Opinion
B266421
09-28-2017
CLEAMON DEMONE JOHNSON, Petitioner; v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Sanger Swysen & Dunkle, Robert M. Sanger and Stephen K. Dunkle for Petitioner. No appearance for Respondent. Jackie Lacey, District Attorney, Phyllis C. Asayama and John Harlan II, Deputy District Attorneys, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA424006 ORIGINAL PROCEEDINGS in mandate. Sam Ohta, Judge. Petition denied. Sanger Swysen & Dunkle, Robert M. Sanger and Stephen K. Dunkle for Petitioner. No appearance for Respondent. Jackie Lacey, District Attorney, Phyllis C. Asayama and John Harlan II, Deputy District Attorneys, for Real Party in Interest.
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Due process protects a defendant from vindictive prosecution, that is, an increase in sentence or charges after his or her exercise of a constitutional or statutory right under circumstances that are deemed to present a reasonable likelihood of vindictiveness. After petitioner Cleamon Demone Johnson's two first degree murder convictions were overturned by the California Supreme Court in 2011, on remand the People charged him, in addition to the two original murders, with four additional crimes: three murders and an attempted murder committed in the early and mid-1990s, as well as gang enhancements on the original and new charges. In this writ proceeding, we consider and reject Johnson's contention that the new charges and enhancement allegations must be dismissed as vindictive. We hold that, assuming a presumption of vindictiveness arose, the People successfully rebutted it. The fact Johnson no longer stands convicted of any crime is an objective change in circumstances that legitimately influenced the charging decision. Moreover, the People demonstrated that after the original trial, new evidence was discovered, the significance of existing evidence was clarified, or existing evidence became potentially admissible, further rebutting any presumption of vindictiveness. Accordingly, we deny Johnson's petition in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Beroit/Loggins murders and Johnson's successful appeal
On December 16, 1994, petitioner Johnson and a codefendant, Michael Allen, were charged with the August 5, 1991 murders of Peyton Beroit and Donald Loggins, with a multiple-murder special circumstance allegation (Pen. Code, § 190.2, subd. (a)(3)) and allegations that Allen, a principal in the crime, used an assault weapon furnished by Johnson (§§ 12022, subd. (a), 12022.5, subd. (b), 12022.4). Both Johnson and Allen were believed to be members of a Los Angeles street gang, the 89 Family Swans, a Bloods-affiliated gang. The evidence adduced at trial indicated that on August 5, 1991, Johnson, a high-ranking member of the gang, told Allen to shoot Beroit, who was a rival gang member. Allen shot both Beroit and Loggins, who were sitting together in a parked car. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 64.) In September 1997, a jury convicted Johnson and Allen of the first degree murders of both victims, with multiple-murder special-circumstance findings, and returned verdicts of death for both defendants.
All further undesignated statutory references are to the Penal Code.
The gang is also known as the 89 Family and 89 Family Bloods.
Johnson and Allen appealed. In December 2011 our California Supreme Court reversed the guilt and penalty phase verdicts because the trial court had improperly discharged a deliberating juror at the prosecutor's request, and over a defense objection. (People v. Allen and Johnson, supra, 53 Cal.4th at pp. 64, 68, 79.)
2. Addition of charges on remand
Following his successful appeal, Johnson remained charged with the Beroit and Loggins murders. However, these were not the only crimes in which Johnson was a suspect. As relevant here, the People had believed since the early to mid-1990s that Johnson was responsible for participating in, or ordering, a series of gang-related murders. Johnson was suspected of being involved in a September 1991 shooting that killed Tyrone Mosley and injured Kim Coleman. He was suspected of ordering the September 1992 murder of Albert Sutton, who was planning on testifying for the prosecution in regard to a separate shooting incident involving Johnson. And Johnson was suspected of ordering the June 1994 murder of Georgia Denise Jones, who was slated to testify for the prosecution at the murder trial of a Swans gang member. Johnson was tried for the Mosley/Coleman offenses in 1999, but the jury deadlocked; the court declared a mistrial and, on February 17, 2000, the matter was dismissed pursuant to section 1382. The People indicated they might refile the charges, but did not do so. Johnson was never prosecuted for the Sutton or Jones murders, although the actual shooters were convicted. (See People v. Wilson (Apr. 19, 1999, B111522 [nonpub. opn.] [affirming conviction of Reco Wilson for murdering Jones].)
We take judicial notice of the unpublished opinion in Wilson. (Evid. Code, § 452.)
Approximately two and one half years after our Supreme Court's decision in People v. Allen and Johnson, the People dismissed the original Beroit/Loggins case and on April 25, 2014 filed an amended complaint charging Johnson with the murders of Sutton, Jones, and Mosley, and the willful, deliberate, and premeditated attempted murder of Coleman, as well as the previously charged murders of Beroit and Loggins. As to the Sutton and Jones murders, the complaint alleged the special circumstance that the victims were intentionally killed because they were witnesses to a crime. (§ 190.2, subd. (a)(10).) As to the Coleman attempted murder, the complaint alleged Johnson personally inflicted great bodily injury. (§ 12022.7, subd. (a).) As to both the Coleman and Mosley offenses, the information alleged Johnson personally used a handgun (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). Multiple murder special circumstances (§ 190.2, subd. (a)(3)) were alleged as to the murders, and section 186.22, subdivision (b) gang enhancements were alleged as to all the offenses. After a preliminary hearing, an information containing the charges was filed on April 9, 2015.
The complaint alleged that all the offenses were committed for the benefit of a criminal street gang pursuant to "section 186.22(b)(1)(c) and 186.22(b)(5)." However, subdivisions (b)(1)(c) and (b)(5) did not exist in 1991, when Johnson allegedly committed the Beroit and Loggins murders. The information issued after the preliminary hearing alleged only section 186.22, subdivision (b). In supplemental briefing requested by this court, the People confirm they intend to rely only on the version of the statute in effect at the time of the murders.
3. Johnson's motion to dismiss for vindictive prosecution
In May 2015, Johnson moved to dismiss the new charges and the newly added gang enhancements on the Loggins and Beroit murders. He urged that addition of the new charges after his successful appeal increased his potential sentence and amounted to vindictive prosecution in violation of his due process rights. Therefore, he insisted, he was entitled to an evidentiary hearing and dismissal of the new charges.
The People opposed the motion to dismiss. They argued that prosecution of the case was not vindictive because the new charges did not expose Johnson to a potentially greater sentence; the People had "sought death in the first trial, and the People are seeking death in the retrial."
The trial court ruled that addition of the new offenses gave rise to a presumption of vindictiveness. It reasoned that addition of the charges "upped the ante such that a defendant might be deterred from exercising a legal right[.] [¶] . . . [T]he defendant originally faced a two count murder case. Now he faces an additional three counts of murder as well as an additional attempted murder charge." Although Johnson faced no greater punishment than death as a result of the new charges, "he nevertheless is faced with an increase in the potential for the imposition of death judgment as well as an added life sentence on the attempted murder charge." The court ordered an evidentiary hearing to determine whether the People could rebut the presumption. It did not find, and Johnson did not allege, actual vindictiveness.
Codefendant Allen asked to join the vindictive prosecution motion insofar as it challenged the addition of the gang enhancements on the Beroit/Loggins murders. The trial court concluded the gang enhancements added no potential punishment, because the charged offense was a murder; "the punishment [for the murder] exceeds the level of punishment that otherwise is applicable under the gang allegation to increase the term before a person becomes eligible for parole under [section] 186.22, subdivision (b), paragraph (5)." Moreover, evidence relating to gangs had been introduced at the first trial.
The People then presented supplemental briefing and materials aimed at rebutting the presumption of vindictiveness. In support of their contention that changed circumstances legitimately influenced their charging decision, the People offered the declaration of Deputy District Attorney Robert Rabbani, which described the evolution of events relating to the retrial and the People's rationale for bringing the new charges. Rabbani explained that after the 2011 reversal of Johnson's convictions, the People, with the L.A.P.D.'s assistance, extensively reinvestigated the Beroit/Loggins crimes, as well as eleven murder cases and three attempted murder cases in which Johnson was a suspect, developing evidence the People hoped to admit at the Beroit/Loggins retrial pursuant to Evidence Code section 1101, subdivision (b). The reinvestigation "revealed several changes in circumstances" that the People believed would enable them to prove beyond a reasonable doubt that Johnson was responsible for the Sutton, Jones, and Mosley murders. Attached to Rabbani's trial court declaration were 18 exhibits, comprising approximately 200 pages, consisting of, among other things, portions of police interviews, wiretap recordings, and preliminary hearing testimony. Rabbani averred that the decision to add the new crimes was "not a reaction or response to Johnson's successful appeal of the Loggins and Beroit case. Rather, the decision to file the additional murder charges was made only after a careful review of all the evidence collected during a thorough re-investigation of the cases, which was not completed until more than two years after the reversal."
We discuss these materials in more detail where relevant, post.
The People incorporated the Rabbani declaration into their Return before this court.
The People also argued, inter alia, that practical considerations justified the decision not to file the additional charges until after the successful appeal. "[P]ursing these cases would have put witnesses' lives at risk, expended limited resources, and could have resulted in no greater punishment than Johnson had already received on the Loggins and Beroit murders." Further prosecution following Johnson's convictions and death sentences in the Beroit and Loggins crimes therefore "would have been futile . . . ."
In response, Johnson argued a presumption of vindictiveness cannot be rebutted by the prosecutor's reassessment of the evidence; and here, the assertedly "new" information was inconsequential and was either known to the prosecution or available years before the 2014 filing.
The trial court found the People had successfully carried their heavy burden of rebutting the presumption of vindictiveness. Applying the correct legal standards, the court reasoned that although a prosecutor's mere reassessment of the evidence is insufficient to rebut the presumption of vindictiveness, the People's explanation was credible and the new charges were based on objective changes in circumstances that "guided [the prosecutors] in the proper exercise of prosecutorial discretion" and "explains away actual vindictiveness." The court concluded that the "timing, the nature of the investigation into potential [Evidence Code section] 1101(b) evidence, and the discovery of either unobserved connections or new information all appear to be based not on vindictiveness but, rather [on] the utilization of proper prosecutorial discretion." Accordingly, it denied the motion to dismiss.
4. Petition for writ of mandate
On August 28, 2015, Johnson filed a petition for writ of mandate and/or prohibition in this court challenging the trial court's ruling, arguing the addition of the new charges after his successful appeal gave rise to a presumption of vindictiveness, which the People had failed to rebut. We issued an order to show cause.
In his petition Johnson argued, as he did below, that the "scant evidence" the People offered to show changed circumstances was "relatively unimportant"; most of the information was "available years ago," but the charges were nonetheless not filed until after the successful appeal; and other evidence reasonably should have been discovered before the Beroit/Loggins trial.
The People countered that no presumption of vindictive prosecution arose because (1) Johnson faces no threat of increased punishment as a result of the additional charges; (2) contrary to the trial court's conclusion, no presumption of vindictiveness can arise when, as here, the new charges are unrelated to those originally charged; and (3) even if the presumption arose, they successfully rebutted it. They averred that the decision to charge Johnson with the newly added offenses was "motivated by the inherent duty of prosecutors to pursue society's interest in punishing persons for crimes they have committed." In the People's view, Johnson's "removal from death row" was itself a changed circumstance justifying the new charges. They explained: "Large amounts of judicial, prosecutorial, and law enforcement resources are expended prosecuting a capital case to death verdict. When a defendant is already on death row, expending more resources to prosecute a defendant for other charges, charges that would add nothing to that punishment, does not make practical sense. Even considering the inherent justice that flows from guilty verdicts in the form of truth validation and accountability, validation and accountability alone do not necessarily overcome the consideration of expending large amounts of resources to deem someone again to be deserving of death, who is already facing a death sentence. [¶] When a defendant is no longer on death row, and he is no longer convicted of any murder, there is a potential that there will be no justice in any sense. Thus, reinvestigating and potentially charging a defendant for other conduct - especially other murders - to ensure justice for all criminal behavior is readily justified. Johnson's change in status alone justified additional investigation and the subsequent decision to charge him with the murders of additional victims." According to the People, this "legitimate penal interest eliminates the reasonable likelihood that the motivation for charging was vindictiveness, and the appearance of vindictiveness."
We initially issued a published opinion on October 27, 2016, granting Johnson's petition in part. We subsequently granted the People's petition for rehearing to further consider the parties' arguments. We now conclude the trial court's ruling was correct in its entirety, and Johnson's petition must be denied.
Our concurring and dissenting colleague faults us for coming to a different conclusion after reconsidering this matter. But as Winston Churchill said, it is better to be both right and consistent, but if you have to choose, you must choose to be right. Manchester, The Last Lion: Winston Spencer Churchill Alone 1932-1940 (1988) p. 17; <https://www.winstonchurchill.org/resources/quotes> (as of September 27, 2017). The function of a petition for rehearing, after all, is to allow a court to correct errors of law or fact made in its original opinion.
DISCUSSION
1. Standard of review
Because the vindictive prosecution issue presented involves a mixed question of law and fact, our review is de novo, although we review the trial court's determination of historical facts deferentially under the substantial evidence standard. (People v. Cromer (2001) 24 Cal.4th 889, 901; People v. Clark (2016) 63 Cal.4th 522, 556-557.)
2. Vindictive prosecution
The "due process clauses of the federal and state Constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) forbid the prosecution from taking certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 98; In re Bower (1985) 38 Cal.3d 865, 869 (Bower).) "It is 'patently unconstitutional' to 'chill the assertion of constitutional rights by penalizing those who choose to exercise them.' [Citation.]" (People v. Valli (2010) 187 Cal.App.4th 786, 802.)
The vindictive prosecution doctrine has its genesis in North Carolina v. Pearce (1969) 395 U.S. 711 (Pearce), overruled on other grounds by Alabama v. Smith (1989) 490 U.S. 794, 802-803, and Blackledge v. Perry (1974) 417 U.S. 21 (Blackledge). In Pearce, the high court found a due process violation where a defendant was faced with a longer total sentence on reconviction after his successful appeal. (Pearce, at pp. 713, 723-726.) Pearce explained due process requires not only that vindictiveness play no actual part in the sentence a defendant receives on reconviction, but, because the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal, due process "also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." (Id. at p. 725.) "To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a 'prophylactic rule,' [citation], that 'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.' " (Wasman v. United States (1984) 468 U.S. 559, 564-565.) Accordingly, Pearce "applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." (United States v. Goodwin (1982) 457 U.S. 368, 374 (Goodwin).)
In Blackledge, the Supreme Court extended this prophylactic rule to conduct by prosecutorial authorities. There, the defendant, Perry, was charged with and convicted of a misdemeanor in an inferior court. He then exercised his state law right to a de novo trial in a superior court. Before the de novo trial commenced, the prosecutor obtained an indictment charging Perry with a felony based on the same conduct at issue in the misdemeanor case, and Perry pleaded guilty. (Blackledge, supra, 417 U.S. at pp. 22-23.) Blackledge concluded "it was not constitutionally permissible for the State to respond to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo." (Id. at pp. 28-29.) The court explained: "A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals - by 'upping the ante' through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy - the State can insure that only the most hardy defendants will brave the hazards of a de novo trial." (Id. at pp. 27-28.) As in Pearce, Blackledge held that the "likelihood of vindictiveness justified a presumption that would free defendants of apprehension of such a retaliatory motivation on the part of the prosecutor." (Goodwin, supra, 457 U.S. at p. 376; see Thigpen v. Roberts (1984) 468 U.S. 27, 30-31.)
The presumption of vindictiveness is therefore a prophylactic rule designed to protect a defendant's due process rights where there is a danger the government might retaliate against him or her for exercising a constitutional or statutory right. (Bower, supra, 38 Cal.3d at p. 879 ["It is thus apparent that the presumption of unconstitutional vindictiveness is a legal presumption which arises when the prosecutor increases the criminal charge against a defendant under circumstances which . . . are deemed to present a 'reasonable likelihood of vindictiveness.' "].) When such a presumption is deemed to arise, an actual retaliatory motivation need not be shown, and the prosecutor's subjective motivation is irrelevant. (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 369 (Twiggs); Bower, at pp. 879, 880, fn. 7.) "The presumption is not based on the subjective state of mind of the individual prosecutor and does not imply that he or she individually harbors an improper motive." (Bower, supra, at p. 879.)
As the high court has explained: "The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to 'presume' an improper vindictive motive. Given the severity of such a presumption, however - which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct - the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists." (Goodwin, supra, 457 U.S. at pp. 372-373.)
