Johnson v. Superior Court of State, B266421

CourtCalifornia Court of Appeals
Docket NumberB266421
Decision Date28 September 2017


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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.


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.

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))1 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.2 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.

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].)3

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 murdersof 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.4 After a preliminary hearing, an information containing the charges was filed on April 9, 2015.

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 processrights. 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.5 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...

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