Filed 10/27/16
                 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE


CLEAMON DEMONE                       B266421
JOHNSON,
                                     (Los Angeles County
        Petitioner;                  Super. Ct. No. BA424006)
        v.
                                     DEATH PENALTY CASE
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
        Respondent;

THE PEOPLE,

        Real Party in Interest.


      ORIGINAL PROCEEDINGS in mandate. Sam O. Ohta,
Judge. Petition granted in part, denied in part, and remanded
with directions.
      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.
            _______________________________________
                       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




                                 2
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,


1    The gang is also referred to as 89 Family and 89 Family Bloods.




                                   3
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




                                 4
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 [reversal]; § 1262 [reversal deemed order for



2     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).)
3     Although Allen joined the vindictive-prosecution motion as to
the new gang enhancements, he is not a party to this writ proceeding.
4     All undesignated statutory references are to the Penal Code.




                                    5
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 (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))




                                   6
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



5       The complaint alleged the gang enhancements under
section 186.22, subdivisions (b)(1)(C) (10-year enhancement) and (b)(5)
(15-year minimum before parole). Subdivision (b)(1)(C) did not exist at
the time of the last murder. (Prop. 21, § 4, as approved by voters,
Primary Elec. (Mar. 7, 2000) [adding subd. (b)(1)(C)].) The gang
enhancement in the subsequent information was alleged under
section 186.22, subdivision (b). We asked for clarification by letter
brief, and it appears Johnson has been charged with the enhancement
under subdivision (b)(2) as it existed in 1991. (Stats. 1989, ch. 930,
§ 5.1; see People v. Valenti (2016) 243 Cal.App.4th 1140, 1172–1175
[discussing Ex Post Facto Clause].)




                                     7
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 (Twiggs) [petitioning for writ of
prohibition/mandate proper to obtain pretrial review of denial of
motion to dismiss for vindictive prosecution].)

   ISSUES PRESENTED AND STANDARD OF REVIEW

       In this writ proceeding, we are presented with the following
issues: Does a defendant in a capital murder case raise
a presumption of vindictiveness when, after his convictions are
reversed and remanded for retrial but before that retrial can take
place, the People add additional charges to the case pending
against him? If so, have the People met their heavy burden of
rebutting the presumption by showing that the newly added
charges are justified by a change in circumstances or new
evidence that legitimately influenced the charging process, and
that they could not reasonably have discovered the new
information before the defendant’s first trial?
       Because these issues present a mixed question of law and
fact implicating an important constitutional right, our review is
de novo. (People v. Cromer (2001) 24 Cal.4th 889, 893–903; In re
Bower (1985) 38 Cal.3d 865, 872–873, 879 (Bower).) De novo
review requires a two-part inquiry. First, we “determin[e] the
historical facts[,]” which “will rarely be in dispute. When they
are [in dispute, we] must, of course, apply a deferential standard
of review to the trial court’s factual findings.” (People v. Cromer,
supra, at p. 900.) Next, we apply “an objective, constitutionally
based legal test to the historical facts.” (Ibid.) This is “a legal
question given that the facts as found must support the
conclusion reached. (Cf. People v. Superior Court (Day) (1985)




                                   8
174 Cal.App.3d 1008, 1015 [noting distinction between
a magistrate’s factual findings and a magistrate’s legal
conclusion regarding the sufficiency of the evidence presented].)”
(People v. Puentes (2010) 190 Cal.App.4th 1480, 1488.)
      We hold Johnson established a presumption of
vindictiveness because the People charged him with additional
crimes and enhancements in apparent response to his successful
appeal. We also hold the People did not meet their heavy burden
of rebutting the presumption of vindictive prosecution as to the
Jones, Mosley, and Coleman charges because they did not
establish how the purported new information or change in
circumstances legitimately affected their charging decision. We
conclude, however, that the People dispelled the presumption as
to the Sutton murder because Leon’s testimony was unavailable
in 1997 when the prosecution tried Johnson for the Beroit and
Loggins murders.

                         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




                                  9
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.)




                                  10
      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.6 By guarding



6      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.