Therefore, in the posttrial setting, a defendant can prove prosecutorial vindictiveness two ways. First, he or she may present evidence of the prosecutor's retaliatory motive to affirmatively prove actual vindictiveness. Second, absent any showing of actual vindictiveness, the defendant can show facts sufficient to give rise to a presumption of vindictiveness, thereby shifting the burden to the prosecution to show the increased sentence or charge did not result from vindictiveness. (Goodwin, supra, 457 U.S. at pp. 381, 384; U.S. v. Wall (10th Cir. 1994) 37 F.3d 1443, 1447; U.S. v. Paramo (3d Cir. 1993) 998 F.2d 1212, 1220.) "Where the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.]" (Twiggs, supra, 34 Cal.3d at p. 371.) Once this prima facie case is made, a " 'heavy burden' " shifts to the prosecution to dispel the appearance of vindictiveness, as well as actual vindictiveness. (Ibid.; Bower, supra, 38 Cal.3d at p. 879.)
The dissent states that after an initial trial is completed, "prosecutors' charging discretion decreases and judicial scrutiny increases. In other words, judicial oversight of the State's charging discretion reaches its apex after a conviction is overturned on appeal and the matter is set for retrial, especially in a capital case." (Conc. & dis. opn., post, at p. 15.) This formulation is curious. Appellate courts are required to apply the familiar standards of review depending on the issue at hand: abuse of discretion, independent judgment, substantial evidence, etc. Apart from these, there is no "apex" of our powers of review, nor does anything in the cases cited by the dissent (Blackledge, Goodwin, Bower) so hold. The prosecutor's charging discretion does not have a nadir, nor does it ebb and flow in the fashion the dissent suggests. The prosecutor always retains charging discretion; he or she does not lose discretion simply because a trial is completed, or because an appeal is filed or is successful. " '[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge[s] to file . . . generally rests entirely in his discretion.' " (People v. Peyton (2014) 229 Cal.App.4th 1063, 1075, quoting Bordenkircher v. Hayes (1978) 434 U.S. 357, 364; People v. Lucious (1984) 153 Cal.App.3d 416, 424 ["Prosecutorial discretion in determining what charges and when to file against a defendant is basic to the framework of the California criminal justice system"].) Unquestionably, a prosecutor may not act vindictively, and if he or she acts in a fashion that appears vindictive, the presumption will arise; but this is an entirely distinct concept from the dissent's suggestion that the prosecutor's charging discretion evaporates once an appeal succeeds. The dissent seems to think that, once an appeal is successful - or, by logical extension, is even filed - a case must be frozen in time exactly as originally charged. But this is not the law. Due process "is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.' " (Blackledge, supra, 417 U.S. at p. 27; Goodwin, supra, 457 U.S. at p. 375.)
In the instant matter there is no contention, and no evidence, of actual prosecutorial vindictiveness. Thus, the new charges and the newly added gang enhancements are barred only if their addition gives rise to an unrebutted presumption of vindictiveness. (See Goodwin, supra, 457 U.S. at pp. 380-381; U.S. v. Esposito (3d Cir. 1992) 968 F.2d 300, 303.)
3. The newly added Sutton, Jones, and Mosley/Coleman offenses
a. The fact the newly added murders and original offenses are all capital crimes does not preclude a presumption of vindictiveness
At the outset, we reject the People's argument that because they sought the same penalty - death - on the three new murder charges as they did in the Loggins/Beroit case, the presumption of vindictiveness could not arise. Due process protects not only against an increase in punishment, but also against an increase in charges when brought under circumstances deemed to present a reasonable likelihood of vindictiveness. (See, e.g., Blackledge, supra, 417 U.S at p. 31, fn. 8 ["Our holding today . . . is not that Perry was denied due process by the length of the sentence imposed by the Superior Court, but rather by the very institution of the felony indictment against him"]; Bower, supra, 38 Cal.3d at p. 879 [presumption arises when prosecutor "increases the criminal charge" under circumstances which are deemed to present a reasonable likelihood of vindictiveness, italics added]; People v. Valli, supra, 187 Cal.App.4th at p. 802 [gravamen of vindictive prosecution is the "increase in charges or a new prosecution brought in retaliation for the exercise of constitutional rights," italics added].) With the addition of the new death-eligible charges, even if Johnson were to be acquitted in the original Beroit/Loggins case, he could nonetheless be sentenced to death should the jury convict him on one of the newly added capital charges; he could also be sentenced to prison on the attempted murder charge even if acquitted on all other charges. Moreover, while it is true a defendant may be put to death only once, it cannot be denied that defending against six murder and attempted murder charges is a more onerous burden than defending against two. People v. Ledesma (2006) 39 Cal.4th 641, does not compel a contrary conclusion. There the defendant was originally sentenced to death and, on retrial after reversal of his convictions, again sentenced to death on the same offenses. (Id. at pp. 655, 730-731.) Here, in contrast, the prosecution has not simply sought the same penalty on the originally charged crimes; it has added additional offenses.
b. Assuming arguendo the presumption of vindictiveness arose, the People have rebutted it
The People further argue that no presumption of vindictiveness can arise where, as here, the new charges are unrelated to the original charges, that is, when they stem from a different nucleus of facts. Echoing Blackledge's "upping the ante" analogy, the People argue that a presumption of vindictiveness arises only when the prosecution increases charges "on the same hand" - that is, in the same case in which the defendant exercised his or her constitutional or statutory right. In the People's view, because the Sutton, Jones, and Mosley/Coleman offenses arose from "different 'hands,' " the presumption cannot arise.
As far as we are aware, neither the United States Supreme Court nor the California Supreme Court has addressed whether, or under what circumstances, a presumption of vindictiveness arises when new charges, unrelated to those at issue in the original matter, are added after a defendant's exercise of his constitutional or statutory rights. But many federal and sister state courts have concluded that when the original and newly charged crimes arise from different conduct, no presumption of vindictiveness arises. (See United States v. Mallah (2d Cir. 1974) 503 F.2d 971, 988 ["It is one thing to increase a charge from manslaughter to murder, and quite another to charge a defendant, subsequent to a successful appeal, with a second murder"]; Williams v. Bartow (7th Cir. 2007) 481 F.3d 492, 502-504; U.S. v. Ribota (7th Cir. 2015) 792 F.3d 837, 841; U.S. v. Chappell (8th Cir. 2015) 779 F.3d 872, 881 ["Without more, 'adding new charges based on independent acts, "even where the separate acts that prompted the new charges occurred in the same spree of activity," does not create a presumption of prosecutorial vindictiveness' "]; United States v. Partyka (8th Cir. 1977) 561 F.2d 118, 124 ["we do not read [Blackledge] as taking away from prosecutors their traditional and proper discretion in deciding which of multiple possible charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time"]; U.S. v. Kendrick (11th Cir. 2012) 682 F.3d 974, 982 ["adding new charges based on independent acts, 'even where the separate acts that prompted the new charges occurred in the same "spree of activity," ' does not create a presumption of prosecutorial vindictiveness"]; Humphrey v. U.S. (11th Cir. 1989) 888 F.2d 1546, 1549 ["Appellant has not faced stiffer charges arising out of one single incident. The charges in the second indictment are not a substitution; indeed, they are different charges based upon independent acts. Although the timing of the second indictment suggests that Blackledge and Thigpen are applicable, they are not"]; People v. Kun Lee (Ill. App. Ct. 2011) 954 N.E.2d 338, 344 ["defendant committed completely separate offenses, on separate days, and had separate felony cases filed against him. His successful appeal in one case had absolutely no bearing on his other case"]; Mraz v. State (Wyo. 2016) 378 P.3d 280, 289 ["we can discern no basis for recognizing a presumption where a defendant successfully appeals one conviction and is subsequently charged with an entirely different crime arising out of an entirely different set of circumstances"]; Schiro v. State (Ind.App. 2008) 888 N.E.2d 828, 839-840 ["prosecutorial vindictiveness occurs when new, more serious or additional charges are brought for the same underlying conduct after a defendant has successfully appealed"; doctrine inapplicable when new charges "were wholly unrelated to the murder conviction and death penalty sentence - different victims, different dates, and different charges" and were pursued not to punish defendant for his successful appeal but to " 'achieve the interests of justice associated with the previous rapes that became relevant after his death sentence was reversed' "].)
In a related context, courts have also held that no presumption of vindictiveness arises when new charges are added after a defendant's acquittal. (See U.S. v. Kendrick, supra, 682 F.3d at p. 982 [listing cases]; U.S. v. Esposito, supra, 968 F.2d at p. 304; U.S. v. Rodgers (8th Cir. 1994) 18 F.3d 1425, 1430-1431; U.S. v. Wall, supra, 37 F.3d at p. 1449; U.S. v. Johnson (2d Cir. 1999) 171 F.3d 139, 140-142; People v. Valli, supra, 187 Cal.App.4th at pp. 804-805.)
Other courts, particularly the Ninth Circuit, have concluded that the fact the new charges arose from a different nucleus of facts is not dispositive (see United States v. Groves (9th Cir. 1978) 571 F.2d 450, 454; United States v. DeMarco (9th Cir. 1977) 550 F.2d 1224, 1226-1227), but may be a circumstance cutting against a finding the presumption applies. (See United States v. Robison (9th Cir. 1981) 644 F.2d 1270, 1272-1273; United States v. Griffin (9th Cir. 1980) 617 F.2d 1342, 1347-1348.) And, on facts readily distinguishable from those present here, U.S. v. Jenkins (9th Cir. 2007) 504 F.3d 694 concluded the presumption arose although the original and newly charged crimes were not the same. (Id. at pp. 700-701.)
These authorities suggest that when the People bring charges unrelated to the original crimes after a successful appeal, a presumption of vindictiveness arises only rarely, if at all. We need not reach the question, however, because even assuming arguendo that the presumption arose, the People successfully rebutted it. "In order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (Bower, supra, 38 Cal.3d at p. 879; People v. Valli, supra, 187 Cal.App.4th at p. 803.)
The dissent opines, erroneously, that we have concluded a presumption of vindictiveness never arises when the original crimes and new charges are unrelated. (Conc. & dis. opn., post, at p. 2.) This is simply incorrect; as we clearly state, we do not reach the issue but assume the presumption arose here despite the fact the original and new charges were unrelated. We simply point out that the majority of courts considering the question have found this circumstance either precludes or diminishes the likelihood the presumption will arise.
First, the fact Johnson now stands convicted of no murder, and no longer faces a death sentence, is itself an objective change in circumstances that legitimately influenced the charging decision. In deciding which charges to bring and when, it is reasonable for a prosecutor to consider the nature of the defendant's existing convictions and sentence, if any. (People v. Kun Lee, supra, 954 N.E.2d at p. 343 ["It is logical to assume that, after defendant received imprisonment terms of 10 years and 3 years" in one case, prior to his successful appeal the state chose not to prosecute him on an unrelated arson charge "in order to conserve prosecutorial resources"]; U.S. v. Wilson (4th Cir. 2001) 262 F.3d 305, 319 ["we think that in the situation where the charging decision was made at a time when a defendant's success on appeal would mean that he would be released from prison within a shorter time, it is at least as likely that the decision was based on the fear that the defendant would pose a threat to public safety" as on vindictiveness]; United States v. Allen (9th Cir. 1982) 699 F.2d 453, 460-461 [presumption not warranted where government based its decision whether to prosecute on the severity of the sentence to be imposed in an earlier, unrelated case; " 'it was believed that if the defendant received a substantial sentence on the Oregon case, there would be no compelling interest to proceed on the present case' "]; U.S. v. Moulder (5th Cir. 1998) 141 F.3d 568, 572 [dismissal of conviction was an event that would motivate the government to reinstate a previously dismissed drug charge]; Schiro v. State, supra, 888 N.E.2d at p. 840 [the " 'need to subject the victims and other witnesses to the often agonizing judicial system was minimal and not necessary . . . [and] only became necessary when the death sentence was foreclosed' "]; People v. Tirado (1984) 151 Cal.App.3d 341, 350 ["The prosecution was awaiting the sentencing for the gas station offenses, hoping for a maximum sentence and thus to avoid the cost and effort of a second separate case filing"], disapproved on another point in People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.)
U.S. v. Johnson, supra, 171 F.3d 139, is instructive. There the court reasoned: "A presumption of vindictiveness arises when the circumstances of the case create a 'realistic likelihood' of prosecutorial vindictiveness. [Citation.] Because the Government did not assert any reason why the prosecution of Johnson on federal weapons charges could not, as a practical matter, have been initiated at an earlier time, the district court assumed (appropriately, in our view) that the new charges were attributable to the acquittal on the RICO charges, which followed Johnson's exercise of his right to a jury trial. In these circumstances, it is conceivable that the weapons charges were brought in retaliation for Johnson's exercise of his rights. However, the Government also might have decided from the outset that it was unnecessary for Johnson to be convicted and sentenced for both sets of charges; under this line of thinking, the weapons prosecution was superfluous unless the RICO prosecution proved unsuccessful. This rationale does not eliminate the 'but for' causal connection between Johnson's exercise of his right to a jury trial and the weapons prosecution, but it nevertheless is entirely legitimate, and certainly cannot be considered vindictive. [Citation.]" (Id. at p. 141.)
Here, the People were faced with a defendant suspected of playing a role in multiple murders, at least two of which were allegedly murders of witnesses. Having successfully obtained guilty verdicts and capital sentences on two of those crimes, the People could legitimately and sensibly decide that trying Johnson on the other crimes in which he was a suspect, or retrying him on the Mosley/Coleman offenses, would have little benefit or practical effect and would be an unwise use of limited prosecutorial resources. Moreover - and even more importantly - it was eminently reasonable for the prosecution to conclude it might have been irresponsible to potentially put additional witnesses' lives at risk by trying Johnson on additional crimes, when he had already been sentenced to death and - as a practical matter - little more could be gained from additional prosecutions. Now, however, Johnson stands convicted of no murder and apparently no crime, and the People may legitimately consider this fact when deciding whether to prosecute him for other offenses. The determination that it is prudent to try Johnson on other charges supported by the evidence in order to maximize the likelihood he will be convicted of at least some charge is reasonable and is a legitimate prosecutorial consideration.
Second, the People demonstrated, via the Rabbani declaration and attached exhibits, that evidence had become admissible or available in the newly added cases, further supporting a conclusion that the presumption has been rebutted. We discuss the evidence in regard to each of the newly added charges seriatim.
(i) The Sutton murder
The Rabbani declaration, supported with exhibits, described the following. On September 12, 1992, Albert Sutton, a member of the 89 Family gang, took his brother, Danny Foster Glass, to Johnson's house. Glass was a member of a Crips gang. Johnson said, "I can't believe you brought this over to our hood. He's a Crip." Gunfire erupted and Glass was shot; he survived but lost one eye. Johnson and his brother were arrested. Sutton planned to testify against Johnson, and Johnson allegedly ordered his cousin Leon Johnson to kill Sutton. A few days later, on September 16, 1992, Leon shot and killed Sutton. Leon allegedly admitted to police in a 1995 interview that he had killed Sutton on Johnson's orders, after Johnson threatened Leon's family. However, Leon claimed near the end of the interview that he had lied about Johnson's involvement.
For ease of reference, and with no disrespect, we hereinafter refer to Leon Johnson by his first name.
Leon was tried for Sutton's murder in May and June 1998. His trial ended in a mistrial after the jury was unable to reach a verdict. In July 1998, Leon pleaded guilty to second degree murder and admitted a gun allegation, and was sentenced to 18 years to life in prison.
The People argued below that their decision to charge Johnson with the Sutton murder in 2014 was justified by changed circumstances and newly admissible evidence, in that (1) Leon had become available as a witness, and (2) testimony from Sutton's sister, Anita Terrell, had been discovered and/or had become admissible by virtue of the 2011 enactment of Evidence Code section 1390.
A. Evidence related to Leon
When Johnson was tried for the Beroit and Loggins murders in 1997, Leon's out-of-court statements to police regarding Johnson's role in the Sutton murder were inadmissible. Under Crawford v. Washington (2004) 541 U.S. 36, testimonial hearsay is inadmissible unless the defendant has had an opportunity to cross-examine the declarant. (Id. at p. 68.) Leon's 1995 statements were made during a police interrogation and were thus testimonial. (Id. at p. 52.) At least until he was convicted and the time for any appeal expired, Leon retained a Fifth Amendment privilege against self-incrimination and could not be compelled to testify, making his out-of-court statements implicating Johnson inadmissible testimonial hearsay. (See People v. Fonseca (1995) 36 Cal.App.4th 631, 633, 637 [at the earliest, privilege expires when the time to file an appeal has passed with no notice of appeal filed].) In 2014, however, Leon's Fifth Amendment privilege had likely expired; he could be called as a witness and cross-examined, and his statements during the 1995 police interview were potentially admissible. Additionally, in a 2012 police interview and at a 2008 parole hearing, Leon had repeated his account that Johnson ordered the Sutton killing. The trial court found these changed circumstances legitimately influenced the People's charging decision. Although Leon's statements were not new, his "motive for saying" Johnson ordered the killing was different; in 1998, he had a motive to shift blame, but that motive no longer existed after his conviction and service of his prison term. Leon's statements to the parole board also enhanced his credibility, because they potentially conflicted with Leon's goal of being released on parole.
