People v. Johnson CA4/1

Filed 5/11/21 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076966

Plaintiff and Respondent,

v. (Super. Ct. No. SCE359485)

THOMAS JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Evan P. Kirvin, Judge. Affirmed in part; reversed in part and remanded with
directions.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
 I.
INTRODUCTION
During the first phase of a bifurcated trial, a jury found Thomas
Johnson guilty of numerous offenses, including carjacking (count 2; Pen.
Code, § 215, subd. (a)),1 kidnapping (count 3; § 207, subd. (a)), robbery
(count 8; § 211), attempted robbery (count 9; §§ 664 and 211), and evading an

officer with reckless driving (count 10; Veh. Code, § 2800.2, subd. (a)).2
During the second phase of the trial, the trial court found that Johnson had
suffered four prior Illinois convictions that were serious felonies under
California law (§§ 667, subd. (d), 1192.7, subd. (c)) and found true four strike
conviction allegations (§§ 667, subds. (b)–(i); 1170.12) and four serious felony
conviction allegations (§ 667, subd. (a)(1)) premised on those four convictions.
Johnson subsequently filed a motion for new trial based on alleged jury
misconduct. The trial court denied the motion and sentenced Johnson to a
total term of 66 years plus 81 years to life in prison.
On appeal, Johnson claims that the trial court erred in declining to
hold an evidentiary hearing on his motion for new trial. In the alternative,
Johnson claims that his counsel provided ineffective assistance in failing to
support the new trial motion with juror affidavits. We conclude that the trial
court did not err in denying Johnson’s request for an evidentiary hearing on
his motion for new trial and Johnson has not established that his counsel
provided ineffective assistance in connection with the motion.

1 All subsequent statutory references are to the Penal Code, unless
otherwise specified.
2 We describe the charges, allegations, verdicts, true findings, and
sentence in detail in part II.B, post.
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 Johnson also claims that three of the four prior Illinois convictions do
not qualify as serious felonies under California law (§§ 667, subd. (d), 1192.7,
subd. (c)) and thus, that the trial court’s true findings on the strike (§§ 667,
subds. (b)–(i); 1170.12) and serious felony allegations (§ 667, subd. (a)(1))

must be reversed.3 Johnson notes that the trial court acknowledged that
there “there was no direct, specific, explicit evidence,” of two of the requisite
elements to qualify those convictions as serious felonies under California law.
Johnson further notes that the trial court stated that it inferred “that those
elements were present in the factual basis for each of the serious felony
prior[ ]” and on the basis of such “inference . . . [found] that all the elements
of the California statutes have been met.” Johnson argues that, in imposing
an enhanced sentence based on factual findings that the court expressly
stated were based the court’s own “inference[s],” the trial court violated
Johnson’s Sixth Amendment jury trial right under People v. Gallardo (2017)
4 Cal.5th 120 (Gallardo).
We agree that under Gallardo a trial court is prohibited from making
factual findings that were not made by the jury or admitted by the defendant
in the prior case. (See Gallardo, supra, 4 Cal.5th at p. 136 [in determining
whether a prior conviction constitutes a strike or serious felony under
California law “[t]he court’s role is . . . limited to identifying those facts that
were established by virtue of the conviction itself—that is, facts the jury was
necessarily required to find to render a guilty verdict, or that the defendant
admitted as the factual basis for a guilty plea”].) There is nothing in the
record establishing that a jury found, or that Johnson admitted, all of the

3 Johnson does not raise any challenge to the trial court’s finding that his
prior Illinois conviction for attempted armed robbery in case No.
04CR1883101 constituted a strike conviction (§§ 667, subds. (b)‒(i); 1170.12)
and a serious felony conviction (§ 667, subd. (a)) under California law.
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facts necessary to establish that any of the three challenged Illinois
convictions constitutes a serious felony under California law (§§ 667, subd.

