Prosecution failed to rebut presumption of vindictiveness for adding additional murder charges after defendant successfully appealed his convictions. In 1997 Johnson was convicted of two murders with special circumstances and sentenced to death. In 2011 his judgment was reversed and the case was remanded for a new trial. Prior to retrial, the prosecution added four new murder charges, an attempted murder charge, and gang enhancements. Johnson’s motion to dismiss for vindictive prosecution was denied and he petitioned for writ of mandate. Held: Granted in part. The due process clauses of the state and federal Constitutions prohibit the state from punishing a person for exercising a statutory or constitutional right. The vindictive prosecution doctrine has developed as a prophylactic rule to assure a defendant that exercising his right to an appeal will not be met with a retaliatory increase in charges and/or punishment. To establish a presumption of vindictive prosecution, a defendant must show that the state increased the charges against him in response to his exercise of a procedural right. The burden then shifts to the prosecution to rebut this presumption, by showing that new evidence or an objective change in circumstances legitimately influenced the charging decision and this information could not have been discovered before the first trial. Here, the prosecution charged Johnson with additional crimes and enhancements in response to his successful appeal. The fact that the crimes were distinct from those initially charged is not dispositive on the question of vindictiveness. The addition of charges in this case has the appearance of vindictiveness that may deter future defendants from exercising their right to appeal. The prosecution failed to rebut the presumption of vindictiveness as to three of the four new murder charges and the attempted murder charge, requiring dismissal of those counts.

The issue of the additional gang allegations is remanded for an evidentiary hearing. The prosecution’s addition of gang allegations before retrial raises the presumption of vindictiveness. However, the trial court failed to address whether the prosecution had rebutted this presumption. The matter was remanded for a hearing to determine whether the prosecution can rebut the presumption of vindictiveness as to these allegations.

The prosecution rebutted the presumption of vindictiveness as to one of the new charges of murder. As to the newly charged murder of Albert Sutton, a potential prosecution witness, the prosecution rebutted the presumption of vindictiveness because it was in possession of new evidence that was unavailable before Johnson’s initial trial.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266421.PDF