We make this observation based on the record before us. Should Leon be called to testify in a future proceeding and attempt to assert a Fifth Amendment privilege, the question of its applicability would be for the trial court in the first instance.
Exercising our independent review on the question of whether the facts found by the trial court supported the finding the presumption was rebutted, we discern no error. When the People charged Johnson with Sutton's murder in 2014, they had crucial evidence - the statements of the actual shooter implicating Johnson - that was not available when they tried Johnson in the original Beroit/Loggins case. The new availability of this evidence, by itself, was a changed circumstance rebutting the presumption of vindictiveness. Additionally, as the trial court observed, Leon's credibility was enhanced because he no longer had a motive to shift blame and had made statements to the parole board implicating Johnson, even though such statements potentially cut against his self-interest. (See In re Shaputis (2011) 53 Cal.4th 192, 217 [accepting responsibility for crime and gaining insight are factors relevant to a parole suitability determination]; Cal. Code Regs., tit. 15, § 2402, subd. (d)(3).)
B. Evidence related to Terrell
At Leon's 1998 trial, Terrell testified that within a few days of Glass's shooting she heard Sutton on the telephone with another person. After the call ended she asked Sutton why he was so upset. He replied that "they don't want him to testify," and " 'they're crazy, these fools are crazy, they shot my brother.' " Sutton stated he nonetheless intended to testify. The trial court precluded Terrell from testifying about the content or the source of the call, presumably on hearsay grounds.
In a November 2013 police interview, Terrell described a telephone call in which Johnson spoke to her directly, saying " 'You know, he's going down. He's going . . . to be dead before he even testify 'cause we're going to kill him' " and " 'he's a dead man.' " At the 2014 preliminary hearing, Terrell also described eavesdropping on a conversation between Johnson and Sutton. Johnson said, " 'You know, do what I told you. Better not testify.' " Sutton responded, " 'Look, fool, I told you I'm testifying. You shot my brother. I'm not dealing with this crap. I'm going to court. I'm testifying. I'll be sitting in the front seat in court on the court date.' " Johnson replied, " 'Well, there's going to be a whole lot of dead people then.' " Sutton was killed later that day. Moreover, Sutton had repeatedly told Terrell that he intended to testify regardless of what "Evil" (Johnson's moniker) said.
Evidence Code section 1390, effective January 1, 2011, created a new hearsay exception for out-of-court statements offered against a person who procured the declarant's unavailability by wrongdoing. (Id., subds. (a), (c); see generally People v. Jones (2012) 207 Cal.App.4th 1392, 1394, 1398-1399.) At the 2014 preliminary hearing on the Sutton case, the trial court ruled that such evidence was admissible.
In pertinent part, Evidence Code section 1390 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (Id., subd. (a).)
Terrell's newly disclosed testimony about Johnson's statements, and the fact Evidence Code section 1390 rendered some of Sutton's statements admissible, was a changed circumstance that tended to justify charging Johnson with Sutton's murder. Especially given the fact Leon's jury deadlocked, the People could reasonably believe this additional evidence was highly significant in enabling the prosecution to secure Johnson's conviction. Thus, the availability of the new evidence constituted an "objective change in . . . the state of the evidence which legitimately influenced the charging process" (Bower, supra, 38 Cal.3d at p. 879) that the prosecution could not have reasonably obtained when it exercised its discretion to bring the original charge.
Johnson suggests Terrell's statements are unlikely to prove persuasive because she did not disclose the eavesdropped call years ago, and therefore they do not amount to a significant change in the evidence. But the fact Terrell declined to disclose additional information at the time of the murder is not attributable to some dereliction by the People. Whether the delay in Terrell's disclosure undercuts her credibility is a question for the jury; we cannot say, as a matter of law, that it rendered her testimony insignificant.
(ii) The Jones murder
On May 25, 1994, Jones appeared as a witness in the trial of Charles Lafayette, a Swans gang member, who was charged with murdering Willie Bogan. Jones testified that she saw Lafayette shoot and kill Bogan. A mistrial was declared on June 6, and a second trial date was set. The prosecutor intended to call Jones as a witness at the second trial. Two days later, Johnson, who was incarcerated, was interviewed by law enforcement officers regarding several murders, including the Sutton, Beroit, and Loggins murders. Immediately after the interview, Johnson made a wiretapped telephone call to Reco Wilson, a member of the 89 Family Swans gang, and instructed him to "lock everything down around there." Johnson said, "them three smokers out there? Put a leash around their ass. By any means necessary." "Smoker" is street slang for someone who smokes rock cocaine. Jones was such a person. On June 13, 1994, before the Lafayette retrial began, Wilson shot and killed Jones. Wilson was charged with Jones's murder. On January 15, 1997, Wilson was convicted of first degree murder.
We derive the factual background in part from Division Five's unpublished opinion in People v. Wilson, supra, B111522.
The People argued below that their reinvestigation revealed Johnson had an additional motive to order Jones's killing, supported by newly admissible evidence. As a changed circumstance, the People proffered retired L.A.P.D. Detective Rosemary Sanchez's 2014 preliminary hearing testimony that she interviewed Jones on March 9, 1993; Jones said she witnessed the September 12, 1992 shootout between the Johnson brothers and Sutton and Glass; and "when they [Johnson and his brother Timothy] were getting arrested, that they had threatened to kill the victim, Albert Sutton." Rabbani averred that Sanchez's testimony about Jones's statements had been inadmissible hearsay when Johnson was prosecuted for the Beroit and Loggins murders, but is now admissible under Evidence Code section 1390. Thus, the People theorized the newly admissible evidence would show Jones was killed not only because of her upcoming testimony in the Lafayette retrial, but also because she had observed the shootout between the Johnson brothers and Sutton and Glass, and she overheard Johnson threaten to kill Sutton. The trial court concluded that Jones's connection to the Sutton murder was not "a connection previously explored with any depth or insight," but as the prosecution reinvestigated they observed additional connections that tended to explain Johnson's statement to Wilson in the wiretapped call.
The People further argued below that the newly discovered evidence established Jones may have been killed because she was privy to information incriminating Johnson in the murder of another victim, Maria Morales. Morales lived next door to gang member Jesse "YaYa" Frierson's residence. During Johnson's June 8, 1994 tape recorded phone call to Wilson, Johnson said, "It's an emergency, Dog. The motherfucking homicide police just left from up here, sweating a nigger." After cautioning, "You know these phones are kind of like fucked up, right?" Johnson told Wilson to "open your mind for me, ah. YaYa house next door, all right." "I think, they trying to put some shit on us. You know what I am saying?" The People averred that during their reinvestigation prosecutors discovered a reference in the Morales "murder book" (see People v. Becerra (2016) 63 Cal.4th 511, 515, fn. 8) to an anonymous source, apparently a "smoker," who identified Johnson as one of Morales's killers. As noted, Jones was a "smoker"; she also frequented Morales's neighborhood. The trial court concluded that this evidence revealed an additional and previously unexplored motive to kill Jones, because she was a potential witness in the Morales murder case. We are unconvinced that the new evidence shows a connection between Jones and the Morales murder. The murder book entry the People reference does not state that Jones, or even a "smoker," identified Johnson as being responsible for Morales's murder. Instead it states that an anonymous person stated Sinister (Johnson's brother) and Evil (Johnson) were responsible for the murder; that Jesse "YaYa" Frierson lived on the street; and that "smokers h[u]ng out" at the rear of his house. The People may be aware of information suggesting the anonymous informant was indeed Jones, but that link is not apparent in the materials before us. In light of our conclusion that other changed circumstances rebutted any presumption of vindictiveness, establishing the alleged connection between Jones and the Morales murder is unnecessary.
Sanchez's testimony provided some evidence of changed circumstances tending to rebut the presumption of vindictiveness. Jones's statements that she saw the shootout between the Johnson brothers and Sutton and Glass, and that she heard Johnson threaten to kill Sutton, provided a second motive for Johnson to seek Jones's murder: she would have been able to provide powerfully incriminating evidence against Johnson in regard to the Sutton and Glass crimes. Having an additional witness testify to Johnson's motive for ordering Jones's murder was potentially significant evidence for the prosecution. This is especially true given the somewhat cryptic nature of the wiretapped conversation. When coupled with the changed circumstance that Johnson now stands convicted of no crime, discussed ante, this new evidence rebutted the presumption.
Johnson is correct that this evidence was known to the People well before he was tried on the Beroit/Loggins crimes. The Sanchez interview occurred in 1993, and the wiretaps were recorded in 1994. However, as the high court has noted, "[i]n the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized." (Goodwin, supra, 457 U.S. at p. 381.) Johnson was not previously tried for the Jones murder.
More importantly, Jones's statements to Sanchez were inadmissible hearsay before Evidence Code section 1390 became effective in 2011. Hearsay is an out-of-court statement offered for the truth of its content, and is generally inadmissible unless each level of hearsay falls under an exception. (People v. Sanchez (2016) 63 Cal.4th 665, 674-675; Evid. Code, § 1200, subds. (a), (b).) Jones's statement to Sanchez that she saw the shootout was relevant for the truth of the matter asserted, in that it suggested Johnson was motivated to eliminate her as a witness to that crime. If her statement was untrue - i.e., if she had not actually witnessed the shootout - it would have been irrelevant. Likewise, her statement that the Johnson brothers threatened to kill Sutton was offered for its truth, that is, that they actually made the threat. Both statements were therefore offered for their truth and were admissible only if a hearsay exception applied. The only applicable exception appears to be contained in Evidence Code section 1390, and therefore Jones's statements were not available for the People's use when Johnson was tried on the Beroit/Loggins murders.
The dissent opines that the statement was "always admissible as non-hearsay motive evidence." (Conc. & dis. opn., post, at p. 50.) But contrary to the dissent's assertion, there is no general "motive" exception to the hearsay rule, and People v. Bolden (1996) 44 Cal.App.4th 707, does not so state. There, defendant Bolden was dating Barry, who lived with her godmother, Griffin, in an apartment building. Griffin disapproved of Bolden and told Barry to tell Bolden he was not welcome at their residence. After Barry did so, Bolden threw Molotov cocktails at the apartment. Over a defense hearsay objection, the People introduced Barry's testimony that she had told Bolden that Griffin said he should not come around the residence. Bolden held the statement was not hearsay because it was not offered to prove the truth of the matter asserted, i.e., that Griffin had actually said Bolden was not welcome. "The subject communication was not hearsay because it was not 'offered to prove the truth of the matter stated.' It was offered to prove motive: appellant Bolden, upon hearing the communication, had reason to be angry with Ms. Griffin. [¶] Such communication, offered for such a purpose, is not hearsay." (People v. Bolden, supra, at p. 715, fn. omitted.) Bolden does not stand for the sweeping proposition that all motive evidence is nonhearsay, nor does it show the specific statement at issue here was nonhearsay. In Bolden, the statement was nonhearsay because it would have been relevant even if it was false: even if the godmother had not told Barry that Bolden should stay away, Barry's false statement to Bolden that she had done so would have been relevant to show Bolden's state of mind. But the same is not true here. Jones's statement to the detective was offered to show Johnson's motive to kill Jones, but that motive did not exist unless Jones's statement to the detective was actually true.
(iii) The Mosley murder and Coleman attempted murder
On September 14, 1991, Freddie Jelks, a member of the 89 Family gang, alerted Johnson and others that a party was happening on 97th Street, less than a quarter mile south of 89 Family territory. Jelks, Johnson, and an individual known as "Jelly Rock" drove to the party location in a compact, black car belonging to a "smoker." Jelks testified that the trio was on "a mission," that is, "[w]hen you go out to deal with rivals." Jelks drove; Johnson sat in either the passenger seat or back seat. As they drove down 97th Street they came upon some girls fighting in the street. Numerous partygoers were on either side of the street. Jelks flashed his high beam lights - generally a sign the vehicle is friendly, not an enemy - and the crowd dispersed. As a man approached the car, Johnson fired at him. Jelly Rock and Johnson fired numerous shots as Jelks drove slowly down the street. The shots killed Tyrone Mosley and injured Kim Coleman and another victim.
On December 6, 1994, Jelks gave a statement to police in which he incriminated himself, Johnson, and Jelly Rock in the crimes; he also provided information incriminating Johnson and Allen in the Loggins and Beroit murders. Johnson and Jelks were indicted for the Mosley/Coleman crimes in October 1995. According to the People, Jelks was the main witness against Johnson. Marcellus James and Keith Williams also testified. All three were associates of Johnson. The jury deadlocked, and the trial court declared a mistrial on September 27, 1999. As noted, the case was dismissed pursuant to section 1382 on February 17, 2000. Jelks was killed in July 2006.
Jelks was reportedly also the main witness against Johnson and Allen at trial on the Beroit and Loggins murders.
As a changed circumstance, the People proffered the testimony of Tarone Burnaugh, an eyewitness to the shooting. The People argued Burnaugh's account would bolster the credibility of the original witnesses. They explained they had not discovered Burnaugh earlier because his name had been misspelled as "Tyrone Bernard" on a field identification card. The trial court concluded Burnaugh's statements were unknown before the Beroit/Loggins trial. Further, "if Burnaugh's testimony at trial corroborates the statements, gang member witnesses who might testify for the prosecution on the direction of travel of the car used in the shooting and make, style, and color of that vehicle, his testimony could not be considered minor or insignificant. It certainly appears to be new information that assists the prosecution."
The trial court's conclusion that Burnaugh's testimony is potentially significant is supported by substantial evidence. One of the key witnesses at the original Mosley/Coleman trial was Jelks, who is now deceased. The new testimony of an eyewitness to the crime cannot be considered insignificant under these circumstances. Coupled with the fact Johnson no longer stands convicted of any murder, the discovery of Burnaugh as a witness was a factor legitimately influencing the charging process.
Johnson argues that Burnaugh's testimony is "singularly unimpressive." He complains that Burnaugh was incorrect about the number of people present, the number of shots fired, the time the shooting occurred, and whether anyone else was hit. But at the 2014 preliminary hearing, Burnaugh testified that he saw muzzle flashes emanating from either the front or the back of the shooters' car and could hear the gunshots. He could not see how many people were in the car; it "looked like two" in the front seat, but he was unsure. Describing the gunshots, Burnaugh explained, "I just seen flashes and I kind of ducked like that . . . , looking. And it was just about four- three or four, five shots, something like that. I'm not sure." The fact Burnaugh was imprecise about the number of shots and the number of persons in the vehicle does not demonstrate his testimony was insubstantial or incredible. A witness's uncertainty, or even error, about the number of gunshots or passengers in a vehicle is hardly unique in the annals of criminal jurisprudence and does not serve to destroy a witness's credibility. (See CALCRIM No. 226 ["Do not automatically reject testimony just because of inconsistencies or conflicts. . . . People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently"].)
Nor does Burnaugh's statement that no one else was shot necessarily cast doubt on his account. He testified that after the shooting, "Everybody just started hollering 'Soul got shot'; so I got out [of] the car and went over there, and he was shot up under his shoulder . . . ." When asked whether he stayed until the ambulance arrived, Burnaugh stated: "I'm really not sure because I was kind of hurt, you know. And I remember walking back to my truck, you know, just saying . . . another young guy that got shot." We have no information regarding where the other victims were located, their condition, or whether Burnaugh was in a position to observe them. His statements indicate he was primarily focused on one victim, presumably Mosley, and the fact he was unaware other victims were injured does not render his testimony nugatory.
Johnson's arguments that Burnaugh was incorrect about the time the crimes occurred, and that his "testimony conflicts with the physical evidence with regard to the location of shell casings, direction of travel, and manner in which the shots were fired" fare no better. The only information in the record regarding these matters is in Johnson's counsel's declaration. It states (1) Burnaugh's "testimony at the preliminary hearing conflicts with the physical evidence including the location of shell casings and the manner in which the shots were fired"; and (2) Burnaugh was "wrong about the time of the shooting and how long he had been sitting in his truck drinking beer." These conclusory statements are not accompanied by any supporting evidentiary materials, and the record provides insufficient information to allow us to determine to what extent, if any, Burnaugh's testimony contradicts other evidence or whether any such conflict is significant. But even assuming Burnaugh's testimony conflicts with the physical evidence in some respects, we cannot say his testimony lacks evidentiary value or is, as a matter of law, so flimsy as to be inconsequential.