(d), 1192.7, subd. (c)).4 In light of Gallardo, we are compelled to conclude
that there is not substantial evidence in the record to support the trial court’s
true findings that the three challenged Illinois convictions constitute strikes
and serious felonies under California law.
While Johnson requests that we vacate the challenged true findings
and remand for resentencing, the double jeopardy clause does not preclude
the People from retrying the reversed prior conviction allegations, if they
elect to do so. (See People v. Monge (1997) 16 Cal.4th 826, 843; accord,
Gallardo, supra, 4 Cal.5th at p. 138.) Accordingly, while the record does not
currently contain evidence that would support true findings on the three
challenged strike and serious felony allegations, we conclude that the People
should be afforded the opportunity to retry those allegations if they can
obtain additional evidence and choose to retry Johnson on the allegations.
Accordingly, we reverse the judgment for the limited purpose of
permitting the retrial of the reversed strike and serious felony conviction

allegations if the People so elect, resentencing Johnson,5 and preparation of a
new abstract of judgment.

4 Specifically, as we explain in part III.B, post, there is no evidence in the
record that in entering guilty pleas in the prior Illinois proceedings, Johnson
admitted possessing the requisite specific intent for any of his Illinois
convictions to constitute a serious felony under California law.
5 In resentencing Johnson on remand, the trial court shall consider the
unchallenged true findings that Johnson suffered a prior Illinois conviction
for attempted armed robbery in case No. 04CR1883101 that constituted a
strike conviction (§§ 667, subds. (b)–(i); 1170.12) and a serious felony
conviction (§ 667, subd. (a)). (See fn. 3., ante.)
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 II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Johnson kidnaps B.B. and steals his truck
On March 28, 2016, at approximately 2:00 p.m., Johnson approached
B.B. in a parking lot and threatened to stab him with a needle contaminated
with AIDS unless B.B. gave Johnson a ride in his truck. Feeling as though
had no choice, B.B. complied. Johnson got into B.B.’s truck, pulled out three
needles, put them to B.B.’s neck, and told B.B. to start driving. Johnson
forced B.B. to drive around to various places for approximately 45 minutes.
While stopped at a stoplight, B.B. was able to escape from the truck Johnson
got in the driver’s seat and drove away.
2. Johnson robs 75-year-old Martha E.
That same day, Johnson drove B.B.’s truck into a store’s parking lot.
75-year-old Martha E. (Martha) was walking in the lot. Johnson approached
Martha and asked her for directions to a store. While speaking with Martha,
Johnson grabbed Martha’s purse and pulled it off her shoulder. Martha tried
to hold on to the bottom of the purse, but Johnson managed to take it from
her as he drove away.
3. Johnson attempts to rob Pamela S.
Later that evening, at around 9:20 p.m., Pamela S. (Pamela) drove to a
store. While Pamela was walking from the store to her car, Johnson drove up
to her in B.B.’s truck. Johnson lunged out of the window and tried to grab
Pamela’s purse from her left arm. While holding onto her purse, Pamela
stabbed at Johnson with her car keys, cursed at him, and yelled, “Police,
police, help, I’m being robbed!” Johnson abandoned his efforts to steal the
purse and drove away. A bystander called 911.

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 4. Johnson leads police on a high-speed vehicle chase before crashing
and being arrested
At around 9:30 p.m. that same evening, Johnson led police on a high-
speed chase in B.B.’s truck. Johnson eventually crashed and police arrested
him.
B. Procedural background
1. The charges and allegations
In a second amended information, the People charged Johnson with
kidnapping during a carjacking (count 1; § 209.5, subd. (a)); carjacking
(count 2; § 215, subd. (a)); kidnapping (count 3; § 207, subd. (a)); robbery
(counts 4 and 8; § 211); assault with a deadly weapon (count 5; § 245, subd.
(a)(1)); making a criminal threat (count 6; § 422); unlawful driving or taking
of a vehicle (count 7; Veh. Code, § 10851, subd. (a)); attempted robbery
(count 9; §§ 664 and 211); and evading an officer with reckless driving
(count 10; Veh. Code, § 2800.2, subd. (a)).
As to counts 1 through 4 and 6, the People alleged that Johnson used a
deadly weapon during the commission of the offense (§ 12022, subd. (b)(1)).
As to count 8, the People alleged that the victim was 65 years of age or older
and that Johnson had previously been convicted of the crime of robbery
(§ 667.9, subds. (a) and (b)).
Finally, as described in greater detail in part III.C.2.a, post, the People
alleged that Johnson had suffered four prior Illinois convictions and that each
of these convictions constituted a strike (§§ 667, subds. (b)‒(i); 1170.12) and a
serious felony (§ 667, subd. (a)(1)) under California law.
2. The jury’s verdicts
The jury found Johnson guilty of carjacking (count 2; § 215, subd. (a));
kidnapping (count 3; § 207, subd. (a)); making a criminal threat (count 6;
§ 422); unlawful driving or taking of a vehicle (count 7; Veh. Code, § 10851,

