A panel of California’s 2nd District Court of Appeal in Los Angeles upheld convictions in the 2011 murder of a medical marijuana distributor found dead in a Long Beach alley.
But the justices reversed special circumstances findings that resulted in Long Beach’s Kenneth Ray Johnson and Charles Anthony Mackbee being sentenced to life in state prison without the possibility of parole.
Evidence “overwhelmingly shows” Johnson and Mackbee robbed West LA 29-year-old Philip Victor Williamson II, who picked up marijuana in Northern California for distribution in the Southland, the appeals panel states.
Johnson and Mackbee also admitted to being the triggerman, meaning one must be lying because only one gun was fired, according to the justices.’ 17-page ruling
But the panel also found “the jury instructions were defective” in vacating jurors’ finding of the special circumstance allegation of murder during a robbery.
“As the prosecutor acknowledged during closing argument, the evidence does not conclusively establish which of the two—Johnson or Mackbee—was the killer,” the panel writes. “Because only one of them was the killer and because the other one was necessarily not the killer, either one of them could be a robbery participant who was not the killer. As a result, the trial court was obligated to instruct on the additional elements as to both Johnson and Mackbee. Yet the court did not instruct on these additional elements as to either defendant.”
The appellate court panel kicked the case back down to the trial court, where the prosecution can either retry the pair with the special circumstance allegation or have a judge sentence them without such a finding.