Johnson also insists Burnaugh's testimony could readily have been discovered soon after the crime, and therefore the evidence does not meet the second prong of the Bower test, that is, the information "could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (Bower, supra, 38 Cal.3d at p. 879.) A field identification card was prepared regarding Burnaugh near the time of the shooting, and he lived across the street from the scene; therefore, Johnson urges, despite the misspelling of his name on the card, the People should have discovered he was a potentially useful witness earlier. The Mosley case has been tried, albeit resulting in a hung jury, and it is to be expected that the People marshaled their evidence at that time. (See Goodwin, supra, 457 U.S. at p. 381 ["once a trial begins - and certainly by the time a conviction has been obtained - it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted"].) However, the fact one of the main witnesses, Jelks, has since been killed is a changed circumstance, unforeseeable in 1997 and 1999 (when the Beroit/Loggins and Mosley/Coleman cases were tried), that renders Burnaugh's testimony more important. At the original trial the People had three witnesses, including Jelks, to support the Mosley case. A party is not required to present all evidence. (See CALCRIM No. 300 ["Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant"].) The People could reasonably conclude it was crucial to seek out additional witnesses due to the void left by Jelks's demise.
4. The gang enhancements on the Beroit/Loggins murders
As noted, on remand the People added to the Beroit and Loggins murders gang enhancements under section 186.22, subdivision (b). If these enhancements potentially increase the punishment to which Johnson is subject should he be reconvicted, or otherwise amount to additional charges, their addition after his successful appeal falls directly within the Blackledge framework. Blackledge and Twiggs clearly stand for the proposition that the addition of previously uncharged enhancements, on the same offenses that were the subject of a successful appeal, raises a presumption of vindictiveness. (Blackledge, supra, 417 U.S. at pp. 22-23, 28; Twiggs, supra, 34 Cal.3d at pp. 363-364, 368-371 [addition of five prior felony enhancements after mistrial raised presumption of vindictiveness].)
In the instant case the trial court correctly found that the presumption of vindictiveness did not arise because the gang allegations cannot result in an increase in punishment or otherwise have a detrimental effect on Johnson. "Under the California Street Terrorism Enforcement and Prevention Act, enacted in 1988 (STEP Act; § 186.20 et seq.), a defendant who commits a felony in furtherance of criminal street gang activity is subject to increased punishment." (People v. Fuentes (2016) 1 Cal.5th 218, 223.) As it read in 1991, former section 186.22 increased punishment for crimes committed for the benefit of, at the direction of, or in association with a criminal street gang in two ways: by adding a one, two, or three-year prison term for most crimes, or by imposing a 15-year minimum parole eligibility period when the underlying crime was punishable by life in prison. (Former § 186.22, subds. (b)(1), (2); see In re Alberto R. (1991) 235 Cal.App.3d 1309, 1317-1318.) Thus, where a defendant is convicted of murder, the 15-year parole eligibility minimum, not an additional term of years, applies. (People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405; People v. Sok (2010) 181 Cal.App.4th 88, 94.) The punishment for first degree murder is either death, imprisonment in the state prison for life without the possibility of parole, or 25 years to life with a minimum parole eligibility term of 25 years. (§ 190, subd. (a); People v. Nunez and Satele (2013) 57 Cal.4th 1, 39, fn. 6; People v. Chiu (2014) 59 Cal.4th 155, 163.) Absent circumstances not present here, a "defendant convicted of second degree murder must serve a sentence of 15 years to life, with a minimum term of 15 years before parole eligibility." (People v. Chiu, supra, at p. 163.) Thus, whether convicted of first degree or second degree murder, at least a 15-year minimum parole eligibility period would apply, and the section 186.22, subdivision (b) allegation would not increase Johnson's sentence.
A true finding on a section 186.22 enhancement may be used to enhance a future sentence on new crimes; "[s]pecifically, if a defendant commits a felony that is gang related under section 186.22(b)(1) and the defendant later reoffends, section 1192.7, subdivision (c)(28), turns that 'prior gang-related felony offense into a strike.' " (People v. Fuentes, supra, 1 Cal.5th at p. 225, fn. omitted.) But that is of no moment here, because murder is already a strike. (§§ 667.5, subd. (c)(1), 1192.7, subd. (c)(1).) And, the People have not attempted to switch to a gang-related theory on remand; as the trial court observed, the case was originally tried on the theory that the murders were gang-related. (See People v. Allen and Johnson, supra, 53 Cal.4th at p. 64.) In the absence of any detriment to Johnson, the presumption does not arise.
The People's theory is that Johnson ordered the murders of Beroit and Loggins. Thus, Johnson is likely to either be convicted of first degree murder or acquitted. Our conclusion that the addition of the gang enhancements on the Beroit/Loggins murders does not give rise to the presumption is based on this premise. If, however, the evidence at retrial results in a verdict of some offense other than murder, such that the gang enhancements increase Johnson's sentence or are otherwise detrimental to him, Johnson may raise his vindictive prosecution claim again.
DISPOSITION
Johnson's petition for a writ of mandate is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
EDMON, P. J. LAVIN, J., Concurring and Dissenting:
On October 27, 2016, this panel published an opinion in Johnson v. Superior Court (2016) 208 Cal.Rptr.3d 807 (Johnson). My colleagues in the majority and I held that Cleamon Demone Johnson raised a presumption of vindictive prosecution because the People charged him with additional crimes and enhancements in apparent response to his successful appeal. We then held that the People met their heavy burden of rebutting the presumption for the Sutton charge because Leon Johnson's testimony was both important and unavailable when the prosecution tried Johnson for the Beroit and Loggins murders. By contrast, for the Jones, Mosley, and Coleman charges, we held that the purported new information was not only known to the People years before the original trial, but the People had also failed to establish how the information legitimately affected their charging decision. For the new gang enhancements to the Beroit and Loggins counts, we remanded for an evidentiary hearing to allow the People to present evidence to rebut the presumption of vindictiveness.
On November 14, 2016, the People petitioned for rehearing. The petition did not challenge Johnson's analysis or conclusions about the law of vindictive prosecution. Instead, the People argued that the evidence was indeed sufficient to rebut the presumption of vindictiveness. On November 21, 2016, the current majority granted rehearing "for purposes of obtaining an answer to the petition for rehearing." Though neither the facts nor the law have changed since we published Johnson last October, the majority has now reanalyzed both stages of the vindictive prosecution inquiry, altered its view of the law, and concluded that the same facts mandate a fundamentally different outcome.
One thing has changed since last October. On November 8, 2016, California voters enacted Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1 (Prop. 66).) Among other things, Prop. 66 amended Penal Code section 3600, which governs imprisonment of condemned inmates. (Prop. 66, § 9.) Where before, condemned inmates had to be housed on death row under strict security protocols, those inmates may now be housed in any California prison—including in cells with non-condemned inmates. (Ibid.) This change in the law heightens Johnson's conclusion that an appearance of vindictive prosecution in a capital case "serves as a potent deterrent to other criminal defendants considering whether an appeal is worth the risk." (Johnson, supra, 208 Cal.Rptr.3d at p. 832.)
The majority acknowledges that under Twiggs v. Superior Court (1983) 34 Cal.3d 360, 363 (Twiggs), a criminal defendant raises a presumption of vindictiveness by demonstrating that the prosecution increased the charges under circumstances that appear vindictive. (Maj. opn., at p. 15.) The majority also concludes that the prosecution can increase the charges by adding charges for new crimes. (Maj. opn., at pp. 16-17.) Certainly, as we held in Johnson, if the old and new charges are truly unrelated, it would be more difficult for a defendant to establish that under the totality of the circumstances, the prosecution's actions appear vindictive. Yet the majority rejects Johnson's totality-of-the-circumstances approach in favor of a rule that the addition of "charges unrelated to the original crimes" can never give rise to an appearance of vindictiveness. (Maj. opn., at p. 20.) In support of that view, it relies exclusively on opinions from courts that reject the appearance-of-vindictiveness test. As such, none of the cited cases have held that adding charges for unrelated crimes can never appear vindictive. And, as Johnson explained in detail, the California Supreme Court has rejected the bright-line approach taken by those courts. (Johnson, supra, 208 Cal.Rptr.3d at pp. 823-830.) The majority nevertheless adopts those courts' legal conclusions without ever explaining why, in its view, the addition of new charges can never appear vindictive. Nor does the majority explain what relatedness means in this context or how related the new and old charges must be to trigger the presumption.
To be sure, while Johnson analyzed the doctrinal approaches of each federal circuit, we did not consider the views of state courts in Illinois, Indiana, or Wyoming. It appears, however, that the Second District Appellate Court in Illinois follows the Seventh Circuit (People v. Kun Lee (Ill.Ct.App. 2011) 954 N.E.2d 338, 342, 345 [citing People v. Hall (Ill.Ct.App. 2000) 726 N.E.2d 213, 219 (relying on 7th Cir.)] and Wyoming follows the 11th Circuit (Mraz v. State (Wyo. 2016) 378 P.3d 280, 289-290). The Indiana appellate case the majority repeatedly cites (Schiro v. State (Ind.Ct.App. 2008) 888 N.E.2d 828, 839-840) relies primarily on its own intuition and appears to contradict the Indiana Supreme Court, which, like the California Supreme Court, eschews bright-line rules in favor of an appearance-of-vindictiveness test. (See Warner v. State (Ind. 2002) 773 N.E.2d 239, 242-244; Cherry v. State (Ind. 1981) 414 N.E.2d 301, 304-306.) Regardless, Schiro involved new charges in a different case for crimes reported after defendant's trial—the very scenario Johnson suggested would not raise an appearance of vindictiveness (Johnson, supra, 208 Cal.Rptr.3d at pp. 829-830)—and Schiro's stated rule does not encompass the very different factual and procedural context we face here. In any event, each of the majority's cited cases—including those from Indiana, Illinois, and Wyoming—involved new crimes charged separately in a new case, an issue Johnson explicitly declined to resolve.
Ultimately, however, the majority opts not to decide whether Johnson raised a presumption of vindictiveness in this case because it concludes that the prosecution rebutted any presumption. How? It seems Johnson's successful appeal "is itself an objective change in circumstances that legitimately influenced the charging decision." (Maj. opn., p. 21.) Though the majority cites no authority to support that proposition, it is the linchpin of the new opinion.
The majority does cite to seven cases dealing with the presumption of vindictiveness, however. None of them support—or even discuss—the notion that a successful appeal can itself rebut the presumption when the prosecution adds new charges in the same case.
For example, the majority hypothesizes that as long as Johnson was on death row, "it was eminently reasonable for the prosecution to conclude it might have been irresponsible to potentially put additional witnesses' lives at risk by trying Johnson on additional crimes ... ." (Maj. opn., at p. 23.) Even assuming such a view could be reasonable as a general matter, the record establishes that the prosecution did not, in fact, believe it. By the time Johnson was convicted of the Beroit and Loggins murders in September 1997, all of the witnesses in the Jones case had already testified at Reco Wilson's trial in January 1997—and many of them had testified a second time at Johnson's trial. Nor did Johnson's death sentences change things. Five months after Johnson was condemned to death in this case, the People recalled him from death row to stand trial in the Mosley/Coleman case. Clearly, neither witness safety nor Johnson's death sentences were dispositive factors—yet the fate of the Jones charge hinges on them.
The majority acknowledges that the Jones statement "was known to the People well before [Johnson] was tried on the Beroit/Loggins crimes." (Maj. opn., at p. 31.) Even under its erroneous view of the hearsay rule—a topic I discuss in more detail below—the statement provided only "some evidence of changed circumstances tending to rebut the presumption of vindictiveness." (Maj. opn., at p. 31; see pp. 47-52, post.) But when that middling evidence is "coupled with the changed circumstance that Johnson now stands convicted of no crime" (maj. opn., at p. 31), the majority concludes, the People are able to meet their " 'heavy burden' of dispelling the appearance of vindictiveness." (Twiggs, supra, 34 Cal.3d at p. 371.)
The majority's about-face as to the Mosley and Coleman charges rests on a similarly novel approach—its application of only half of the Bower test. The majority acknowledges that under Bower, to rebut the presumption of vindictiveness, the prosecution must demonstrate (1) the increase in charge was justified by an objective change in circumstances or in the state of the evidence that legitimately influenced the charging process and (2) the "new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (In re: Bower (1985) 38 Cal.3d 865, 878 (Bower); maj. opn., at pp. 20-21.) The majority also acknowledges Johnson's argument that Burnaugh's testimony—the asserted new evidence—"could readily have been discovered soon after the crime, and therefore the evidence does not meet the second prong of the Bower test ... ." (Maj. opn., at pp. 36-37.)
The majority does not acknowledge either the trial court's factual finding that the People made no effort to locate Burnaugh or the People's repeated concessions of that point, most recently in their reply to the Petition for Rehearing.
Rather than address this problem, however, the majority explains that though Burnaugh's testimony was not important when prosecutors were deciding whether to prosecute Johnson for these crimes in the 1990s, the evidence has since become more important. After all, the "People could reasonably conclude it was crucial to seek out additional witnesses due to the void left by Jelks's demise." (Maj. opn., p. 37.) That is not the test. Under Bower, the prosecution must demonstrate that it "could not" have reasonably discovered the information—not that it saw no reason to try. (Bower, supra, 38 Cal.3d at pp. 878-879.)
As our original opinion was both correct and thorough, I adopt it below—and, where necessary, expand it to address the majority's new approach. (See, e.g. pp. 49-52, post.) Because I continue to believe that the People rebutted the presumption as to the Sutton charge, I concur with the judgment as to count 1. In all other respects, I respectfully dissent.
[Beginning of quote from Johnson, supra, 208 Cal.Rptr.3d 807]
I use empty brackets [ ] to signal deletions from Johnson and double brackets [[ ]] to indicate additions. All other brackets, ellipses, and footnotes are original to Johnson.
FACTUAL BACKGROUND
This case concerns six casualties of the gang wars between the Bloods and the Crips in the early 1990s. Johnson was a high-ranking member of the 89 Family Swans, a small, Bloods-affiliated gang. On August 5, 1991, Johnson told fellow gang member Michael Allen to shoot Peyton Beroit, a member of a rival Crips gang who was getting his car washed in 89 Family territory. Witnesses testified that Allen shot Beroit and Donald Ray Loggins as they sat in a parked car.
The gang is also referred to as 89 Family and 89 Family Bloods.
On September 14, 1991, Freddie Jelks, another 89 Family member, alerted his colleagues that the rival 97 East Coast Crips were having a party nearby. Johnson, Jelks, and another member of their gang drove to the party and shot at the group. Tyrone Mosley was killed. Kim Coleman and Kenneth Davis were injured but survived.
On September 12, 1992, Albert Sutton, a drug dealer and member of the 89 Family Bloods, took his brother to Johnson's house. Sutton's brother was a member of a rival Crips gang. A shootout ensued, and Sutton's brother was shot; he survived but lost the use of one eye. The police arrested three men, including Johnson. Sutton spoke to the police about the shooting, and Johnson was subsequently charged with attempted murder. Sutton planned to testify against Johnson at trial. When it became clear Sutton could not be dissuaded from testifying, Johnson ordered his cousin Leon Johnson (Leon) to kill Sutton. On September 16, 1992, Leon fatally shot Sutton in the back of the head.
In 1994, the LAPD and FBI formed a joint task force to investigate the 89 Family. That spring, Charles Lafayette, a member of an allied gang, was brought to trial for the 1993 murder of Willie Bogan. Nece Jones testified that she saw Lafayette shoot and kill Bogan. On June 6, 1994, the case ended in a mistrial, and a second trial date was set.
Two days later, members of the task force went to Ironwood State Prison, where they spent two hours interviewing Johnson. Detectives told Johnson they had formed a task force to investigate crimes committed by the 89 Family. They asked him "about murders that the LAPD was investigating[,]" and specifically asked about the Sutton killing.
About an hour after detectives left the prison, Johnson called Reco Wilson and explained the task force investigation. He told Wilson to "clean up" and to "lock everything down around there." Johnson continued, "[T]hem three smokers out there? Put a leash around their ass. By any means necessary." "Smoker" is street slang for someone who smokes rock cocaine. Jones was such a person. The prosecution argued Johnson's statement was a command to Wilson to kill Jones—and indeed, Jones was murdered one week later.
The task force investigation bore fruit in the late 1990s when, over the course of four trials, the People prosecuted a series of defendants for the crimes now at issue. In January 1997, Wilson was convicted of murdering Jones and sentenced to life in prison without the possibility of parole; the People's theory was that Wilson killed her on Johnson's orders. In September 1997, Johnson and co-defendant Allen were convicted of murdering Beroit and Loggins and were sentenced to death; the People's theory was that Allen killed them on Johnson's orders. In June 1998, after the jury was unable to reach a verdict, a mistrial was declared in Leon's trial for the Sutton murder; Leon later pled guilty and was sentenced to 18 years to life. The People's theory was that Leon killed Sutton on Johnson's orders. Finally, in September 1999, another hung jury led to a mistrial in Johnson's trial for the drive-by murder of Mosley and attempted murders of Coleman and Davis. In February 2000, the People dismissed those charges under Penal Code section 1382 (failure to proceed within the statutory period).