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subd. (a)); robbery, (count 8; § 211); attempted robbery (count 9; §§ 664 and
211); and evading an officer with reckless driving (count 10; Veh. Code,
§ 2800.2, subd. (a)). As to the charge of assault with a deadly weapon
(count 5; § 245, subd. (a)(1)), the jury found Johnson guilty of the lesser
included offense of simple assault (§ 240). The jury also found true the
special allegation that Johnson committed the robbery alleged in count 8
against a person who was 65 years of age or older (§ 667.9 subd. (a)).
The jury found Johnson not guilty of kidnapping during a carjacking
(count 1; Pen. Code, § 209.5, subd. (a)); robbery (count 4; § 211); and assault
with a deadly weapon (count 5; § 245, subd. (a)(1)). The jury also found not
true the deadly weapon allegations (§ 12022, subd. (b)(1)) attached to counts

2, 3 and 6.6
3. The trial court’s true findings on the prior conviction allegations
As described in greater detail in part III.C.2.c, post, the trial court
found that Johnson was the person who had suffered the four prior Illinois
convictions. The court also found that each of the prior convictions
constituted a strike and a serious felony under California law. In addition,
the court found true the special allegation attached to count 8 that Johnson
had previously been convicted of a robbery (§ 667.9 subd. (b).)
4. The sentence
The trial court sentenced Johnson to a total term of 66 years plus 81
years to life in prison. The court sentenced Johnson to a determinate term of
six years on count 10. In addition, the court sentenced Johnson to
indeterminate terms of 29 years to life plus 20 years on count 2, 27 years to
life plus 20 years on count 8, and 25 years to life plus 20 years on count 9.

6 In light of its not guilty verdicts on counts 1 and 4, the jury did not
return verdicts as to the deadly weapon allegations attached to these counts.
7
The court stayed execution of the remaining sentences and allegations
pursuant to section 654.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying Johnson’s request
for an evidentiary hearing on his motion for new trial, nor did the court
“effectively” refuse to hear the motion for new trial
Johnson claims that the trial court abused its discretion in denying his
request for an evidentiary hearing on his motion for new trial based on
alleged juror misconduct. Specifically, Johnson claims that the trial court’s
“action in misleading defense counsel to believe a juror affidavit would be
incompetent evidence to support the motion,” entitled Johnson to an
evidentiary hearing at which he could present testimony in support of his
motion. Alternatively, Johnson contends that the trial court “effectively”
refused to hear the motion for new trial, in violation of section 1202.
1. Factual and procedural background
a. Johnson’s petition for the release of juror information
In July 2019, several months after the jury returned its verdicts,
Johnson filed a petition for the release of juror information in order to permit
defense counsel to pursue an investigation into possible juror misconduct.
In a supporting brief, Johnson stated the following:
“On March 6, 2019, the jurors returned a verdict of guilty
against [Johnson]. While the verdict was read, a few jurors
seemed upset. After seeing the juror was so upset the
defense investigator went to contact some jurors.
“In speaking with Juror [No. 2], he made a number of
startling statements regarding the subject of their
deliberations. First, he stated that he was appalled by
some of the behaviors and views of the jurors. He stated
that some of the jurors decided Mr. Johnson was guilty
before starting deliberations because of the color of Mr.

