People v. Johnson

Filed 12/1/20 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B299044
(Super. Ct. No. F435613002)
Plaintiff and Respondent, (San Luis Obispo County)

v. ORDER MODIFYING
OPINION AND DENYING
RYAN JAMES JOHNSON, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]

THE PEOPLE, 2d Crim. No. B302697
(Super. Ct. No. F435613001)
Plaintiff and Respondent, (San Luis Obispo County)

v.

JESSE MICHAEL BAKER-
RILEY,

Defendant and Appellant.

THE COURT:
It is ordered that the opinion filed herein on
November 9, 2020, be modified as follows:
 On page 14, the first full paragraph, beginning ‘There
is no merit to Johnson’s imaginative claim” is deleted and the
following paragraph is inserted in its place:
“We need not decide whether, after the effective date
of S.B 1437, Johnson “could not be convicted of [provocative act
murder] because of changes to Section 188 . . . .” (§ 1170.95,
subd. (a)(3).) If he could not be so convicted today, he would still
be ineligible for relief under section 1170.95 because he was not
originally “convicted of felony murder or murder under a natural
and probable consequences theory . . . .” (Id., subd. (a).) As we
explain below, we cannot conclude that the Legislature intended
to afford relief to persons convicted of murder under other
theories such as provocative act murder.
There is no change in judgment.
Appellant Ryan James Johnson’s Petition for
Rehearing is denied.

GILBERT, P.J. YEGAN, J. PERREN, J.

2
Filed 11/9/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B299044
(Super. Ct. No. F435613002)
Plaintiff and Respondent, (San Luis Obispo County)

v.

RYAN JAMES JOHNSON,

Defendant and Appellant.

THE PEOPLE, 2d Crim. No. B302697
(Super. Ct. No. F435613001)
Plaintiff and Respondent, (San Luis Obispo County)

v.

JESSE MICHAEL BAKER-
RILEY,

Defendant and Appellant.

Ryan James Johnson and Jesse Michael Baker-Riley
appeal from orders denying their petitions to vacate their first
degree murder convictions and obtain resentencing pursuant to
Senate Bill No. 1437 (S.B. 1437), which went into effect on
January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) S.B. 1437
added section 1170.95 to the Penal Code.1 If a defendant has
previously been convicted of murder under the felony-murder
rule or the natural and probable consequences doctrine and
qualifies for relief under section 1170.95, the statute permits the
defendant to petition to vacate the conviction and obtain
resentencing on any remaining counts.
Appellants were separately tried before different juries for
the same criminal conduct – a home-invasion armed robbery that
went awry when one of the victims shot and killed an accomplice.
Appellants’ convictions were based solely upon the provocative
act murder doctrine.
The Superior Court denied appellants’ petitions because it
concluded that section 1170.95 is unconstitutional. We need not
consider this issue. Irrespective of the constitutionality of section
1170.95, appellants are ineligible for relief because they were not
convicted of murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine. They were
convicted of murder under the provocative act murder doctrine.
(See People v. Lee (2020) 49 Cal.App.5th 254, 257-258 (Lee),
review granted July 15, 2020, S262459 [petitioner not entitled to
resentencing under section 1170.95 because he was convicted of
provocative act murder].)2

1 All statutory references are to the Penal Code.
2 “Pending review and filing of the Supreme Court’s

opinion,” Lee has “no binding or precedential effect, and may be
cited for potentially persuasive value only.” (Cal. Rules of Court,
rule 8.1115(e)(1).)

2
 Because the appeals involve the same criminal conduct and
common legal issues, in the interest of judicial economy and
efficiency we order the appeals consolidated for the purpose of
decision. We issue a single opinion affirming the orders denying
appellants’ petitions. (See People v. Schnaible (1985) 165
Cal.App.3d 275, 277.)
Convictions and Prior Appeals
In addition to being convicted of first degree murder (§§
187, subd. (a), 189), Johnson was convicted of first degree
residential burglary (§§ 459, 460, subd. (a)), conspiracy to commit
robbery (§§ 182, subd. (a)(1), 211), and two counts of first degree
residential robbery. (§§ 211, 212.5, subd. (a).) The jury found
true firearm enhancements within the meaning of section 12022,
subdivision (a)(1). Johnson was sentenced to prison for 26 years
to life.
In addition to being convicted of first degree murder,
Baker-Riley was convicted of first degree residential burglary and
two counts of first degree residential robbery. The jury found
true firearm enhancements within the meaning of sections
12022.53, subdivision (b) and 12022.5, subdivision (a). Baker-
Riley was sentenced to prison for 35 years to life.
In People v. Johnson (2013) 221 Cal.App.4th 623 (Johnson),
and People v. Baker-Riley (2012) 207 Cal.App.4th 631 (Baker-
Riley), we affirmed the judgments.