Our colleagues in Division Five affirmed Wilson's conviction by unpublished opinion in People v. Wilson (Apr. 19, 1999, B111522 [nonpub. opn.]). On our own motion, we take judicial notice of that opinion. (Evid. Code, § 452, subd. (d)(1).)
Although Allen joined the vindictive-prosecution motion as to the new gang enhancements, he is not a party to this writ proceeding.
All undesignated statutory references are to the Penal Code.
[ ]
DISCUSSION
"To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.' [Citation.] In a series of cases beginning with North Carolina v. Pearce ..., the [Supreme] Court has recognized this basic—and itself uncontroversial—principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right." (United States v. Goodwin (1982) 457 U.S. 368, 372 (Goodwin).) Thus, the "due process clauses of the federal and state Constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) forbid the prosecution from taking certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights." (People v. Jurado (2006) 38 Cal.4th 72, 98.) The right to appeal is one such protected right.
The Supreme Court has recognized the importance of protecting a criminal defendant's right to appeal and has taken bold measures to preserve its unfettered exercise. (See, e.g., Douglas v. California (1963) 372 U.S. 353 [state must provide indigents with appointed counsel on their first appeal]; Griffin v. Illinois (1956) 351 U.S. 12 [state must supply trial transcripts to indigent appellants].) The California courts have gone further, holding a " 'defendant's right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.' " (People v. Hanson (2000) 23 Cal.4th 355, 365.)
In light of these principles, the vindictive-prosecution doctrine has developed as a prophylactic rule that "aims to free the defendant of the apprehension that the exercise of a right designed to guarantee that his or her trial is fair will be met with a retaliatory increase in the charge and potential period of incarceration to which he or she is subjected. [Citation.] Regardless of the actual motive of the individual prosecutor, a judicial process which permitted the prosecution to increase the charges against a defendant who successfully exercised a constitutional or procedural right at trial would have a chilling effect upon the assertion of those rights and could undermine the integrity of the entire proceeding." (Bower, supra, 38 Cal.3d at pp. 877-878.)
To be sure, a defendant condemned to death in California cannot forego an appeal out of fear that his success will cause the State to increase the charges against him. (See People v. Massie (1998) 19 Cal.4th 550, 566; § 1239, subd. (b).) However, the vindictive-prosecution doctrine protects not only the defendant in an individual case, but also other defendants. (North Carolina v. Pearce (1969) 395 U.S. 711, 724-725.) Why? Because the imposition of more serious or additional charges in one case creates an apprehension among other defendants that they will be punished for exercising their right to appeal. (Id. at p. 724 [The State cannot " 'put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered.' "]; United States v. DeMarco (9th Cir. 1977) 550 F.2d 1224, 1227 [vindictive-prosecution doctrine designed to prevent chilling exercise of rights by other defendants making similar choice in the future].) This is a particular concern in capital cases, which tend to be highly publicized and rarely reversed. By guarding against the fear of retaliation, the vindictive-prosecution doctrine works to safeguard the rights of the accused and promote the legitimacy of the courts as a check on the power of the State.
Between 1987 and the end of 2015, the California Supreme Court reversed 11 guilt-phase verdicts on direct appeal—including Johnson's and Allen's—and affirmed 582, for a total reversal rate of 1.8% in death penalty cases. (See Cal. Comm'n on the Fair Admin. of Justice (CCFAJ), Report and Recommendations on the Administration of the Death Penalty in California (Jun. 30, 2008), p. 20, available at <http://digitalcommons.law.scu.edu/ncipubs/1>, pp. 120-121 [as of Oct. 25, 2016]; Cal. District Atty. Assn., Prosecutors' Perspective on California's Death Penalty (Mar. 2003), appen. A <http://www.CJLF.org/deathpenalty/DPPaper.pdf> [as of Oct. 25, 2016]; Jones v. Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, appen. A and related footnotes, reversed on other grounds by Jones v. Davis (9th Cir. 2015) 806 F.3d 538.) During the same period, 85 death-row inmates died awaiting execution—70 of them from natural causes. (See Cal. Dept. of Corrections and Rehabilitation, Condemned Inmates Who Have Died Since 1978 (Jun. 16, 2016) <http://www.cdcr.ca.gov/Capital_Punishment/docs/CONDEMNEDINMATESWHOHAVEDIEDSINCE1978.pdf> [as of Oct. 25, 2016].)
To establish a presumption of vindictive prosecution, the defendant must show the State "increased the charges [against him] in apparent response to [his] exercise of a procedural right[.]" (Twiggs, supra, 34 Cal.3d at p. 371.)[ ] Then, the burden shifts to the prosecution to rebut this presumption by dispelling the appearance of vindictiveness. (Ibid.) To do so, the prosecution must show that new evidence or an objective change in circumstances legitimately influenced the charging decision and that they could not reasonably have discovered that information before the first trial. (Bower, supra, 38 Cal.3d at pp. 873, 879.) If the prosecution does not meet this " 'heavy burden,' " the court must dismiss the new charges. (Twiggs, supra, at p. 371; see Bower, supra, at pp. 878-879 [noting that "when the cases discuss the possibility of rebutting a presumption of vindictiveness they refer only to a situation in which the prosecuting authority can show that 'it was impossible to proceed on the more serious charge at the outset ... .' [Citation.]"].)
Here, the People readily acknowledge they added new charges for the Sutton, Jones, Mosley, and Coleman crimes because the California Supreme Court reversed Johnson's convictions for the Beroit and Loggins murders. But they argue that as a matter of law, there can be no presumption of vindictiveness in this case because they did not increase the original charges against Johnson. This argument takes two forms. First, the People argue that the new charges stemmed from different conduct than that at issue in the original case, and the new charges do not amount to an increase unless they concern the same conduct as the original counts. Second, they argue that they have not increased the charges because the new charges do not subject Johnson to additional punishment—he was already facing the ultimate punishment. Therefore, the People contend, Johnson has not made a prima facie showing sufficient to raise a presumption of vindictiveness. The People then argue they rebutted any presumption of vindictive prosecution because "useful statements from witnesses became both legally and practically available" after Johnson's successful appeal.
To determine whether Johnson raised a presumption of vindictiveness, we first consider the limits of prosecutors' charging discretion at various stages in the proceedings. We conclude the presumption of vindictiveness is triggered most easily after a conviction is overturned on appeal and the matter is set for retrial. We next examine the presumption itself. We conclude the People can "increase the charges" against a criminal defendant by charging him with new crimes if they do so under circumstances that would appear vindictive to other criminal defendants. And although we agree with the People that both the potential for increased punishment and the connection between the original and new charges are relevant to whether their actions appear vindictive, we conclude these factors are not dispositive. Based on a review of all the facts, we hold it would appear to other defendants that the People charged Johnson with the additional crimes and enhancements in response to his successful appeal. Therefore, Johnson has presented sufficient evidence to raise a presumption of vindictive prosecution.
Because Johnson met his initial burden, we also examine whether the People have justified the addition of four new charges and six new gang enhancements by some objective change in circumstances or in the state of the evidence that legitimately influenced their charging process. We also examine why the People waited until after Johnson's appeal was granted before filing the new charges and gang enhancements against him. Because the People have neither explained the importance of their new evidence, nor discussed in any meaningful way why the new evidence or changed circumstances legitimately affected their charging decision, we hold they did not rebut the presumption of vindictiveness as to the Jones, Mosley, or Coleman charges. We are satisfied, however, that Leon's testimony is both newly available and sufficiently important to justify the People's reevaluation of their previous decision not to charge Johnson with the Sutton murder.
1. Johnson Raised a Presumption of Vindictiveness.
1.1. Prosecutorial Discretion Before and After Appeal
California and federal cases place great emphasis on when during the criminal proceedings the prosecutor's allegedly vindictive action occurs. (Bower, supra, 38 Cal.3d at pp. 874-877, 879; Goodwin, supra, 457 U.S. at p. 381.) Thus, before determining whether Johnson has met his initial burden, we discuss the nature and scope of prosecutorial discretion and the interplay between vindictive prosecution and the government's charging discretion.
"It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ' "the complex considerations necessary for the effective and efficient administration of law enforcement." ' [Citations.] The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 134; see e.g., Wayte v. United States (1985) 470 U.S. 598, 607 [subject only to constitutional restraints, prosecutors retain broad discretion in deciding whom to prosecute].) This "broad discretion" extends to "selecting the cases to be subject to a capital charge." (People v. Lucas (1995) 12 Cal.4th 415, 477-478.)
Inherent in the prosecution's charging discretion is its power not to bring charges. That decision is itself "deemed [to be] a discretionary charging decision ..." (People v. Mancebo (2002) 27 Cal.4th 735, 749), and courts are generally powerless to compel a prosecutor to proceed in a case he believes does not warrant prosecution (Inmates of Attica Correctional Facility v. Rockefeller (2d Cir. 1973) 477 F.2d 375, 379-380).
Before trial, the State's charging discretion is at its height. "While preparing for trial, new information may be discovered, the significance of possessed information may be realized and the proper extent of prosecution will crystallize." (Barajas v. Superior Court (1983) 149 Cal.App.3d 30, 34.) "In contrast, once a trial begins—and certainly by the time a conviction has been obtained—it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted." (Goodwin, supra, 457 U.S. at p. 381.) "Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision." (Ibid.)
At that point, prosecutors' charging discretion decreases and judicial scrutiny increases. In other words, judicial oversight of the State's charging discretion reaches its apex after a conviction is overturned on appeal and the matter is set for retrial, especially in a capital case. (See Blackledge v. Perry (1974) 417 U.S. 21, 27-28 (Blackledge); Goodwin, supra, 457 U.S. at pp. 376-377; Bower, supra, 38 Cal.3d at p. 877.)
1.2. The People's Proposed Test
We now turn to the People's contention that we should use a two-factor test to assess whether Johnson has presented evidence that they "increased the charges" against him sufficient to raise a presumption of vindictiveness. (See Twiggs, supra, 34 Cal.3d at p. 371.) "[I]n the post-appeal context," the People argue, "a presumption of vindictive prosecution arises if, and only if: [¶] 1. The prosecutor's ability to bring the added charge or allegation was previously barred by double jeopardy, or jeopardy-related principles, such as those found in Kellett v. Superior Court [citations]; [¶] 2. The added charge or allegation increases punishment above what was sought by the prosecutor previously. [Citations.]"
In evaluating this argument, we note that courts have variously described the prosecution's suspect actions as " 'upping the ante' " (Blackledge, supra, 417 U.S. at p. 28), "substituting a more serious charge for the original one" (ibid.), "bringing a more serious charge against [the defendant] prior to the trial de novo" (id. at p. 29), "increas[ing] the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial ..." (People v. Ledesma (2006) 39 Cal.4th 641, 731), bringing "increased or additional charges" (Bower, supra, 38 Cal.3d at p. 872), " ' "upping the ante" ' with more serious charges or a potentially greater sentence" (People v. Puentes, supra, 190 Cal.App.4th at p. 1484, quoting People v. Bracey (1994) 21 Cal.App.4th 1532, 1543), an "increase in charges or a new prosecution" (People v. Valli (2010) 187 Cal.App.4th 786, 802 (Valli)), a "decision to increase the stakes for the accused" (United States v. Griffin (9th Cir. 1980) 617 F.2d 1342, 1347), and an "increase in the severity or number of charges" (Hardwick v. Doolittle (5th Cir. 1977) 558 F.2d 292, 301). We also note that the prosecutor's actual motives are immaterial. (Bower, supra, at pp. 877-879.) Instead, the presumption of vindictiveness "is a legal presumption which arises when the prosecutor increases the criminal charge against a defendant under circumstances [that] are deemed to present a 'reasonable likelihood of vindictiveness.' The presumption is not based on the subjective state of mind of the individual prosecutor and does not imply that he or she individually harbors an improper motive." (Id. at p. 879.)
Accordingly, the People's statements denying any improper motive—and asserting the decision to file additional murder and attempted murder charges was not a reaction or response to Johnson's successful appeal—are not relevant at this stage of the proceedings. For purposes of meeting his initial burden, Johnson does not allege that the People were motivated by actual vindictiveness or spite.
The People's proposed test is quite novel. While they suggest California precedent supports their approach, their cited authorities do not stand for the bright-line rule they advocate. Each case cited to us involves new charges brought in a new case after the original case was over. The defendants in those cases were charged when prosecutorial discretion was highest and the presumption of vindictiveness was not easily triggered. (See Goodwin, supra, 457 U.S. at p. 381.) Contrary to the People's contention, none involves "the post-appeal context[.]" And no case cited to us involves the scenario Johnson faced—new charges added to the old ones after a successful appeal but before retrial, when prosecutors have the least discretion and the presumption applies most strongly.
For example, the People cite Valli for the proposition that "[e]ven where evidence of the newly charged offense was presented as evidence of a consciousness of guilt at the original trial on the original charge, no presumption of vindictiveness is raised by the subsequent prosecution for that different conduct." But Valli is inapplicable here. In Valli, minutes after the defendant was acquitted of murder, the District Attorney charged him with two counts of evading arrest. (Valli, supra, 187 Cal.App.4th at pp. 790-791.) Though substantially similar evidence had been introduced at the earlier murder trial to show consciousness of guilt, the defendant was brought to trial and convicted in the second case. (Id. at p. 790.) Valli addressed two discrete issues—whether joinder was mandatory under Kellett v. Superior Court, and whether the second prosecution was impermissibly vindictive. The court affirmed on both grounds. While the Valli court addressed cross-admissibility of evidence in its Kellett analysis, the issue was irrelevant to the vindictive-prosecution holding, and was not addressed in that part of the opinion. (Id. at pp. 794-802.)
Under Kellett, when "the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett).)
As discussed, a criminal defendant raises a presumption of vindictiveness where he shows (1) "the prosecution has increased the charges" (2) "in apparent response to" (3) "the defendant's exercise of a procedural right[.]" (Twiggs, supra, 34 Cal.3d at p. 371, quoted in Valli, supra, 187 Cal.App.4th at p. 803.) The People's arguments focus on the first factor—whether they increased the charges against Johnson. Valli, on the other hand, focused on the second factor. In Valli, the People increased the charges after the defendant exercised a procedural right—the right to testify—but the People did not increase the charges because the defendant testified. (Valli, supra, at pp. 803-805; see id. at p. 805 [concluding the People's decision "was a response to the acquittal, not to defendant's testifying at trial."].) Accordingly, Valli stands only for the proposition that the filing of "new charges after an acquittal on separate charges do[es] not, without more, give rise to a presumption of vindictiveness." (Id. at p. 805; see People v. Guevara (2004) 121 Cal.App.4th 17, 27 ["cases may not be used for propositions not considered"].)
The People also emphasize Valli's reliance on United States v. Esposito (3d Cir. 1992) 968 F.2d 300, 306 (Esposito). Like Valli, Esposito involved new charges brought in a new case after the defendant was acquitted in the original case. And like Valli, Esposito concluded the new charges were filed in response to an acquittal. Esposito placed particular emphasis on the fact that the second indictment was brought in a second case. (Id., at pp. 303-304 [where "the prosecutor has done nothing to deter the exercise of one's right during the case or proceeding, and the prosecution has come to a natural end, no presumption of vindictiveness applies."], 306.)
The People's reliance on People v. Tirado is also inapt. (People v. Tirado (1984) 151 Cal.App.3d 341 (Tirado).) In Tirado, the defendant pled guilty to robbery and successfully argued for a mitigated sentence. (Id. at pp. 346-347.) In response, the People charged the defendant in a new case with a second robbery. (Ibid.) The defendant argued the prosecution's decision to file the new case was a vindictive response to his exercise of the right to file a statement in mitigation. (Id. at pp. 348-349.) The Tirado court emphasized that case's procedural posture—pretrial plea-bargaining—which the courts have consistently held is not typically subject to a presumption of vindictiveness. (Id. at pp. 350-352.) Indeed, the court spent a full page quoting Goodwin on that point, then concluded it was not required to follow Twiggs, Blackledge, or Pearce, since those cases involved post-trial conduct. (Id. at pp. 349-350.) Tirado thus stands for the proposition that the presumption of vindictiveness does not apply to a prosecutor's pretrial charging decisions. (See People v. Bracey (1994) 21 Cal.App.4th 1532, 1544 [citing Tirado as holding presumption does not apply before jeopardy attaches].) Tirado does not support the rule the People advance in this case.
The People stress Tirado's reliance, in dicta, on United States v. Mallah, a 1974 case from the Second Circuit that predates Twiggs and Blackledge. (United States v. Mallah (2d Cir. 1974) 503 F.2d 971, 988.) Since Mallah primarily concerns the Double Jeopardy Clause, only a handful of courts have cited it for the proposition at issue here—most recently in 1984. (See People v. Lucious (1984) 153 Cal.App.3d 416, 422-423 [prosecutor increased the charges in plea-bargaining context].) To the extent Mallah stands for the People's proposed relatedness rule, we find that approach is irreconcilable with California Supreme Court precedent that is binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see section 1.3, post.)