8
 Johnson’s skin. Also[,] some of the jurors stated they were
prejudiced against Mr. Johnson because of the color of his
skin. Additionally, the jurors discussed and considered the
fact Mr. Johnson did not testify.”
Johnson also stated in his brief that “Juror [No.] 2 was unable to sign
to [a] declaration.”
Johnson attached a declaration from a defense investigator who had
interviewed Juror No. 2 in May 2019. The investigator stated that Juror
No. 2 “stated that the older white female jurors had already decided that
[Johnson] was guilty based upon his skin color.” The defense investigator
also stated:
“I asked [Juror No. 2] if any of the jurors talked about
Johnson not testifying at the trial. [Juror No. 2] said it was
discussed several times. In particular[,] it was discussed
that several jurors believed that it was weird that they
never got to hear the defendant’s side of the story. They
also stated that if Johnson had testified, they believed it
could have helped his defense.”
The People filed an opposition to the petition. In their opposition, the
People argued that Juror No. 2’s claim that several older white females based
their verdict on Johnson’s “skin color,” was implausible because Johnson was
himself “clearly a white male.” The People also argued that the “the validity
of the entire proffered statement allegedly given to the defense investigator is
called into doubt when considering [defense counsel] sent the investigator out
to have the juror sign the declaration but the investigator was unable to do
so.”

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 b. The August 2 hearing during which defense counsel advised
the court that Juror No. 2 refused to sign a declaration
pertaining to alleged juror misconduct and said that he did
not want to be further involved
On August 2, the trial court continued the hearing on the petition for
release of juror information. Defense counsel stated the following with
respect to Juror No. 2:
“He gave his information. I then prepared a declaration.
We went out and the juror basically did not want to sign or
be involved at all. At that point in time, to protect my
client’s right, we served him with a subpoena to be here
mainly because I’m -- I don’t know -- at some point in time.
I don’t think the Court can take a hearsay declaration for a
motion for a new trial. I did not want to be in the position
of having to keep contacting this person because he
expressly desired not to be contacted anymore. And so
that’s where we left it.”
Defense counsel noted that, despite the defense’s issuance of a
subpoena to Juror No. 2, the juror was not present in court. Defense counsel
requested that the court issue a warrant to secure Juror No. 2’s presence.
The court refused to so.
c. The August 23 hearing at which the trial court determined
that the defense had made a prima facie showing of
entitlement to the release of juror information
On August 23, the trial court held a hearing at which it found that the
defense had made a prima facie case for the court to conduct a hearing to
determine whether juror personal identifying information should be released.
In light of that finding, the prosecutor requested that the jurors be subjected
to “an on-the-record direct examination and cross-examination by the
parties.” The court denied the prosecutor’s request, and stated that it was
setting a hearing for the purpose of determining whether to release juror
identifying information to the defense:

10
 “This hearing that I’m setting is just to determine whether
or not personal juror identifying information should be
released to defense counsel or not. That is it. If any of it is
released, I will presume defense counsel is going to ask for
a continuance to try to contact the jurors. . . . to formulate
a basis for a motion for a new trial, which they are entitled
to do, and then we would have a hearing on a motion for a
new trial.
“It may be appropriate at that time [—] that jurors are
subpoenaed [—] if that is going to be the basis for the
motion for a new trial. I will not subpoena the jurors for
the hearing that I’m setting now.
The court explained that it would send a notification to all of the jurors
concerning the defense’s request and that the notification would advise the
jurors as to how they could respond to the request:
“The court will send a notice by mail to all the jurors at
their last known address via U.S. first class mail, notifying
them of the petition that has been filed and the court
granting the hearing. They will be notified of all the rights
that they are afforded. They can appear in person, by
phone, by writing or by counsel. They can object to the
release of the information. They can consent to the release
of the information. They can agree to be contacted by
defense counsel. They can object to be contacted by defense
counsel. [¶] The court will give them the option of
personally appearing and making their feelings heard.”
d. The September 27 hearing
On September 27, the date sent for the hearing on the release of juror
information, the trial judge was unavailable. Another trial judge continued
the hearing to September 30.
That same day, the People filed a written motion requesting that, if the
court decided to release the juror information to the defense, the court release
the information to the People, as well.