Since we do not consider the constitutionality of section
1170.95, we deny as moot the People’s motions to take judicial
notice of various documents in support of their argument that the
statute is unconstitutional. We grant Johnson’s motion to take
judicial notice of a jury instruction given in his case: CALCRIM
No. 561, entitled “Homicide: Provocative Act by Accomplice.”

3
 Facts
Except as otherwise noted, the facts are taken from the
statement of facts in our prior opinion, Johnson, supra, 221
Cal.App.4th at pp. 627-629. A separate statement of facts is set
forth in Baker-Riley, supra, 207 Cal.App.4th at pp. 633-634. The
two statements are similar except that the statement of facts in
Baker-Riley does not mention Johnson’s conduct.
“Peter Davis lived in Los Osos. . . . [¶] [Johnson] knew
Davis and on July 18, 2009, he told Janine Lindemans that he
‘and his homies are taking care of something’ and ‘[w]e are going
to come up big.’ [Johnson] explained ‘that they were taking care
of somebody that was selling pot or dope . . . in our town,
meaning Los Osos, and that the person had no business doing
business like that in [ ]our town, and that [Johnson] . . . [and] his
homies were basically doing a home invasion.’ Lindemans asked,
‘Are you talking about a home invasion robbery?’ [Johnson]
replied, ‘Well, yeah, I guess, if you want to call it that.’ [Johnson]
identified one of his ‘homies’ as ‘Kelsey’ (Kelsey Alvarez).
[Johnson] said that they were going to ‘take . . . Pete’s [Peter
Davis’s] pot, and that they had a gun.’ They intended to use the
gun during the robbery. [Johnson] boasted ‘that he was running
things,’ and he appeared to be ‘pretty proud of himself that he
was the shot caller.’
“That same day Peter Davis and his friend, Dylan
Baumann, were inside Davis’s residence when they heard a
knock on the door. Davis opened the door and saw two persons
whom he did not recognize. They were Kelsey Alvarez and Jesse
Baker-Riley. Baker-Riley ‘pulled out a large firearm and put it in
[Davis’s] face.’ Baker-Riley and Alvarez entered the residence.
Baker-Riley said to Baumann, ‘[S]it down or I’ll shoot you.’

4
Baumann testified that Baker-Riley ‘put his gun on my kneecaps
and told me he was going to shoot off my kneecaps.’ [¶] Baker-
Riley demanded cash and marijuana. Baumann emptied his
pockets of all items, including a cell phone. Baker-Riley took the
cell phone and put it in his pocket.
“Baker-Riley ‘pointed to a pile of vaporized pot that was on
the table.’ He ordered Davis to wrap it in a paper towel and give
it to him. Davis complied with the order. Baker-Riley was
‘clicking the safety’ of his gun ‘on and off’ and was ‘taunting’
Davis and Baumann. He made them look at the gun, threatened
to kill them if they ‘did anything,’ and said, ‘I’m quick on the
trigger, homie.’ Baker-Riley warned: ‘I’m a fucking thug. You
don’t want[ ] to fuck with me, homie. . . .’[3]
“Baker-Riley saw a fortune cookie on a table. He pointed
the gun at Davis and said: ‘Open that fortune cookie, homie.’
Davis opened the cookie and, at Baker-Riley's direction, read the
fortune inside. The fortune said: ‘There will be many upcoming
opportunities. Take advantage of them.’ Baker-Riley laughed
and ‘made a statement about how he was taking advantage of us.’
Baker-Riley ate some food that was on the table and, at gunpoint,

3 In our prior Baker-Riley opinion, the statement of facts
includes the following excerpts: Baker-Riley said to Baumann:
“‘I’ll fucking make you paralyzed for the rest of your fucking life.
I’ll shoot your fucking kneecaps.’” (Baker-Riley, supra, 207
Cal.App.4th at p. 634.) “[Baker-Riley] pointed his gun at Davis
and Baumann and ordered them to empty their pockets. They
did as they were told. [Baker-Riley] said, ‘I’ll fucking kill. I’ll
fucking shoot you right now.’ . . . Baumann thought, ‘I can’t
believe I’m going to die and I haven’t lived the life I want to
fulfill.’” (Ibid.)