In support of their proposed test, the People argue that California's mandatory joinder and double-jeopardy rules conclusively determine whether a defendant has raised an initial presumption of vindictiveness. They contend the vindictive-prosecution doctrine applies when the new charges are for "the same conduct" as the original charges but not when "new charges involve different acts or a different course of conduct." The People also refer to "charges arising from separate offenses not part of the same act or course of conduct." With this framing, the People ask us to apply the Kellett rule and consider whether the new charges were sufficiently related to require mandatory joinder in the original case. (See Kellett, supra, 63 Cal.2d at p. 827.) The People suggest that if Kellett did not require them to join the charges in the first instance, it cannot appear vindictive to add them to the case after a successful appeal.
The People also attempt to equate vindictive prosecution with double jeopardy, which protects criminal defendants "from being consecutively charged with violation of the same law or violation of laws so related that conduct prohibited by one statute is necessarily included within conduct prohibited by the other." (People v. Spicer (2015) 235 Cal.App.4th 1359, 1371; see People v. Hanson, supra, 23 Cal.4th at pp. 358-360, 363-367 [appellate reversal precludes more severe punishment after retrial].) In their final brief, the People combine these approaches and contend the relevant inquiry is whether the "prosecutor's ability to bring the added charge or allegation was previously barred by double jeopardy, or jeopardy-related principles, such as those found in Kellett[.]"
California's Double Jeopardy Clause (Cal. Const., art. I, § 15) is considerably broader than its federal counterpart (U.S. Const., 5th Amend.). (People v. Hanson, supra, 23 Cal.4th at pp. 358-360, 363-367.) The People do not explain, however, whether they would like us to apply the federal constitution or the state constitution and instead refer only to "double jeopardy, or jeopardy-related principles[.]"
Certainly, it would appear vindictive for the prosecution, after a defendant's successful appeal, to bring new charges that run afoul of Kellett or the Double Jeopardy Clause—but we disagree with the People that the opposite is also true. That is, while Kellett and double jeopardy may well be relevant to the ultimate burden-shifting analysis, they are not dispositive. First, because the defendant bears the initial burden of proof in a claim of vindictive prosecution, the People's proposed test would effectively require the defendant, at an early stage of the proceedings, to prove the charged crimes are related. Obviously, since the prosecution has the burden of proof at trial, the defendant will not know what specific evidence the People will offer to support the charges. Yet under this rule, defendants would have to address the cross-admissibility of evidence and the extent to which the new and original charges require "separate proofs" simply to meet their initial burden. (See Valli, supra, 187 Cal.App.4th at pp. 797-802.) Such a rule would unfairly burden defendants by requiring them to produce evidence they may not have and to make arguments about the relatedness of criminal charges that may be adverse to their interests. In other words, to raise a vindictive prosecution claim, defendants would have to help the State prosecute them.
Second, although the vindictive-prosecution doctrine stems from the Due Process Clause, which is concerned with "fundamental fairness," the People's approach would require courts to evaluate vindictive-prosecution claims using narrower rules like the statutory rule of mandatory joinder and the Double Jeopardy Clause. (See 2 Modern Constitutional Law (3rd ed.) § 30:1 [discussing due process protections for criminal defendants].) "However, due process has always been understood to encompass more than the sum total of the other related constitutional guarantees. It promises fundamental fairness in the criminal justice process, whether or not another clause in the Constitution also addresses the question before the courts." (Ibid.; see Rochin v. California (1952) 342 U.S. 165, 173 ["Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend 'a sense of justice.' "].)
In short, we can think of no sound reason to limit application of the vindictive-prosecution doctrine to circumstances in which the newly added charges would be barred by Kellett or double jeopardy principles.
1.3. The Presumption of Vindictiveness and Increased Charges
Having rejected the People's attempt to limit the vindictive-prosecution doctrine to circumstances in which the newly added charges would be barred by Kellett or double jeopardy principles, we turn to their contention that as long as the new "charges involve different acts or a different course of conduct," they have not increased the charges against the defendant. We have not found any published California case addressing the specific question and unique facts before us: Can a criminal defendant raise a presumption of vindictiveness where the "increased charges" are for different conduct than the original charges, but the People have had most of the evidence underlying the newly added charges for years and only added them to the defendant's pending retrial following a successful appeal?
To evaluate the People's contention notwithstanding the lack of California authority to support it, we turn to the federal courts for guidance. In doing so, we must reconcile the prosecutor's broad discretion to file charges when there is probable cause to believe that someone has committed a crime with our duty to protect a criminal defendant's unfettered right to appeal. As we shall explain, we hold that the People "increase the charges" against a criminal defendant when they bring new charges against him under circumstances that would appear vindictive to other criminal defendants—and those new charges may involve different facts, crimes, or victims.
1.3.1. Appearance of vindictiveness versus realistic likelihood of actual vindictiveness
The presumption of vindictiveness "is a legal presumption which arises when the prosecutor increases the criminal charge against a defendant under circumstances [that] are deemed to present a 'reasonable likelihood of vindictiveness.' " (Bower, supra, 38 Cal.3d at p. 879.) But what circumstances should be "deemed to present" such a likelihood and thereby warrant application of the presumption? To answer that question, the federal courts have adopted a variety of competing secondary tests. While these tests can appear ad-hoc, they can be grouped into two broad categories. One set of courts has emphasized the need to avoid an appearance of vindictiveness that may deter future defendants from exercising their rights. A second set of courts has emphasized the need to protect individual defendants from actual retaliatory conduct.
Courts in the First, Third, Fifth, Sixth, and Ninth Circuits belong to the first group and apply a presumption of vindictiveness when the prosecution's actions are likely to have a chilling effect on other defendants. (See, e.g., United States v. DeMarco, supra, 550 F.2d at p. 1227; United States v. Krezdorn (5th Cir. 1983) 718 F.2d 1360, 1364-1365 (en banc); United States v. Andrews (6th Cir. 1980) 633 F.2d 449, 453-454 (en banc) [examining the prosecutor's actions and stake in deterrence to determine whether a reasonable person would find a realistic likelihood of vindictiveness]; United States v. Schoolcraft (3d Cir. 1989) 879 F.2d 64, 68 ["The defendant bears the initial burden of proof in a vindictive prosecution claim and is required to establish the appearance of vindictiveness."]; United States v. Young (1st Cir. 1992) 955 F.2d 99, 108 [following Krezdorn]; Lovett v. Butterworth (1st Cir. 1979) 610 F.2d 1002, 1005-1006 [citing DeMarco and Andrews, discussing prophylactic nature of the doctrine, and emphasizing irrelevance of prosecutors' subjective motivations].) Because those courts are most concerned with the appearance of vindictiveness, they do not typically consider the subjective motivations driving the State's actions. For example, in the Fifth Circuit, courts assess whether a defendant has presented evidence sufficient to establish a presumption of vindictiveness by examining the prosecutor's actions in the context of the entire proceedings and asking whether "any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals[.]" (United States v. Krezdorn, supra, 718 F.2d at pp. 1364-1365.)
Courts in the Second, Fourth, Seventh, Eighth, Tenth, and District of Columbia Circuits, on the other hand, belong to the second group, and require defendants to prove a reasonable likelihood of actual vindictiveness. (See, e.g., United States v. King (2d Cir. 1997) 126 F.3d 394, 397; United States v. Wilson (4th Cir. 2001) 262 F.3d 305, 314-315; United States v. Falcon (7th Cir. 2003) 347 F.3d 1000, 1004 [to obtain evidentiary hearing on vindictive prosecution, defendant must offer sufficient evidence to raise a reasonable doubt that the government acted properly]; United States v. Chappell (8th Cir. 2015) 779 F.3d 872, 879-881 [" 'a defendant may, in rare instances, rely upon a presumption of vindictiveness,' (citation)" if he establishes a reasonable likelihood of actual vindictiveness]; United States v. Raymer (10th Cir. 1991) 941 F.2d 1031, 1042 [court must determine whether " 'there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or punitive animus towards the defendant because he exercised his specific legal right.' "]; United States v. Safavian (D.C. Cir. 2011) 649 F.3d 688, 692 [to establish a presumption of vindictiveness, defendant must show prosecutor's actions were "more likely than not" attributable to actual vindictiveness].) Those courts therefore focus on whether the prosecutor harbored genuine animus toward the defendant. For example, to establish a presumption of vindictiveness in the Fourth Circuit, the defendant "must show that the circumstances 'pose a realistic likelihood of [actual] vindictiveness.' " (United States v. Wilson, supra, 262 F.3d at pp. 314-315.) This is a "rigorous" standard that requires defendants to overcome "a significant barrier." (Ibid.) That is, the showing must be "sufficiently strong to overcome the presumption of prosecutorial regularity." (Ibid.)
Finally, courts in the 11th Circuit take a hybrid approach. They apply a presumption of vindictiveness when the State substitutes more serious charges for the original charges concerning the same conduct, but require the defendant to prove actual vindictiveness when the prosecution adds new and separate charges. (United States v. Jones (11th Cir. 2010) 601 F.3d 1247, 1260-1261 & fn. 5; United States v. Kendrick (11th Cir. 2012) 682 F.3d 974, 981-982.)
Like other courts in the first group, the Ninth Circuit has focused on the concern expressed in Blackledge and Pearce for alleviating defendants' apprehension that the government will retaliate against them if they exercise their legal rights. Thus, that court has concluded that the mere appearance of vindictive prosecutorial behavior offends due process. (United States v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367, 1369 ["Pearce and Blackledge seek to reduce or eliminate apprehension on the part of an accused that he may be subjected to retaliatory or vindictive punishment by the prosecution only for attempting to exercise his procedural rights. Hence, the mere appearance of vindictiveness is enough to place the burden on the prosecution."].) As the court explained in United States v. DeMarco, "[i]t is irrelevant that a particular defendant exercises his statutory rights, despite his fear of vindictiveness and despite the lack of vindictiveness in fact in subsequent proceedings instituted by the prosecutor. The prophylactic rule is designed not only to relieve the defendant who has asserted his right from bearing the burden from 'upping the ante' but also to prevent chilling the exercise of such rights by other defendants who must make their choices under similar circumstances in the future." (United States v. DeMarco, supra, 550 F.2d at p. 1227; see United States v. Griffin, supra, 617 F.2d at p. 1347 ["It is now well established that the mere appearance of vindictiveness may give rise to a presumption of a vindictive motive sufficient to establish a due process violation."].)
In United States v. Jenkins, the Ninth Circuit relied on this reasoning when it rejected the premise that the vindictive- prosecution doctrine applies only when the old and new charges arise from the same nucleus of operative fact. (United States v. Jenkins (9th Cir. 2007) 504 F.3d 694, 700-701.) In that case, the defendant was "apprehended twice for attempting to cross the U.S.-Mexico border while driving a vehicle containing undocumented aliens. Both times, Jenkins stated that she had been paid to drive the car across the border. She was not charged with any crime. Almost three months later, Jenkins was apprehended while attempting to cross the border as a passenger in a vehicle containing marijuana. She stated that she had been paid to drive the car, which she believed contained illegal aliens, across the border. Jenkins was charged with importation of marijuana. At trial, she testified in her own defense and maintained that she believed the vehicle in which she had been a passenger contained illegal aliens because she had been paid on two previous occasions to smuggle aliens. While the jury was deliberating, the government filed alien smuggling charges against Jenkins [in a separate case] in connection with her first two border apprehensions. [¶] The district court found that the prosecutor's conduct created the appearance of vindictive prosecution because the alien smuggling charges were brought only after Jenkins exercised her right to testify in her own defense at her separate marijuana smuggling trial." (Id. at p. 697.) The Ninth Circuit affirmed. The court concluded that because the government exercised its discretion not to prosecute Jenkins for alien smuggling until "she presented her theory of defense at the marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness." (Ibid.)
Like the federal circuits in the first group, California courts are primarily concerned with the prophylactic nature of the vindictive-prosecution doctrine. Accordingly, California courts have adopted the approach favored by these courts—an appearance-of-vindictiveness test. For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' " (Twiggs, supra, 34 Cal.3d at p. 374; see id. at pp. 369-370, 371, 374.) Likewise, in Bower, the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " (Bower, supra, 38 Cal.3d at p. 878; id. at pp. 873-874, 877 [actual vindictiveness is irrelevant]; see also People v. Puentes, supra, 190 Cal.App.4th at p. 1486 [the People's actions gave "the appearance that defendant's successful appeal changed the People's mind about what charges were 'in furtherance of justice.' "]; Tirado, supra, 151 Cal.App.3d at p. 350 ["The rationale supporting the Blackledge-Pearce-Twiggs rule is to reduce or eliminate the defendant's apprehension he may be subjected to unilateral retaliation or vindictive punishment for attempting to exercise his procedural rights."]; Barajas v. Superior Court, supra, 149 Cal.App.3d at pp. 33-34 [noting the holding in Twiggs "was made without regard for whether actual retaliatory motivation by the prosecutor existed on the rationale that the threat of such action deprives a defendant of due process."]; In re David B. (1977) 68 Cal.App.3d 931, 934-936 [discussing chilling effect]; People v. Welch (1993) 5 Cal.4th 228, 239-240 (conc. opn. of Arabian and Kennard, JJ.) ["any appearance of vindictiveness in this context is subject to scrutiny; and reviewing courts should not be reluctant to fashion appropriate remedies when warranted."].)
Even if California courts and the Ninth Circuit had not adopted an appearance of vindictiveness approach, however, we would not require a defendant seeking to raise a presumption of vindictiveness to demonstrate a reasonable likelihood that the prosecutor harbored actual animus toward him. First, such a requirement provides inadequate due process protection by straying too far from Blackledge's concerns about the chilling effect on other criminal defendants. (Blackledge, supra, 417 U.S. at p. 28 ["The rationale of our judgment in the Pearce case ... was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation ... .' "].)
Second, an emphasis on actual vindictiveness places courts in the untenable position of policing prosecutors' subjective motivations. If defendants must prove a realistic likelihood of actual retaliatory motivation, a court must explicitly find prosecutorial bad faith before it can dismiss the improper charges. As explained in United States v. Andrews, supra, 633 F.2d at pp. 454-455, under such a test, "a trial judge would have the Hobson's choice of either not barring the extra charge or of saying that a prosecutor acted wrongly. In some cases, a trial judge would, in effect, be calling a prosecutor a liar where the prosecutor claimed inadvertence and the judge ruled against him. We do not think that such confrontations before the judiciary and the executive branch are desirable."
We therefore hold that one way the People "increase the charges" is by bringing new charges against a defendant under circumstances that appear vindictive. As we discuss below, whether the circumstances appear vindictive is assessed by reviewing all the facts—even if the new charges stem from different events, conduct, or victims than those in the original case. (See United States v. Krezdorn, supra, 718 F.2d at pp. 1364-1365.) Our holding accounts for the concerns emphasized by the California Supreme Court and allows the courts to dismiss charges in appropriate situations without the need to find the prosecutor acted in bad faith.
1.3.2. Relatedness and the Totality of the Circumstances
Having decided the People "increase the charges" when they bring new charges against a defendant under circumstances that would appear vindictive to other criminal defendants, we next examine whether the new charges must relate to the same criminal conduct at issue in the original trial. Since it is the appearance of vindictiveness that triggers the presumption, the People's argument comes down to this: It can never appear vindictive for the prosecution to add new counts, for decades-old crimes, to a defendant's pending case when that defendant is retried after exercising his right to appeal. Because the appearance-of-vindictiveness standard is incompatible with such a bright-line rule, we reject the People's proposal. Instead, under the totality-of-the-circumstances approach favored by the Ninth Circuit and the California Supreme Court, we hold that the addition of new charges based on different facts, conduct, and victims does not preclude a finding of vindictiveness.
Federal courts that apply an appearance-of-vindictiveness test typically perform a fact-intensive analysis based on the totality of the circumstances. For example, the Fifth Circuit has explained that the "judicial history of decisions involving judicial and prosecutorial vindictiveness is now clear enough to teach that it is a mistake to measure cases in this area of the law against fixed gauges. The proper solution is not to be found by classifying prosecutorial decisions as changing or adding charges, as amending decisions already made, as covering the same basic conduct or spree of activity, or as being made pre- or post-trial. Nor is it determinative whether the procedural matrix is appeal and error or trial de novo. It is also unnecessary to seek to strike the delicate balance between the rights of defendant and prosecutor. The surer solution lies in applying a more familiar, less exact test.
"If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor's actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created." (United States v. Krezdorn, supra, 718 F.2d at pp. 1364-1365.)
