In re Johnson (1st Dist., Div.4) Retroactive Application of Chiu Requires Reversal

After a group of thugs had beaten the victim unconscious, Mr. Johnson arrived on the scene and asked the thugs for a gun so he could kill the victim.  When the thugs did not provide him a gun, Johnson and the thugs beat the victim about the head, stabbed him in the neck, and placed a milk crate over the victims neck and stepped on it.  The victim died of blunt trauma to his head.

Johnson was tried for first degree murder.  The state advanced three different theories of culpability.  First, that Johnson was guilty of first degree murder because he premeditated the killing.  Second, even if Johnson didn't premeditate and deliberate the killing, he did enter into a conspiracy with the thugs to assault the victim with first degree murder being a natural and probable consequence of the assault.  Third, Johnson aided and abetted the assault of the victim with first degree murder being a natural and probable consequence of the assault.

The state argued all three theories and the trial court instructed on all three theories.  A jury found Johnson guilty of first degree murder and conspiracy to commit assault.  Johnson appealed his conviction and on appeal the First District affirmed.

Following the 2014 decision in P v. Chiu, 59 Cal. 4th 155, Johnson petitioned for a writ of habeas corpus.  Now the First District grants Johnson's petition and reverses his first degree murder conviction.

In Chiu, the California Supreme Court held that the "natural and probable consequences" doctrine of derivative liability does not apply to first degree murder.  Further the court said that when a trial court instructs on two theories of liability, one valid and one invalid, reversal is required unless the court can determine beyond a reasonable doubt that the jury based its verdict on the valid theory.

Here the trial court instructed, and the prosecution argued, three bases of liability.  Two turned out to be invalid and one valid.  Given the evidence, the panel cannot tell upon what theory, or theories, the jury based its verdict so reversal is required.  The people can now either retry Johnson on the first degree murder charge or accept a conviction for second degree murder.