5
forced Baumann and Davis to eat some of the food. . . .
“Baker-Riley saw marijuana drying in a back bedroom. He
said, ‘Oh, here is their f-ing weed. Here is their grass.’ Baker-
Riley pointed his gun at Davis and ordered him to walk into the
back bedroom and sit on the bed. Davis complied with the order.
He pleaded: ‘Don’t kill me. I’m not going to do anything. Take
what you want. Just don’t kill me.’ Baker-Riley did not respond.
Davis thought that he ‘was going to die,’ that Baker-Riley ‘was
separating me to kill me.’
“Davis saw his own firearm next to the bed. He picked it
up, aimed at Baker-Riley, and started firing. One of the bullets
struck Alvarez in the chest and killed him.”
S.B. 1437
“Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
[such as robbery] could be convicted of murder for a killing during
the felony, or attempted felony, without further examination of
his or her mental state. [Citation.] . . . [¶] Independent of the
felony-murder rule, the natural and probable consequences
doctrine rendered a defendant liable for murder if he or she aided
and abetted the commission of a criminal act (a target offense),
and a principal in the target offense committed murder (a
nontarget offense) that, even if unintended, was a natural and
probable consequence of the target offense. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248.)
In S.B. 1437 the Legislature declared, “It is necessary to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major

6
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
To achieve this goal, S.B. 1437 amended section 189, insofar as it
pertains to the felony-murder rule, to add subdivision (e), which
provides: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer. (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony
and acted with reckless indifference to human life, as described
in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
S.B. 1437 also amended section 188 to add subdivision
(a)(3), which provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (Stats. 2018, ch. 1015, § 2.) The amendment of section
188 “eliminated liability for murder under the natural and
probable consequences doctrine.” (Lee, supra, 49 Cal.App.5th at
p. 262.) The Legislature declared, “A person’s culpability for
murder must be premised upon that person’s own actions and
subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. It provides in subdivision
(a), “A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the

7
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when” certain conditions apply. One of the
conditions is that “[t]he petitioner could not be convicted of first
or second degree murder because of changes to Section 188 or 189
made [by S.B. 1437] effective January 1, 2019.” (Id., subd. (a)(3).)
Provocative Act Murder Doctrine
“‘Under the provocative act [murder] doctrine, when the
perpetrator of a crime maliciously commits an act that is likely to
result in death, and the victim kills in reasonable response to
that act, the perpetrator is guilty of murder. [Citations.] “In
such a case, the killing is attributable, not merely to the
commission of a felony, but to the intentional act of the defendant
or his accomplice committed with conscious disregard for life.”
[Citation.]’ [Citation.] [¶] . . . ‘[A] participant in the underlying
crime who does not actually commit a provocative act himself
may nevertheless be vicariously liable for the killing caused by
his provocateur accomplice based upon having aided and abetted
commission of the underlying crime. [Citations.] Thus, under
the provocative act doctrine, a defendant may be vicariously
liable for the provocative conduct of his surviving accomplice in
the underlying crime. [Citation.]’ [Citation.]” (Johnson, supra,
221 Cal.App.4th at pp 629-630.)
“As to the mental element of provocative act murder, the
People must prove ‘that the defendant personally harbored . . .
malice.’ [Citations.] But, malice may be implied: ‘[T]he central
inquiry in determining criminal liability for a killing committed
by a resisting victim . . . is whether the conduct of a defendant or
his accomplices was sufficiently provocative of lethal resistance to
support a finding of implied malice.’ [Citation.]” (Johnson,
supra, 221 Cal.App.4th at p. 630.)