The Ninth Circuit uses a similarly fact-intensive approach, which the California Supreme Court has implicitly adopted. (Twiggs, supra, 34 Cal.3d at p. 371 ["The conclusion that a presumption of vindictiveness arose in this case is consistent with the rule developed in cases in the Ninth Circuit Court of Appeals."].) For example, Twiggs relies on United States v. Groves, in which the Ninth Circuit concluded that the fact the government brought "two separate and distinct cases" involving "different crimes relating to completely separate fact situations" was not "controlling in any case" or "dispositive on the question of vindictiveness" (United States v. Groves (9th Cir. 1978) 571 F.2d 450, 453-454 (Groves); see Twiggs, supra, at p. 371.) Instead, Groves emphasized the totality of the circumstances—namely what the government knew, when they knew it, and when they decided to bring the new charges. (Groves, supra, at pp. 453-454.) Twiggs also relied on United States v. Ruesga-Martinez, in which the Ninth Circuit emphasized the appearance of vindictiveness and held "that when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive." (United States v. Ruesga-Martinez, supra, 534 F.2d at p. 1369, emphasis added; see Twiggs, at p. 371.)
In United States v. Martinez, the Ninth Circuit appeared to adopt a bright-line rule that if "the second charge is unrelated to the first, the presumption does not arise." (United States v. Martinez (9th Cir. 1986) 785 F.2d 663, 669 (Martinez).) In support of that statement, the court cited to United States v. Robison (9th Cir. 1981) 644 F.2d 1270, 1272 (Robison). But Robison held just the opposite. It concluded that the fact the "instant prosecution arose from events separate and distinct from those on which the earlier prosecutions were based" was neither dispositive nor essential. (Robison, at p. 1272.) The Ninth Circuit noted this discrepancy in Jenkins, and explained that the defendants in both Robison and Martinez had "failed to demonstrate any connection between the exercise of procedural rights in prior prosecutions and the federal prosecution challenged" in those cases. (Jenkins, supra, 504 F.3d at p. 701.) In Robison, the second prosecution was initiated by a different sovereign; in Martinez, the new charges were initiated by a different sovereign after an acquittal. Thus, Jenkins explained, "we do not read Martinez as holding that a presumption of vindictiveness can never arise when the second charge is unrelated to the first." (Jenkins, supra, at p. 701.) As Robison acknowledged, it is merely one of the factors. (See Jenkins, at p. 701 ["The government itself recognizes that it brought the alien smuggling charges only because Jenkins admitted to them during the marijuana importation trial. Therefore, to the extent that we consider the relatedness of the charges important to our analysis, this factor does not foreclose application of the doctrine of vindictive prosecution."].)
Indeed, Twiggs considered the totality of the circumstances throughout its burden-shifting analysis. (Twiggs, supra, 34 Cal.3d at pp. 371-372, 374.) In Twiggs, the trial court declared a mistrial after the jury was unable to reach a verdict. Rather than accept a plea bargain, the defendant exercised his right to a retrial. In response, the prosecutor amended the information to allege five additional prior-felony convictions. (Id. at p. 368.) The government argued the newly-charged status enhancements were not vindictive because they were "wholly unrelated to the underlying charges[.]" (Id. at p. 376 [summarizing government's argument].) The Court rejected that argument and concluded the circumstances raised a presumption of vindictiveness. Prosecutors knew about the defendant's prior convictions before the first trial, yet made no effort to verify them; the government developed no new facts at trial that could have legitimately influenced their charging decision; and the "prosecution showed no interest in charging the additional prior convictions until the defendant insisted on a retrial[.]" (Id. at p. 372.) These circumstances, the Court concluded, "plainly gave rise to a presumption of vindictiveness." (Ibid.; see also Barajas v. Superior Court, supra, 149 Cal.App.3d at pp. 34-35 [evaluating claim under totality of circumstances].)
To be sure, some courts decline to apply the vindictive-prosecution doctrine when the prosecution brings new charges in response to an acquittal. (See, e.g., Esposito, supra, 968 F.2d at p. 306; Valli, supra, 187 Cal.App.4th at pp. 803-805.) The People's proposal is considerably broader than those holdings, however. Their rule would allow the prosecution to respond to a defendant's successful appeal by charging him, in the just-reversed case, with an unlimited number of new counts and enhancements, as long as the new charges are not currently barred by Kellett, were not previously barred by double jeopardy, and do not increase the length of his potential sentence. (See sections 1.2, ante and 1.4, post.)
We also acknowledge that some federal courts in the second group—courts that attempt to discern the likelihood that a given prosecutor acted out of actual animus toward a given defendant—appear to use a bright-line rule analogous to the one the People urge us to adopt. For example, in Williams v. Bartow, the Seventh Circuit affirmed a Wisconsin state court ruling that the presumption of vindictiveness applies only when the prosecution increases the charges against a defendant for the same conduct. (Williams v. Bartow (7th Cir. 2007) 481 F.3d 492.) The Wisconsin court acknowledged the "distinct possibility" that a defendant would be chilled from exercising his appellate rights if he believed a successful appeal would result in a second trial on more serious charges, but concluded that concern was not present when the prosecutor brings charges based on different conduct. (Id. at p. 501.) The court reasoned that the appeal does not create the opportunity to charge the defendant with additional crimes; the prosecutor may proceed on the separate charges whether or not the defendant appeals the original conviction. (Ibid.) In the end, Williams v. Bartow does not expressly hold that the presumption of vindictiveness cannot apply when the State brings new charges for different conduct; it does conclude, however, that when the Wisconsin state court reached that conclusion, it did not unreasonably apply established federal precedent. (Id. at p. 503 ["We cannot conclude that Blackledge and Thigpen [v. Roberts (1984) 468 U.S. 27] clearly establish a different rule than that applied by the Wisconsin court."]; see Williams v. Taylor (2000) 529 U.S. 362, 404-406 [federal review of state habeas claims].)
We decline to follow those federal courts that have categorically declined to apply the vindictive-prosecution rule to situations in which the defendant is charged, post-appeal, with different criminal conduct, as opposed to a heightened charge for the same conduct. Instead, in light of California's and the Ninth Circuit's fact-intensive approach based on the totality of the circumstances, we hold that the prosecution's challenged action must be viewed in context, taking into account when the crimes underlying the new charges were committed, when the defendant invoked a statutory or constitutional right, the nature of the protected right, when the prosecution added the new charges, and the nature, number, and severity of the new charges. Our approach is especially necessary in this case given the importance of a defendant's right to appeal, the high-profile nature of capital cases, and the need to guard against other defendants' fears of retaliation. [ ]
In reaching our conclusion, we do not mean to suggest that any new charge following a successful appeal would raise a presumption of vindictiveness. For example, it would be difficult for a defendant to meet his initial burden if the new charge is for a crime committed in prison during or after his appeal. And we do not suggest—because the issue is not before us—that a presumption of vindictiveness would arise where the prosecution files new charges in a new case after a defendant is acquitted. (See Valli, supra, 187 Cal.App.4th at p. 805 [the filing of "new charges after an acquittal on separate charges do[es] not, without more," raise a presumption of vindictiveness, even where the old and new charges are related]; Esposito, supra, 968 F.2d at pp. 303-304 [no presumption of vindictiveness where prosecutor brings new charges in a second case in response to an acquittal].) Nor is the presumption the end of the analysis. A legal presumption may, of course, be rebutted.
1.3.3. The Presumption of Vindictiveness and Increased Punishment
In the second part of their proposed test, the People argue that Johnson did not meet his initial burden because he "faces no increased punishment" since "he has always faced the death penalty." They insist "[n]o California case has found a presumption of vindictive prosecution where prosecutors have sought the exact same punishment at all stages." This claim amounts to a contention that because the State cannot execute Johnson more than once, five capital charges are not more serious than two capital charges.
In support of this argument, the People cite People v. Ledesma, which they describe as a case in which "the California Supreme Court rejected application of the presumption of vindictiveness where the defendant faced the death penalty at the initial trial and at the retrial following appeal." (See People v. Ledesma, supra, 39 Cal.4th at p. 731 (Ledesma).) The People's description is correct in a narrow, factual sense, but Ledesma does not stand for the broader rule the People imply. The Ledesma Court rejected the defendant's argument on forfeiture grounds. (Id. at p. 730 ["Defendant did not preserve the issue because he did not make any motion in the trial court based upon a theory of vindictive prosecution."].) And while it is true that in Ledesma, "the prosecution sought the same sentence upon retrial that it did at the initial trial" (id. at p. 731), it also brought the same charges upon retrial that it did at the initial trial. (Id. at pp. 655-656; see People v. Ledesma (1987) 43 Cal.3d 171, 176 [original appeal].) Unlike in this case, the prosecution in Ledesma did not add additional charges or enhancement allegations following the defendant's successful appeal.
The People's argument amounts to a claim that the prosecution cannot increase the charges in a death penalty case. First, the California Supreme Court has repeatedly held that the vindictive-prosecution doctrine applies to capital cases and non-capital cases alike. (See, e.g., People v. Jurado, supra, 38 Cal.4th at p. 98; People v. Lucas, supra, 12 Cal.4th at pp. 477-478; People v. Maury (2003) 30 Cal.4th 342, 438-439.) A contrary conclusion, of course, would provide less due process protection to capital defendants than to non-capital defendants. (See California v. Ramos (1983) 463 U.S. 992, 998-999 [recognizing that capital cases require a greater degree of judicial scrutiny than other criminal cases]; Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death (1980) 53 S.Cal. L.Rev. 1143.)
The People put a finer point on this view at oral argument, where they contended the vindictive-prosecution doctrine does not apply to death penalty cases because "practically speaking, you cannot give someone more than one sentence of death. 'Cause you only have one life to give."
Second, the potential for increased punishment is not the only circumstance relevant to the appearance of vindictiveness. The number and seriousness of the new charges also matter. (See, e.g., Bower, supra, 38 Cal.3d at p. 872 [presumption raised where prosecution brings "increased or additional charges"].) Even if increased punishment were dispositive, however, the concurrent punishment sought in this case is still punishment. (In re Wright (1967) 65 Cal.2d 650, 654-655; see People v. Alford (2010) 180 Cal.App.4th 1463 [discussing § 654].) Likewise, consecutive sentences of life without the possibility of parole are "longer" than single sentences of life without parole even though a defendant cannot begin to serve the second term until his death. (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433-1435 [concluding Three Strikes law requires court to double LWOP base term]; § 669 [LWOP sentences "may be imposed to run consecutively with one another"].) The State can therefore increase a criminal defendant's punishment without increasing the length of the sentence he actually serves—but in any event, as the court noted below, because attempted murder is not a capital offense, the Coleman count does subject Johnson to a lengthier sentence.
Contrary to the People's claim, therefore, five death sentences are indeed "more serious" than two death sentences, notwithstanding the State can carry out that sentence only once.
1.4. Johnson met his initial burden.
We turn to the specific facts before us and view them in context of the entire proceedings. Here, after 14 years on death row, Cleamon Johnson won his appeal and was granted a new trial. But rather than returning to the status quo ante and receiving the fair trial that eluded him in 1997, Johnson found himself charged with three more capital murders, one attempted murder, and six new gang enhancements. All of the charges—old and new alike—were brought in the same pleading and would be resolved in the same trial, where they would result in one final judgment. The People have had most of the evidence underlying the new counts and enhancements for years as a result of a single investigation conducted decades ago. Indeed, they tested the evidence in four back-to-back trials in the late 1990s, where their theory was that Johnson ordered each killing. In every case, the People exercised their discretion not to charge Johnson with these crimes—initially or after a mistrial—until he won his appeal. In fact, the People admit they added the new charges and enhancements because Johnson won his appeal, and because upon retrial "there is a potential that there will be no justice in any sense." In light of these facts and admissions, we agree with the trial court that Johnson presented sufficient evidence that the prosecution "increased the charges in apparent response to" (Twiggs, supra, 34 Cal.3d at p. 371) his successful appeal "under circumstances [that] are deemed to present a 'reasonable likelihood of vindictiveness.' " (Bower, supra, 38 Cal.3d at p. 879.)
This is particularly so because we are especially concerned about prosecutorial actions that may appear vindictive to—and have a chilling effect on—other criminal defendants. As we have discussed in detail above, capital cases are high profile and rarely reversed. Increasing the charges in a case like this one serves as a potent deterrent to other criminal defendants considering whether an appeal is worth the risk.
2. The People have rebutted the presumption only as to the Sutton murder.
The only remaining issue is whether the People have met their " 'heavy burden' of dispelling the appearance of vindictiveness." (Twiggs, supra, 34 Cal.3d at p. 371.) To rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence that legitimately influenced the charging process and (2) the "new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (Bower, supra, 38 Cal.3d at p. 879.)
The test is an objective one. (Goodwin, supra, 457 U.S. at p. 374.) Accordingly, "this legal presumption cannot be rebutted by the prosecutor's declaration that he or she was motivated by a reassessment of the evidence against the defendant rather than by any desire to punish the exercise of a protected right." (Bower, supra, 38 Cal.3d at p. 879.) "In this regard, the trial court should consider the prosecutor's explanation in light of the total circumstances of the case in deciding whether the presumption has been rebutted." (Twiggs, supra, 34 Cal.3d at p. 374.)
The showing is the same on review. While a "petitioner normally bears the burden of proving the facts upon which he bases his claim for relief, [citation] where, as here, the possibility that increased or additional charges violated due process is at issue, he need only demonstrate facts giving rise to a presumption of vindictiveness at which time, even [in writ proceedings], the burden shifts to the People to rebut the presumption." (Bower, supra, 38 Cal.3d at p. 872.)
Here, the People's writ return devotes fewer than three pages, exclusive of exhibits, to rebutting the presumption of vindictiveness. For the most part, the People have not summarized the facts of any newly-charged crime or explain the context or importance of any new evidence or changed circumstance. "By making only general denials of the allegations of the petition, alleging only conclusionary statements of ultimate facts, the People have indicated a willingness to rely on the record of proceedings in the superior court and the documentary evidence submitted by petitioner as exhibits to his petition." (Bower, supra, 38 Cal.3d at p. 873; see Thigpen v. Roberts, supra, 468 U.S. at p. 33, fn. 6 ["The State had ample opportunity below to attempt to rebut [the presumption] but did not do so. Its only argument has been that Blackledge should not apply."].) As we shall explain, with the notable exception of the Sutton killing, the justifications offered by the People do not suffice to dispel the appearance of vindictiveness created by the timing and scope of the new charges.
2.1. The People have not rebutted the presumption as to Jones, Mosley, and Coleman.
As a preliminary matter, we address the People's assertion that it was not previously worth the expense to prosecute Johnson for the newly-added charges because he was already on death row. They argue: "When a defendant is already on death row, expending more resources to prosecute a defendant for other charges, charges that would add nothing to that punishment, does not make practical sense. Even considering the inherent justice that flows from guilty verdicts in the form of truth[,] validation and accountability ... alone do not necessarily overcome the consideration of expending large amounts of resources to deem someone again to be deserving of death, who is already facing a death sentence." Once the original convictions were reversed and he was no longer condemned to death, however, "Johnson's change in status alone justified additional investigation and the subsequent decision to charge him with the murders of additional victims." That is, the People acknowledge they added the additional charges because Johnson's convictions were reversed, and contend the successful appeal itself is sufficient to establish changed circumstances.
This echoes their argument below, in which the People asserted they "were under no obligation to re-investigate these additional murders after Johnson was convicted of the Loggins and Beroit murders and sentenced to death. Indeed, pursuing these cases would have put witnesses' lives at risk, expended limited resources, and could have resulted in no greater punishment than Johnson had already received on the Loggins and Beroit murders." In short, "any further prosecution following Johnson's conviction and death sentence for the Loggins and Beroit murders would have been futile, and unnecessarily placed witnesses' lives in jeopardy."
As we did above (see section 1.3.3 [ ], ante), we reject the implication that the vindictive-prosecution doctrine does not apply to capital cases. We also reject the People's circular argument that a successful appeal itself establishes changed circumstances that allow them to add new charges; such an argument ignores the importance of the right to appeal. We express no opinion, however, about whether an acquittal in the Beroit-Loggins case would constitute a sufficient changed circumstance.
Next, the People argue the increase in charges was justified both by the discovery of new evidence and by a change in the law that rendered old evidence newly admissible. They note the court below "was familiar with the facts of the murder charges because the trial court also sat as the magistrate during the preliminary hearing."
The members of this panel, however, did not attend the preliminary hearing—and the People tell us little about the facts of any charged offense. As a result, it is difficult to discern whether the proffered evidence matters. Put another way, even assuming the People have established the existence of new, previously unavailable information for each new charge, they do not explain whether the new evidence "legitimately influenced the charging process." (Bower, supra, 38 Cal.3d at p. 879.) The People's failure to explain the context or importance of the new evidence involving the Jones, Mosley, and Coleman crimes is fatal. [ ]
For example, Freddie Jelks was the chief prosecution witness at both of Johnson's trials. In the Mosley/Coleman case, Jelks testified for approximately 215 transcript pages over three days. Yet we have received only 18 non-consecutive pages—about eight percent—of that testimony. Nor does the record include transcripts or other evidence from Wilson's trial; the facts we have been able to glean about the Jones murder come from our colleagues' 1999 opinion in Wilson's appeal.
