PEOPLE v. JOHNSON

Filed 8/31/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

GLEN MAURICE JOHNSON,

Defendant and Appellant.

F048042

(Super. Ct. No. BF100124A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

PROCEDURAL HISTORY

On March 19, 2003, a jury, inter alia, found Glen Maurice Johnson not guilty of the first degree murder of Lamar Rufus but guilty of second degree murder, conspiracy to murder, and accessory to murder. (§§ 32, 182, subd. (a)(1), 187, subd. (a).^[1]) On June 23, 2004, we rejected his insufficiency of the evidence argument but reversed the judgment and ordered a new trial since the court impermissibly lowered the prosecution's constitutional burden of proof by misinstructing the jury on reasonable doubt. (People v. Johnson (2004) 119 Cal.App.4th 976.)

On April 1, 2005, a jury, inter alia, again found Johnson guilty of second degree murder, conspiracy to murder, and accessory to murder. Before his probation and sentencing hearing, his attorney learned while attending portions of the trial of Arthur Lenix, who likewise was being prosecuted for Lamar's homicide, that Lenix's attorney had police reports that he had never seen and that the prosecutor had never disclosed to him with information about the involvement of the prosecution's sole eyewitness to the killing, Lamar's cousin Curtis Rufus, in a shooting outside a convenience store before Johnson's second trial.^[2] On the basis of the information in those reports, Johnson sought a new trial, but the prosecutor opposed, and the court denied, the motion.

On appeal, Johnson argues, as before, insufficiency of the evidence and raises, inter alia, two new issues. He argues that there is a reasonable probability that the result of his trial would have been different had the prosecutor not withheld those police reports from him. On the ground that the jury's not guilty verdict of first degree murder at his first trial rejected the mental state of premeditation and deliberation common to first degree murder and conspiracy to murder, he argues that the double jeopardy clause precludes a retrial of the conspiracy to murder charge.

Although we will reject Johnson's insufficiency of the evidence and double jeopardy arguments, we will determine that the prosecutor's withholding of discovery violated due process and will reverse the judgment and order a new trial on that ground.

FACTUAL HISTORY

Having grown up together, worked together, and hung out together, Curtis and Lamar were extremely close to each other â€“ more like brothers than cousins. On the evening of September 19, 2002, they partied together at the Rockin' Rodeo nightclub for several hours until closing time. After Curtis gave Lamar a ride to the spot where he had parked his car, they both drove their cars to a convenience store and parked beside each other in an alley behind the store. Curtis went inside the store to get a bottle of water but, noticing â€

Description	At murder defendant's second trial, conducted due to court's misinstruction of jury on reasonable doubt at first trial, prosecutor's withholding of police reports about a police investigation into a shooting outside a convenience store after first trial but before second trial violated due process, where reports contained evidence indicating that a key prosecution witness, whom prosecutor described as having no pre existing biases or reasons to lie about defendant, had connections to gang members and thus had motivation to give false testimony.
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