People v. Johnson

Concurring and Dissenting. — 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 *998 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 Sailing and took her car during a home invasion robbery. When defendant entered the home, Mrs. Sailing 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…

A jury convicted defendant Jerrold Elwin Johnson of the first degree murder of Ellen Sailing 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.

I. The Facts

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 Sailing’s home, beat her…

Filed 2/26/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S093235 v. ) )

JERROLD ELWIN JOHNSON, )

) 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.…