8
 Appellants Not Eligible for Relief under
Felony-Murder Provision of Section 1170.95
Appellants cannot seek relief under the felony-murder
provision of section 1170.95. They were convicted of provocative
act murder, not felony murder. “When someone other than the
defendant or an accomplice kills during the commission or
attempted commission of a crime, the defendant is not liable
under felony-murder principles but may nevertheless be
prosecuted for murder under the provocative act doctrine. . . .
Under the felony-murder rule, if an accomplice is killed by a
crime victim and not by the defendant, the defendant cannot be
held liable for the accomplice’s death. [Citations.] The
provocative act doctrine is not so limited. Under the provocative
act doctrine, . . . ‘the killing is attributable, not merely to the
commission of a felony, but to the intentional act of the defendant
or his accomplice committed with conscious disregard for life.’”
(People v. Gonzalez (2012) 54 Cal.4th 643, 654-655 (Gonzales).)
Even though he was not convicted of felony murder, Baker-
Riley contends he is eligible for relief under section 1170.95
because the felony-murder rule was invoked to determine the
degree of the murder, i.e., murder of the first degree. (See Baker-
Riley, supra, 207 Cal.App.4th at p. 635 [“‘provocative act implied
malice murders are first degree murders when they occur during
the course of a felony enumerated in section 189 that would
support a first degree felony-murder conviction’”].) Therefore,
Baker-Riley argues: “[H]is conviction is inextricably intertwined
with the felony murder rule, since it is only by virtue of that rule
that the mens rea required for first degree murder is imputed to
the defendant. . . . This . . . provides an additional basis for
appellant’s eligibility for resentencing under the new law . . . .”

9
 We disagree. The language of section 1170.95, subdivision
(a) clearly and unambiguously states that “[a] person convicted of
felony murder” may file a petition for relief. Although the felony-
murder rule was invoked to determine the degree of Baker-
Riley’s and Johnson’s murder, it was legally impossible for them
to have been “convicted of felony murder” because one of the
victims, not Baker-Riley, Johnson, or their accomplice, fired the
fatal shot. (Gonzalez, supra, 54 Cal.4th at pp. 654-655.) Thus,
appellants do not qualify for relief pursuant to the felony-murder
provision of section 1170.95.
Appellants’ Not Eligible for Relief under “Natural and
Probable Consequences” Provision of Section 1170.95
Because they were not convicted of felony murder,
appellants are eligible for section 1170.95 relief only if they were
“convicted of . . . murder under a natural and probable
consequences theory” and could not be convicted of murder today
because of changes made by S.B. 1437. (§ 1170.95, subd. (a)(3).)
“‘[U]nder the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended crime, but also
“[of] any other offense that was a ‘natural and probable
consequence’ of the crime aided and abetted.”’” (People v. Chiu
(2014) 59 Cal.4th 155, 158 (Chui).) “‘By its very nature, aider
and abettor culpability under the natural and probable
consequences doctrine is not premised upon the intention of the
aider and abettor to commit the nontarget offense because the
nontarget offense was not intended at all. It imposes vicarious
liability for any offense committed by the direct perpetrator that
is a natural and probable consequence of the target offense.” (Id.
at p. 164.)

10
 “[A] person aids and abets the commission of a crime when
he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the
commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561.)
Baker-Riley Not Eligible for Relief under
“Natural and Probable Consequences” Provision
Baker-Riley was not an aider and abettor. He was a direct
perpetrator of the crimes committed during the home-invasion
robbery. He was also a direct perpetrator of the acts that
provoked Davis to fire his gun. The legislature made clear that
S.B. 1437 would not benefit “a major participant in the
underlying felony [such as Baker-Riley] who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
see also § 189, subd. (e)(3).)
Nevertheless, Baker-Riley claims that he qualifies for relief
under section 1170.95 because, “[a]s currently characterized by
the California Supreme Court, provocative act murder is clearly
one particular subset of the natural and probable consequences
doctrine.” In support of his claim, Baker-Riley cites the following
passage from Gonzales, supra, 54 Cal.4th at pp. 655-656: “When
the defendant commits an inherently dangerous felony, the
victim’s self-defensive killing is generally found to be a natural
and probable response to the defendant’s act, and not an
independent intervening cause that relieves the defendant of
liability.”
The above-quoted passage from Gonzales does not support
Baker-Riley’s claim that provocative act murder is a “subset of

