People v. Johnson

I concur in affirming the judgment; however, I cannot join the majority’s analysis of the jury selection issue. Unlike my colleagues I believe we have an obligation to consider and to resolve the question of whether the trial court here had the power to reopen the jury to challenge after Mr. Moulden was seated on the panel.

The majority assumes, without deciding the question, that the trial court still had discretion to permit reopening challenges to the jury at the time the court denied the defense requests to exercise its remaining peremptories. (Maj. opn., ante, p. 1562.) The question is pivotal; what we are really deciding is whether the jury was completed and double jeopardy had attached. While a double jeopardy claim is not being raised by this defendant, the specter of a double jeopardy claim looms every time a trial judge must rule on such a request.

If we as an appellate court duck the question of whether the trial court may properly reopen voir dire we create a quandary for trial judges: they must either decide to play it safe, deny the defendant’s request and assume that at worse an appellate court may reverse for retrial. Or, if they grant the request to reopen voir…

[Opinion certified for partial publication. [*] ]

OPINION

CHANNELL, J.

A jury found appellant Alvin Ray Johnson guilty of robbery committed against a victim over 60 years of age (Pen. Code, §§ 211, 1203.09, subd. (f)), [1] false imprisonment (§ 236), and four counts of first degree burglary. (§§ 459, 460, subd. 1.) He was sentenced to nine years and four months in state prison. He appeals, contending that (1) the trial court improperly refused to reopen jury voir dire; (2) evidence of third party culpability was excluded; (3) the prosecutor committed misconduct; and (4) the false imprisonment was only incidental to the robbery. We affirm the judgment.

On August 26, 1985, [2] the manager of an apartment complex on Acalanes Drive in Sunnyvale noticed that a screen had been removed from an apartment window. The window was open and a corner of the glass had been broken out near the lock. Larry Palacios's apartment had been ransacked and some stereo equipment was missing. Police determined that the intruder had entered by the window and were able to obtain several fingerprints from the area around the point of entry.

On September 28, Kathleen Schweitzberger returned to her…

A jury found appellant Alvin Ray Johnson guilty of robbery committed against a victim over 60 years of age (Pen. Code, §§ 211, 1203.09, subd. (f)), 1 false imprisonment (§ 236), and four counts of first degree burglary. (§§ 459, 460, subd. 1.) He was sentenced to nine years and four months in state prison. He appeals, contending that (1) the trial court improperly refused to reopen jury voir dire; (2) evidence of third party culpability was excluded; (3) the prosecutor committed misconduct; and (4) the false imprisonment was only incidental to the robbery. We affirm the judgment.

I. Facts

A. The Underlying Crimes

On August 26, 1985, 2 the manager of an apartment complex on Acalanes Drive in Sunnyvale noticed that a screen had been removed from an apartment window. The window was open and a corner of the glass had been broken out near the lock. Larry Palacios’s apartment had been ransacked and some stereo equipment was missing. Police determined that the intruder had entered by the window and were able to obtain several fingerprints from the area around the point of entry.

On September 28, Kathleen Schweitzberger returned to her apartment on Ayala Drive in Sunnyvale to…