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 e. The September 30 hearing at which the trial court released
Juror No. 11’s personal information and allegedly made
misleading statements to the defense concerning the
admissibility of juror declarations on a motion for new trial
On September 30, the trial court held a hearing during which the court
stated that only one of the 12 jurors, Juror No. 11, had agreed to be contacted
by defense counsel. The court stated that it would release Juror No. 11’s
personal information to the defense.
During the hearing, the court stated that it would deny the People’s
request to join in the defense’s request for the release of juror information.
The court noted that the People had not filed any “recognizable motion,”
seeking the release of juror information. The court added, “[T]he letter that
went out to the jurors was informing them the defense counsel wanted their
information and if they consent to that and [the letter] never mentioned
anything about releasing their information to the prosecution.”
The prosecutor responded by requesting that the trial court order the
defense to record any juror statement that it obtained from Juror No. 11.
Shortly after the court denied that request, the following colloquy occurred:
“[The prosecutor]: Your Honor, I have one other request
that I probably know the answer to before I ask for it, but
the People’s second request in light of the fact the Court
has ruled against a recorded statement is that --
“[The court]: I haven’t ruled against a recorded statement,
I’m simply allowing the defense to conduct the interview as
he wishes. If everyone wants it recorded, then I’m not
prohibiting it.
“[The prosecutor]: My record is this, I believe that an
unrecorded statement by a defense investigator, if that is
going to be the basis for the motion, is unreliable and
untrustworthy considering that they have an opportunity
to record such a statement.

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 “[The court]: Let me stop you. I’m not ruling on a motion
for new trial right now. And if [defense counsel] is simply
going to submit declarations from jurors, I don’t believe
that’s going to be sufficient. It’s most likely going to be
inadmissible hearsay.
“[Defense counsel]: Correct, and just I plan on subpoenaing
the . . . jurors as witnesses, and then I kind of went too
quick the last time, but it was just -- yes, I don’t plan on
doing a declaration. And just so counsel is aware, if the
juror -- any juror we interview will allow us to tape record
them, I will always -- my standing order is to get a tape
recorded statement, but the juror -- we do -- I do believe it’s
proper to advise them you don’t have to have it recorded,
we would like to record it to make sure we are accurate.
And if they say no, then we go with the interview without
that.
“[The court]: So I just want to clarify, I’m not -- in this
hearing, I’m not stating that any declaration from a juror is
going to be admissible on a motion for new trial.”
Shortly thereafter, the following colloquy occurred:
“[Defense counsel]: Whatever person I interview, I always
say -- tell them that -- not that I ever interview, I might sit
in a few, but on jurors, I’m not even there. My investigator
goes there and requests permission to talk to them and tell
them they don’t have to.
“[The court]: Anything else, [Mr. Prosecutor]?
“[The prosecutor:] Is it defense’s anticipation to subpoena
the witness or the juror in any event or --
“[The court]: Well, as I just ruled or indicated what my
ruling will most likely be, a hearsay statement is not going
to be admissible evidence, [sic] a motion for new trial. So
the only way I can foresee testimony would be from a live
witness, that being the juror. Then most likely, I assume,
[defense counsel], if he believes that juror’s testimony is
relevant would [sic] subpoena them [sic] for motion for new
trial.
“[Defense counsel]: Correct.”

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 f. Johnson’s motion for new trial
In November 2019, Johnson filed a motion for new trial based on
alleged juror misconduct. In his motion, Johnson argued that, “[a]fter the
trial, at least [two] jurors have stated that the jurors were speaking in the
deliberation room about the defendant not testify[ing] and wanted to know
why he didn’t testify.” Johnson also stated that one juror “made it very clear
that [other jurors] were trying to convict the defendant because of his skin
color.” Johnson stated that this juror indicated that “the jurors had no
problem talking race.”
Together with the motion for new trial, Johnson lodged a declaration
from defense counsel that stated in relevant part:
“On March 6, 2019, the jurors returned a verdict of guilty
against [Johnson]. While the verdict was read, a few jurors
seemed upset. After seeing the juror [sic] was so upset the
defense investigator went to contact some jurors. [¶] In
speaking with Juror [No. 2], he made a number of startling
statements regarding the subject of their deliberations.
First, he stated that he was appalled by some of the
behaviors and views of the jurors. He stated that some of
the jurors decided Mr. Johnson was guilty before starting
deliberations because of the color of Mr. Johnson’s skin.
Also some of the jurors stated they were prejudiced against
Mr. Johnson because of the color of his skin. Additionally,
the jurors discussed and considered the fact Mr Johnson
did not testify.
“Attached as an exhibit in this motion is a declaration
of the [defense] investigator . . . who interviewed Juror
[No. 2].
“Juror [No. 2] did not sign a sign declaration but was
subpoenaed to testify to court on 11-22-19.
“The [i]nvestigator also interviewed another juror after the
release of the juror’s name and that juror stated that the
jury discussed in depth that the defendant did not testify.