11
the natural and probable consequences doctrine.” The passage
relates to proximate cause. (See Lee, supra, 49 Cal.App.5th at p.
266 [similar statement by Supreme Court in People v. Concha
(2009) 47 Cal.4th 653, 661, was “made . . . in the context of
explaining that a conviction for provocative act murder requires
proof of proximate causation”].) The Gonzales court noted: “An
important question in a provocative act case is whether the
act proximately caused an unlawful death. ‘[T]he defendant is
liable only for those unlawful killings proximately caused by the
acts of the defendant or his accomplice. . . . “[I]f the eventual
victim’s death is not the natural and probable consequence of a
defendant’s [provocative] act, then liability cannot attach.”
[Citation.]’” (Gonzales, supra, 54 Cal.4th at p. 655.)
Baker-Riley is not assisted by S.B. 1437’s amendment of
section 188 to add the provision, “Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) Malice was not imputed to Baker-Riley
based solely on his participation in the crime of robbery. It was
imputed to him based on his commission during the robbery of
provocative acts that manifested a conscious disregard for life.
Baker-Riley therefore does not satisfy the requirement that he
“could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(3).)
Johnson Not Eligible for Relief under
“Natural and Probable Consequences” Provision
Unlike Baker-Riley, Johnson was an aider and abettor. He
was not present when the robbery and provocative acts occurred.
“[Johnson] was the ‘mastermind’ of the home-invasion robbery.
He sent his accomplices to do his bidding and knew that they

12
were going to use a gun to accomplish his goals.” (Johnson,
supra, 221 Cal.App.4th at p. 636.) “He planned, directed, and
supervised this crime.” (Id. at p. 630.)
Although Johnson was an aider and abettor, he is ineligible
for section 1170.95 relief because he was not convicted of murder
pursuant to the natural and probable consequences doctrine, i.e.,
he was not convicted under the theory that a principal (Baker-
Riley) in the commission of the target crime (robbery) had
committed a nontarget crime (murder) that was a natural and
probable consequence of the target crime. (See People v. Smith
(2014) 60 Cal.4th 603, 611.) He was convicted of murder on a
provocative act theory.
Johnson’s Legislative Intent Argument
“‘If there is no ambiguity in the language [of a statute], we
presume the Legislature meant what it said, and the plain
meaning of the statute governs. [Citation.]’” (Curle v. Superior
Court (2001) 24 Cal.4th 1057, 1063.) Johnson “concedes that
under such a ‘plain meaning’ interpretation of subdivision (a) of
section 1170.95, the Court could assume that [he] does not
qualify for relief under this section as he was not convicted of
murder under the felony murder rule or the natural and probable
consequences theory.”
But Johnson with some imaginative thinking, argues “that
harmonizing the entirety of . . . [S.B.] 1437, consideration of the
object of the legislation and the evils to be remedied, and the
legislat[ive] history clearly leads to a finding that the Legislature
intended [that he be] included in the relief available under
section 1170.95.” Johnson’s argument is based on the
assumption that he “could not be convicted of murder if he were
to go to trial subsequent to the enactment of [S.B.] 1437.” This

13
assumption in turn is based on S.B. 1437’s amendment of section
188 to add the provision, “Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).) Johnson claims, “[I]t is clear that [his] conviction was
based on malice imputed to him ‘based solely on his participation’
in a conspiracy to commit the crime of robbery [that] led to the
death of a co-conspirator [Alvarez].” Johnson reasons that, since
he could not today be convicted of provocative act murder because
of changes made to section 188 by S.B. 1437, the Legislature
must have intended to permit him to seek relief from his
conviction pursuant to section 1170.95.
There is no merit to Johnson’s imaginative claim. In our
view he could be convicted today of provocative act murder.
“If the words of the statute are clear, the court should not
add to or alter them to accomplish a purpose that does not appear
on the face of the statute or from its legislative history.” (People
v. Knowles (1950) 35 Cal.2d 175, 183.) The express language in
section 1170.95 and its legislative history show that the
Legislature intended the statute to afford relief only to “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory . . . .” (§ 1170.95, subd. (a).) “When
describing the proposed petition process, the Legislature
consistently referred to relief being available to individuals
charged in a complaint, information or indictment ‘that allowed
the prosecution to proceed under a theory of first degree felony
murder, second degree felony murder, or murder under the
natural and probable consequences doctrine’ . . . .” (People v.
Lopez (2019) 38 Cal.App.5th 1087, 1105, review granted Nov. 13,
2019, S258275.)

