim] was not physically present in the parking lot when [the

defendant] drove the car away,‖ she ―could have kept possession‖ had she not

been ―forced to relinquish her car keys.‖ (Id., at p. 609.)

Decisions such as Gomez, 192 Cal.App.4th 609, and Hoard, supra, 103

Cal.App.4th 599, simply define carjacking in lockstep with robbery rather than

effectuating the Legislature‘s purpose to deter criminal conduct ―akin to

hijacking‖ (Lopez, supra, 31 Cal.4th at p. 1062) directed toward the occupants of

motor vehicles. Yet here, ―as in any case involving statutory interpretation, our

fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the

law‘s purpose‖ (People v. Murphy (2001) 25 Cal.4th 136, 142), and not to give

words and phrases the same interpretation in every statute regardless of context or

legislative history.

In light of the manifest purpose of section 215, ―immediate presence‖ for

purposes of carjacking must directly relate to the victim‘s contemporaneous use of

the vehicle. Only by using a vehicle does a person become exposed to the

particular conduct the 1993 Legislature intended section 215 to discourage.2 The


To construe ―immediate presence‖ in this way would fairly include

activities closely related to the use of a vehicle, such as approaching a car in a

(footnote continued on next page)


Legislature‘s decision to treat persons in possession of vehicles and their

passengers alike as victims of carjacking further supports this interpretation. A

person‘s status as a passenger, and thus as a victim, necessarily depends on

contemporaneous use of the vehicle. Someone who is given a ride home or to

work can hardly be thought a passenger after stepping through the building‘s front

door. Section 215‘s language and history offer no reason to believe the

Legislature intended to define a larger zone of ―immediate presence‖ surrounding

the possessor of a vehicle than that which surrounds a passenger.

In conclusion, to take a car from a garage by force directed at a person

inside a house is robbery but it is not a crime the 1993 Legislature would have

recognized as carjacking. Accordingly, I would reverse the conviction for

carjacking and the related special-circumstance finding. In all other respects, I

would affirm.




(footnote continued from previous page)

parking lot to retrieve it, entering a car, standing beside a car to pump gasoline,
and exiting a car after parking.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: February 26, 2015

County: Lake
Judge: Robert L. Crone, Jr.



William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Ronald S,
Matthias, Assistant Attorney General, Donna M. Provenzano and Masha A. Dabiza, Deputy Attorneys
General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

William D. Farber
369-B Third Street #164
San Rafael, CA 94901
(415) 472-7279

Masha A. Dabiza
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1305


Opinion Information
Date:Docket Number:
Thu, 02/26/2015S093235