In any event, most of the People's purported new evidence does not support a legitimate change in the exercise of prosecutorial discretion, or explain why they could not have reasonably discovered the information before Johnson's first trial.[ ] In reaching these conclusions, we discuss below the facts and circumstances underlying the Mosley, Coleman, Jones, and Sutton charges based on the limited record before us.
2.1.1. Mosley Murder and Coleman Attempted Murder—1991
On September 14, 1991, Jelks alerted members of 89 Family that the 97 East Coast Crips were having a party on 97th Street, less than a quarter-mile south of 89 Family territory. Johnson, Jelks, and an individual known only as Jelly Rock got into a car belonging to a local crack addict and set out on a gang mission. Jelks drove; Johnson sat either in the passenger seat or the back seat. As the car approached the party, they encountered two girls fighting in the street. Jelks slowed down and flashed his headlights. Without warning, Johnson and Jelly Rock began shooting at the group; the Crips fired back. Tyrone Mosley was killed. Kim Coleman and Kenneth Davis were injured but survived.
Jelks explained that a mission "is when you go out and deal with rivals."
On December 6, 1994, Jelks gave a statement to police in which he incriminated himself and Johnson in the Mosley murder and incriminated Johnson and Allen in the 1991 murders of Loggins and Beroit. On September 2, 1997, with the help of Jelks's testimony, Johnson and Allen were convicted of the Loggins and Beroit murders. On September 30, 1997, the jury returned a verdict of death, which the court imposed. Four months later, Johnson was transported back to Los Angeles from death row to stand trial for the Mosley murder and the Coleman attempted murder. The People planned to seek another death sentence. However, the jury was unable to reach a verdict, the court declared a mistrial, and the case was ultimately dismissed.
According to Johnson, the jury was split 8-4 on two counts and 6-6 on one count, but there is no indication as to the nature of the split. According to the People, the split was 9-3 in favor of guilt.
The People contend the "newly available statement of Tarone Burnaugh, an eyewitness to the shooting, corroborated the testimony of other witnesses regarding the description of the car involved in the shooting and direction of travel." Johnson contends, and the People do not dispute, that Burnaugh's account conflicts with both physical and ballistics evidence—particularly the location of shell casings and direction of travel. Burnaugh was also mistaken about the number of people present, the number of shots fired, and the number of victims. [ ] If Burnaugh's testimony is important for some other reason—such as to resolve a particularly critical or disputed issue—the People do not disclose it. We thus conclude the People have not established that the Burnaugh testimony "legitimately influenced the charging process" for counts 5 and 6. (Bower, supra, 38 Cal.3d at p. 879.)
Even assuming the evidence is both new and important, however, the People have not satisfied the second prong of the Bower test—they have not explained why "the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (Bower, supra, 38 Cal.3d at p. 879.) Burnaugh lived with his mother directly across the street from the shooting. Detectives interviewed him on September 14, 1991, the night of the shooting. They noted his address, phone number, height, weight, and date of birth—all of which are apparently accurate. However, the People contend his statement "could not reasonably have been discovered" sooner because detectives misspelled Burnaugh's name. The People do not account for any previous efforts to locate Burnaugh, explain why the misspelling frustrated those efforts, or explain why Burnaugh's address, phone number, height, weight, and date of birth were insufficient to find him. In short, the People simply do not explain why the prosecution could not reasonably have discovered this corroborating evidence at some point during the many years that elapsed between their first conversation with Burnaugh in 1991 and Johnson's trial for the Beroit and Loggins murders in 1997. We thus conclude the People have not rebutted the presumption of vindictiveness for counts 5 and 6.
2.2. Jones Murder—1994
"On May 25, 1994, Georgia Jones appeared as a witness in the trial of Charles Lafayette, who was charged with murdering Willie Bogan. Lafayette is a member of the 84 Swans. Jones testified that she saw Lafayette shoot and kill Bogan. On June 6, [1994,] a mistrial was declared. A second trial was set. The prosecutor intended to call Jones as a witness at this trial. On June 13, 1994, before the retrial began, Jones was shot and killed on the corner of Wadsworth and 87th Place." (People v. Wilson, supra, (Apr. 19, 1999, B111522), at p. 2.) Reco Wilson was convicted of the murder in January 1997, and Division Five affirmed by unpublished opinion. (Ibid.)
At Wilson's trial in January 1997, the People presented ample evidence of Johnson's role in Jones's murder. In September 1997, the prosecution introduced that evidence again in the penalty phase of the Loggins/Beroit trial. Central to both cases was a recorded phone call from Johnson to Wilson in which Johnson appeared to solicit Wilson to murder Jones. The People now claim their post-appeal reinvestigation uncovered new evidence—a statement Jones made to law enforcement in 1993—that placed existing evidence in an important new light and provided "evidence of Johnson's motive to kill Jones."
On March 9, 1993, over a year before she was killed, Jones told Detective Rosemary Sanchez that she had seen Johnson, Johnson's brother Timothy, and Sutton engaged in a shootout. Johnson was arrested for the shooting, and as police were taking him into custody, Jones heard him threaten to kill Sutton—a statement the arresting officers presumably heard as well. The People argue this information "placed in context a wiretap intercepted call between Reco Wilson and Johnson. Reco Wilson was convicted of killing Jones[;] with the new contextual information, the call provides evidence of Johnson's motive to kill Jones."
There is no evidence Jones witnessed Sutton's murder.
Since the phone call was played for juries in Johnson's trial and Wilson's trial—and since Sanchez testified for the prosecution in both cases—the evidence is certainly not new. Without conceding the point, the People contend the statement is newly admissible under Evidence Code section 1390 and thus provides "new contextual evidence ... of Johnson's motive to kill Jones."
The majority and I agree on this much, at least. (See maj. opn., at p. 31.)
[[To demonstrate that evidence is newly admissible, the People must prove two things—first, that the evidence was inadmissible in the 1990s when they opted not to try Johnson for the Jones murder and second, that the evidence is admissible now. The People have failed to establish either one.]]
[[First, the People have not demonstrated that Jones's statement to Sanchez is currently admissible. Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)]]
[["The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' " (People v. Carter (2005) 36 Cal.4th 1114, 1166; Evid. Code, § 600, subd. (b) ["An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action."].) When the relevance of evidence depends on the existence of some other preliminary fact, the "proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact." (Evid. Code, § 403, subd. (a)(1); id., subd. (a)(4) [rule applies if the preliminary or "proffered evidence is of ... conduct of a particular person and the preliminary fact is whether that person ... so conducted himself."].)]]
[[Without more, Jones's statement to Sanchez that she heard Johnson threaten Sutton does not support an inference that Johnson had a motive to kill Jones. The evidence becomes relevant only if either (1) Johnson knew that Jones saw the shooting and heard the threat, or (2) Johnson knew Jones spoke to the police about the threat. Because the statement's relevance depends on Johnson's knowledge, Evidence Code section 403 requires the People to establish that knowledge. (Evid. Code, § 403, subds. (a)(1), (a)(4); see, e.g., People v. Brady (2005) 129 Cal.App.4th 1314, 1332-1334 [court properly excluded evidence of pilot's alcohol consumption as an alternate theory of plane crash where there was no evidence the alcohol affected pilot's flying ability or judgment].) Here, the People have not even hinted that they can prove the necessary preliminary facts. Accordingly, regardless of the existence of a new hearsay exception, the People have not demonstrated that the "newly-admissible" evidence is actually admissible.]]
[[Second, to the extent the statement is relevant, the People have not proven that it was inadmissible in the 1990s. Despite the People's—and the majority's—insistence to the contrary, it]] was always admissible as non-hearsay motive evidence. (People v. Bolden (1996) 44 Cal.App.4th 707, 714-715 [statement offered to prove motive is not hearsay].)]
[[Hearsay is an out-of-court statement offered for the truth of the matter asserted in the statement. (Evid. Code, § 1200, subd. (a).) "Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)" (People v. Sanchez (2016) 63 Cal.4th 665, 674; Evid. Code, § 1202 [exception required for each level of hearsay].) On the other hand, an out-of-court "statement 'offered for some purpose other than to prove the fact stated therein is not hearsay.' [Citations.]" (Sanchez, at p. 674.)]]
[[Here, both Johnson's threat to Sutton and Jones's statement to Sanchez were statements made by someone "other than by a witness while testifying at the hearing" (Evid. Code, § 1200, subd. (a))—in other words, out-of-court statements. Because the prosecution was not offering them to prove the truth of the facts being asserted by the speaker, however, the statements were not hearsay. (People v. Davis (2005) 36 Cal.4th 510, 535-536; People v. Cleveland (2004) 32 Cal.4th 704, 727-728 [motive evidence not offered for its truth].)]]
[[Plainly, Johnson's statement that he planned to kill Sutton was not offered for its truth—i.e., that he actually planned to kill Sutton; it was offered to show Johnson had a motive to kill Jones. The majority concludes Jones's statement to Sanchez, on the other hand, was offered for its truth because if Jones's "statement was untrue—i.e., if she had not actually witnessed the shootout—it would have been irrelevant. Likewise, her statement that the Johnson brothers threatened to kill Sutton was offered for its truth, that is, that they actually made the threat." (Maj. opn., at p. 32; id. at p. 33, fn. 17 ["Jones's statement to the detective was offered to show Johnson's motive to kill Jones, but that motive did not exist unless Jones's statement to the detective was actually true."].)]]
(See. e.g., People v. Nealy (1991) 228 Cal.App.3d 447, 451 [testimony that, while searching apartment containing cocaine, officers engaged in three phone conversations with people seeking to buy a "dove" of cocaine was admissible non-hearsay as it was not being considered for the truth of the matter asserted; it was not the People's theory that defendant was an ornithologist or bird salesman].)
[[The majority offers no explanation for its apparent belief that Johnson only wanted to kill honest informants, and I am not persuaded. If Johnson learned that Jones implicated him in the Sutton murder, he would have had a motive to kill her regardless of whether Jones lied to Sanchez or told the truth. As the statement's truth is immaterial, the evidence is not hearsay. Because it is not hearsay, the new hearsay exception is irrelevant to its admissibility. In short, the People have not established that the evidence is either new, admissible, or newly-admissible.]]
[[Nor have the People established that it legitimately influenced their decision to charge Johnson with the killing. Johnson called Wilson one week after Jones testified against Lafayette—and only two days after the jury failed to reach a verdict in that case. But Sutton was murdered nearly two years earlier, and Jones talked to law enforcement six months after that—about 15 months before Johnson called Wilson. To the extent the call can now be construed as evidence Johnson also wanted Jones killed because she once heard him threaten Sutton, the statement provides exceedingly weak support for that argument. ]]
Accordingly, the People have not dispelled the presumption of vindictiveness as to count 2.
2.3. The People rebutted the presumption as to Sutton.
On September 12, 1992, Albert Sutton, a drug dealer and member of the 89 Family, took his brother to Johnson's house. Sutton's brother, Danny Foster Glass, was a member of a rival Crips gang. Johnson was furious. He said, "I can't believe you brought this fool to our hood. He's a Crip." Gunfire erupted and Glass was shot; he survived but lost the use of one eye. Nece Jones and Officer Miller both witnessed the shootout. The police took three men into custody, including Johnson and his brother Timothy, an 89 Family member known as "Sinister." As police arrested them, Johnson and Sinister threatened to kill Sutton. Officers interviewed Sutton about the shooting, and Johnson was subsequently charged in case No. TA020639 with attempted murder. Sutton, angry that Johnson shot his brother, planned to testify against him.
In the days after the shooting, Sutton received two threatening phone calls, which he later discussed with his sister, Anita Terrell. Terrell overheard one call directly, and heard Sutton's side of the other call. Sutton explained to Terrell, "[t]his fool Evil wants me not to testify, but I'm going to testify because he shot my brother." When it became clear Sutton could not be dissuaded from testifying, Johnson ordered his cousin Leon to kill Sutton. Sutton was killed on September 16, 1992.
Leon confided his role in the killing to another gang member, who told the police. When police interviewed Leon in 1995, he admitted killing Sutton on Johnson's orders. He repeated the claim before he was sentenced in 1998 and at his parole hearing in 2008. Thus, as of 2008—three years before Johnson's convictions were overturned—Leon had directly implicated him at least three times. Other witnesses confirmed Leon's account. For example, Johnson's brother Earl Ray Johnson ("Silent") told an anonymous police source that Johnson told Leon to kill Sutton because Sutton was going to testify against Johnson. Leon's story did not change when police re-interviewed him in 2012, though his memory had faded in the 20 years since the shooting.
The statements of the corroborating witnesses appear in a one-page excerpt of a police report from 1995. The record does not reveal whether these witnesses testified at Leon's trial, whether Leon testified in his own defense, or what other corroborating evidence the People may have presented.
As Leon stood by his story throughout the years, his credibility increased. As recently as 2008, Leon continued to tell parole boards that Johnson had ordered him to kill Sutton—a position that conflicted with his attempts to gain release because an inmate's acceptance of responsibility and development of insight are "significant factors" in determining parole suitability. (In re Shaputis (2011) 53 Cal.4th 192, 218; Cal. Code Regs., tit. 15, § 2402, subd. (d)(3).) Put another way, by continuing to shift responsibility to Johnson while in prison, Leon increased the length of his incarceration—and his value to the prosecution.
While Leon's enhanced credibility is helpful to the prosecution's argument, the critical factor in the Sutton case is timing. Johnson was tried for the Beroit and Loggins murders in 1997. Leon was not brought to trial for Sutton's murder until 1998. Throughout 1997, Leon retained a Fifth Amendment privilege against self-incrimination, and the Confrontation Clause barred the prosecution's use of his out-of-court statements against Johnson. Under Crawford v. Washington, testimonial hearsay is inadmissible unless the defendant has an opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 53.) Leon's statements were made during a police interrogation, and were thus testimonial. (Id. at p. 68, fn. 10.) Since, under the Fifth Amendment, Leon could not be compelled to testify, Johnson did not have an opportunity to cross-examine him. Following his 1998 guilty plea, Leon could no longer assert his Fifth Amendment privilege—and could be compelled to testify about the Sutton murder. By then, however, Johnson had been convicted and sentenced to death.
By the time the People decided to charge Johnson with Sutton's murder in 2014, they had key evidence that was not available to them when they brought Johnson to trial in the original case: Leon's guilty plea and his subsequent statements that Johnson ordered him to kill Sutton—statements that may have cost him an early release. The availability of the shooter's testimony—testimony that was not available to prosecutors when they tried Johnson in 1997—constitutes an "objective change in ... the state of the evidence which legitimately influenced the charging process[.]" (Bower, supra, 38 Cal.3d at p. 879.) Given the timing of the charges and Leon's role in the Sutton murder, we are also satisfied that the prosecution could not have reasonably obtained this evidence when "it exercised its discretion to bring the original charge." (Ibid.)
3. Gang Allegations
Finally, we turn to the newly added gang allegations tethered to counts 3 and 4 for the Loggins and Beroit murders. We note that the People showed no interest in charging Johnson with any gang allegation for these crimes until his convictions were overturned on appeal. Below, the People stated that they "decided to add the gang allegation because these are quintessential gang crimes and gang evidence had been introduced at all four original trials" without explaining why they failed to do so when Johnson was first tried.
After reviewing the supplemental briefing on this issue, since the gang allegations amount to "an increase in charges" (Valli, supra, 187 Cal.App.4th at p. 802; see People v. Fuentes (2016) 1 Cal.5th 218, 223 ["section 186.22, subdivision (b) increases the punishment for the underlying conviction in several different ways" and can "negatively impact defendant in future criminal cases as well. ... [E]ven if the punishment is struck, an enhancement finding could impact defendant in a future case."]), we conclude that the addition of gang allegations for counts 3 and 4 following Johnson's successful appeal raises a presumption of vindictiveness under Twiggs and Bower. However, since the court below did not address whether the People rebutted the appearance of vindictiveness, we will direct it to hold a hearing to determine whether the People can rebut the presumption as to the gang allegations for these counts. If the People do not meet the heavy burden necessary to dispel the appearance of vindictiveness, the court should dismiss the gang allegations.
[End of quotation from Johnson, supra, 208 Cal.Rptr.3d 807]
CONCLUSION
As we held before in Johnson, I would direct the trial court to: (1) vacate the portion of its order denying Johnson's motion to dismiss for vindictive prosecution as to the Jones, Mosley, and Coleman crimes; (2) enter a new order dismissing counts 2, 5, 6 and their related allegations; and (3) hold a hearing to allow the People the opportunity to rebut the presumption of vindictiveness raised by the newly charged gang allegations attached to counts 3 and 4.
LAVIN, J.