14
 Johnson in effect is contending that the omission of
“provocative act murder” from section 1170.95, subdivision (a),
was a legislative oversight. “[I]f the omission was the product of
legislative oversight, we cannot correct the mistake.” (People v.
Superior Court (2003) 107 Cal.App.4th 488, 494.) “[T]he
Legislature should provide the remedy.” (People v. Pecci (1999)
72 Cal.App.4th 1500, 1506; see Adoption of Kelsey S. (1992) 1
Cal.4th 816, 827 [“to insert words into the statute . . . would
violate the cardinal rule that courts may not add provisions to a
statute”]; accord, People v. Guzman (2005) 35 Cal.4th 577, 587.)
Johnson’s Equal Protection Argument
Johnson claims that, if section 1170.95 does not apply to
him, it violates equal protection under the federal and California
constitutions. “‘“The concept of the equal protection of the laws
compels recognition . . . that persons similarly situated with
respect to the legitimate purpose of the law receive like
treatment.”’ [Citation.] ‘The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.’” (Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.) “Where two or
more groups are properly distinguishable for purposes of the
challenged law, it is immaterial if they are indistinguishable in
other respects.” (People v. Barrett (2012) 54 Cal.4th 1081, 1107.)
Johnson and persons convicted of felony murder or murder
under the natural and probable consequences doctrine are not
similarly situated for equal protection purposes. Johnson was
convicted of murder based on Baker-Riley’s provocative acts that
caused Davis to shoot an accomplice. Felony-murder principles
do not apply to such a factual scenario. (Gonzalez, supra, 54

15
Cal.4th at pp. 654-655.) Nor does the natural and probable
consequences doctrine apply because Davis’s shooting of the
accomplice was not “‘“a ‘natural and probable consequence’ of the
crime aided and abetted,”’” but instead was a natural and
probable consequence of Baker-Riley’s provocative acts. (Chiu,
supra, 59 Cal.4th at p. 158.)
Johnson is also not similarly situated to persons convicted
of felony murder or murder under the natural and probable
consequences doctrine because “[u]nlike [these murders], ‘[a]
murder conviction under the provocative act doctrine . . . requires
proof that the defendant personally harbored the mental state of
malice . . . .’”4 (Lee, supra, 49 Cal.App.5th at p. 264, quoting from
Gonzalez, supra, 54 Cal.4th at p. 655.) “Because [Johnson] was
convicted of provocative act murder, the jury necessarily found he
acted with malice aforethought.” (Lee, supra, at p. 265.) In our
prior opinion, we rejected Johnson’s contention “that the evidence
is insufficient to support his conviction for murder because ‘he did
not personally harbor malice.’” (Johnson, supra, 221 Cal.App.4th
at p. 630.) We reasoned, “To credit this contention we would have

4 “Liability for felony murder does not depend on an
examination of ‘the individual state of mind of each person
causing an unlawful killing to determine whether the killing was
with or without malice . . . .’ . . . ‘The felony-murder rule generally
acts as a substitute for the mental state ordinarily required for
the offense of murder.’” (People v. Cavitt (2004) 33 Cal.4th 187,
205.) “The natural and probable consequences doctrine . . .
allows an aider and abettor to be convicted of murder, without
malice . . . .” (People v. Culuko (2000) 78 Cal.App.4th 307, 322,
italics added.)

16
to hold, as a matter of law, that malice cannot be imputed to the
‘mastermind’ of an armed home-invasion robbery if he is not
personally present at the scene of the murder. We will not do so.”
(Ibid.)
Conclusion
Both appellants are ineligible for relief pursuant to section
1170.95 because they were convicted of provocative act murder,
not “felony murder or murder under a natural and probable
consequences theory.” (Id., subd. (a).)
Disposition
The orders in B299044 and B302697 denying appellants’
petitions for relief under section 1170.95 are affirmed.
CERTIFIED FOR PUBLICATION

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

17
 Dodie A. Harman, Judge

Superior Court County of San Luis Obispo

______________________________

Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant, Ryan Johnson.

Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant, Jesse Baker-Riley.

Dan Dow, District Attorney, Eric Dobroth, Assistant
District Attorney, Melissa Chabra, Christopher G. Peuvrelle,
Deputy District Attorneys, for Plaintiff and Respondent.

Mark Zahner, Chief Executive Officer; Michael A. Hestrin,
District Attorney, Alan D. Tate, Lead Deputy District Attorney;
Jason Anderson, District Attorney, James R. Secord, Deputy
District Attorney, as Amicus Curiae on behalf of Plaintiff and
Respondent.