People v. Johnson

Defendant Larry G. Johnson appeals from a judgment (order of probation) entered by the Superior Court of Sacramento County after a jury found him guilty of one count of rape. (Pen. Code, § 261, subd. 2.) Defendant contends: (1) he was denied a fair trial because some members of the jury observed him stopped by the police on a traffic matter after the evening recess on the day before deliberations; (2) the prosecutor committed misconduct in questioning a defense witness; and (3) the trial court erred in instructing pursuant to CALJIC No. 2.62, which permits the jury to draw an adverse inference from a defendant’s failure to explain or deny aspects of the prosecution’s evidence when he testifies.

We hold that the prosecutor committed misconduct during argument to the jury which, in light of the whole record, was prejudicial to defendant. Accordingly, we reverse the judgment.

I

On the evening of March 4, 1978, defendant went to the home of 22-year-old Dyana J. Dyana was acquainted with defendant because he was her former boyfriend’s best friend. Defendant asked Dyana to go to a party with him and she agreed to go for a ride. Defendant and Dyana took her baby to a friend’s…