People v. Superior Court of L. A. Cnty.

4 Cal.App.5th 937

THE PEOPLE, Real Party in Interest.

CLEAMON DEMONE JOHNSON, Petitioner,

v.THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent

No. B266421.

Court of Appeals of California, Second District, Division Three.

October 27, 2016.

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.

OPINION

LAVIN, J. —

INTRODUCTION

In 1997, Cleamon Demone Johnson was convicted of the first degree murders of Peyton Beroit and Donald Ray Loggins, with multiple-murder special-circumstance findings as to both. The jury returned a verdict of death, which the trial court imposed. In 2011, the California Supreme Court reversed Johnson's convictions and remanded for retrial. Before the second trial, the People investigated other murder and attempted murder cases from the early 1990s in which Johnson had been a suspect. Ultimately, they added four new charges to the case pending against him — for the capital murders of Albert Sutton, Georgia Denise ("Nece") Jones, and Tyrone Mosley, and the attempted murder of Kim Coleman — all of which occurred in the early 1990s, and for two of which the People had previously tried and failed to convict Johnson. Where Johnson had been convicted of two capital-murder charges before his successful appeal, he now faces five capital-murder charges and an attempted murder charge — plus newly added gang enhancements — in the same case. Johnson challenged the filing of the new charges in a motion to dismiss for vindictive prosecution. Although the trial court agreed that Johnson made a prima facie showing sufficient to raise a presumption of vindictiveness, it determined the People rebutted the presumption, and denied the motion to dismiss. Johnson petitioned this court for writ of mandate/prohibition and we issued an order to show cause.

We hold that the court erred in denying Johnson's motion to dismiss the new charges concerning Jones, Mosley, and Coleman. We therefore grant Johnson's petition as to those crimes and direct the court to dismiss counts 2, 5, 6, and their related enhancements. We conclude that the court properly denied Johnson's motion to dismiss the Sutton charges, however, and deny Johnson's petition as to that crime. As for the gang enhancements added to the Beroit and Loggins counts, we remand for an evidentiary hearing to allow the People to present evidence to rebut the presumption of vindictiveness.

FACTUAL AND PROCEDURAL 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.¹ 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.

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 Los Angeles Police Department (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.² 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.³ 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).⁴

In 2011, after an automatic appeal, the California Supreme Court reversed Johnson's and Allen's guilt and penalty judgments for the Beroit and Loggins murders, and remanded for retrial of both defendants. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 79 [133 Cal.Rptr.3d 548, 264 P.3d 336] [reversal]; § 1262 [reversal deemed order for new trial].) The People immediately began investigating other cases from the early 1990s in which Johnson had been a suspect. On March 2, 2012, the People notified Johnson of their intent to offer evidence of the Sutton, Jones, Mosley, and Coleman shootings at retrial. (Evid. Code, § 1101, subd. (b).) At some point, Johnson offered to plead guilty to the Loggins and Beroit murders, but the People declined to extend an offer of life in prison without the possibility of parole.

In April 2014, Johnson moved to dismiss the still-pending Beroit and Loggins charges for outrageous government misconduct. The day the motion was set to be heard, the People moved to dismiss the original indictment in the Beroit/Loggins case (People v. Demone (Super. Ct. L.A. County, 2014, No. BA105846)) and re-file the charges by criminal complaint under a new case number (No. BA424006). The court granted the motion over defense objection, and on April 25, 2014, the People filed a new complaint alleging five counts of capital murder (Loggins, Beroit, Sutton, Jones, and Mosley) and one count of attempted murder (Coleman). In addition to the special circumstances, the People also alleged various firearm and great bodily injury enhancements to four of the counts, and alleged a gang enhancement to all counts.

Johnson was held to answer on the new charges, and the information in the new case (No. BA424006) was filed on May 13, 2014. The new information charged Johnson with five counts of premeditated murder (§ 187, subd. (a)) for the deaths of Sutton (count 1), Jones (count 2), Loggins (count 3), Beroit (count 4), and Mosley (count 5), with multiple-murder special-circumstance (§ 190.2, subd. (a)(3)) and street gang (§ 186.22, subd. (b)) allegations for each count.⁵ As to count 4, the information also alleged Johnson had furnished a firearm for the purpose of aiding or abetting a felony (§ 12022.4). As to count 5, the information alleged Johnson had personally used a firearm to commit the offense (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). The information also charged Johnson with one count of attempted murder of Coleman (§§ 664, 187, subd. (a); count 6) and alleged great bodily injury (§ 12022.7, subd. (a)), personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and gang (§ 186.22, subd. (b)) enhancements for that count.

Johnson argued the new charges constituted vindictive prosecution and moved to dismiss them. After a contested hearing, the court concluded Johnson made a prima facie showing sufficient to raise a presumption of vindictiveness. Additional briefing followed. After a second hearing, the court found the People had rebutted the presumption of vindictiveness and denied Johnson's motion to dismiss.

Johnson filed a timely petition for writ of mandate/prohibition in this court, and we issued an order to show cause. We have original jurisdiction. (Cal. Const., art. VI, § 10 [original jurisdiction in mandate proceedings]; Code Civ. Proc., § 1085, subd. (a) [mandate]; Twiggs v. Superior Court (1983) 34 Cal.3d 360 [194 Cal.Rptr. 152, 667 P.2d 1165] (Twiggs) [petitioning for writ of prohibition/mandate proper to obtain pretrial review of denial of motion to dismiss for vindictive prosecution]...