                                    11
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.
       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.)7 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


(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/CONDEMNEDINMATESWHOHAVEDIED
SINCE1978.pdf> [as of Oct. 25, 2016].)
7      As we explain in detail in sections 1.2 and 1.3 post, the courts
have framed the burden-shifting analysis in a variety of ways. Most
recently, the California Supreme Court held that a presumption of
vindictiveness “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.) After examining the competing approaches, we
conclude that in California, circumstances “are deemed to present”
such a reasonable likelihood if they would appear vindictive to other
criminal defendants. Put another way, if the prosecution increases the
charges under circumstances that would appear vindictive to other
criminal defendants, it has necessarily done so “under circumstances
[that] are deemed to present a ‘reasonable likelihood of
vindictiveness.’ ” (Ibid.) We therefore use the phrases interchangeably
to describe the showing a defendant must make to raise a presumption
of vindictive prosecution.




                                    12
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.




                                  13
       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




                                  14
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 Established 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




                                   15
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.)




                                   16
      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




                                  17
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.)8
       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.


8      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.




                                   18
       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.9 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.)
       As discussed, a criminal defendant raises a presumption of
vindictiveness where he shows (1) “the prosecution has increased



9      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).)




                                    19
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”].)10
       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


10     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.)




                                    20
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.11




11     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.)




                                     21
       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].)12 In their final


12     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[.]”




                                     22
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[.]”
       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




                                  23
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




                                  24
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.




                                  25
       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.)




                                  26
       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.)




                                  27
       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




                                  28
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




                                  29
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




                                   30
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 that 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




                                  31
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




                                   32
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.




                                  33
(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.)13


13      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




                                    34
       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


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.”].)




                                     35
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




                                 36
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




                                 37
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. While we agree with the People
that the degree of overlap between the old and new charges is
relevant to whether the prosecution can successfully rebut the
presumption of vindictiveness, it is not dispositive at this stage,
and a criminal defendant need not prove relatedness to raise the
presumption in the first instance.
       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




                                  38
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.




                                   39
       The People’s argument amounts to a claim that the
prosecution cannot increase the charges in a death penalty case.14
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.) 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


14     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.”




                                    40
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




                                  41
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.)




                                  42
       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




                                   43
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




                                  44
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 1.4, 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.15 As a result, it is difficult to discern


15     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




                                    45
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 in light of Johnson’s contention that the new information is
unimportant. (See People v. Duvall (1995) 9 Cal.4th. 464, 480,
483 [where the respondent files “a return that did not dispute the
material facts alleged by the petitioner[,] . . . the respondent is
deemed to have admitted those material factual allegations that
they fail to dispute”].)
       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.16 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.



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.
16    We take no position on whether evidence supporting counts 2, 5
and 6 is otherwise admissible in the retrial of the Beroit and Loggins
counts. And, because the issue has not been raised, we express no
opinion as to whether there are circumstances in which the People
could prosecute Johnson for these crimes in a separately filed case.




                                    46
      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.17 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.
      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




17     Jelks explained that a mission “is when you go out and deal with
rivals.”




                                    47
court declared a mistrial,18 and the case was ultimately
dismissed.
       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. Because the
People do not “allege additional facts that contradict those
allegations[,]” they are “deemed to have admitted” them. (People
v. Duvall, supra, 9 Cal.4th at pp. 480, 483.) 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.”



18     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.




                                    48
(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.)




                                 49
      At Wilson’s trial in January 1997, the People presented
ample evidence of Johnson’s role in Jones’ 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.19
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.”
      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


19    There is no evidence Jones witnessed the murder itself.




                                   50
Jones.” But that evidence code section is irrelevant. The
statement 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].) 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.




                                   51
       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.20 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.
       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.



20      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.




                                    52
         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




                                  53
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.




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                         DISPOSITION

       The petition for writ of mandate is granted in part.
A peremptory writ of mandate shall issue directing 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 (Pen. Code,
§ 186.22) attached to counts 3 and 4. The stay of proceedings
issued on October 15, 2015 is vacated.


              CERTIFIED FOR PUBLICATION



                                                LAVIN, J.
WE CONCUR:




      EDMON, P. J.




      ALDRICH, J.




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