14
 The juror was also subpoenaed to come to court on 11-22-
19.”
Johnson attached the defense investigator’s declaration pertaining to
the investigator’s interview of Juror No. 2 in May 2019. (See pt. III.A.1.a,
ante.)
g. The People’s opposition
The People filed an opposition to the motion for new trial. In their
opposition, the People argued that case law established that nonjuror
affidavits, even if they purport to be based upon statements made by a juror
or other percipient witness, cannot support an effort to overturn a jury’s
verdict. In addition, the People argued that case law established that a trial
court does not abuse its discretion in denying a defendant’s request for an
evidentiary hearing on a motion for new trial based on juror misconduct
when the evidence proffered in support of the motion constitutes hearsay.
Thus, the People argued that Johnson had made an insufficient showing to
support either the holding of an evidentiary hearing into possible juror
misconduct or the granting of the defendant’s motion for new trial. In
describing the insufficiency of Johnson’s motion for new trial, the People
argued:
“The defendant’s moving papers for a new trial did not
provide sworn affidavits from either of the jurors allegedly
interviewed by the defense. Any [unsworn], unreliable and
inadmissible hearsay statements are not a basis for a
finding [of] actual misconduct. The entire point of releasing
juror information is to allow the parties to contact
consenting jurors in order to obtain signed and sworn
affidavits to provide the court as evidence. Providing
affidavits would give the court admissible evidence to
consider whether misconduct actually took place. Since the
defendant failed to include any affidavits by any jurors this
court cannot make a finding that misconduct actually took
place.”

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 h. The November 22 hearing at which the trial court denied both
Johnson’s request for an evidentiary hearing on his motion for
new trial and the motion for new trial
The trial court held a hearing on Johnson’s motion for a new trial on
November 22.
At the outset of the hearing, defense counsel stated that he had issued
subpoenas to Juror No. 2 and Juror No. 11 to secure their presence at the
November 22 hearing. Defense counsel explained that the defense was
requesting an evidentiary hearing on the motion for new trial because both
Juror No. 2 and Juror No. 11 had informed the defense that the jury had
discussed Johnson’s failure to testify. Defense counsel contended that the
information obtained by the defense was “enough for the court . . . to conduct
an evidentiary hearing.”
With respect to the fact that Johnson had not lodged any juror
affidavits in support of the motion for new trial, defense counsel stated the
following:
“I was mindful of the last time we were here. We had this
discussion on the record regarding that competent evidence
for a hearing such as this is no longer a declaration or be
[sic] affidavits, that the witnesses are themselves; hence, I
subpoenaed in those two individuals with a good-faith
belief that they had information that would warrant a
motion or the court to consider a motion for a new trial.”
Immediately thereafter, the following colloquy occurred:
“[The court]: Before I hear from [the prosecutor], a few
questions for you, [defense counsel]. Juror No. 11, unless I
missed it, I didn’t see any written statement by anyone
regarding what Juror No. 11 supposedly said.
“[Defense counsel]: I did not submit only because -- and I
apologize to the court if I misunderstood. When we -- I did
put it in my declaration. [The defense investigator] did
interview him. [¶] I will tell the court as an offer of proof,

16
 that individual also said that numerous times, the fact my
client didn’t testify was brought up in front of the jury.
“After the last hearing when the court -- there was a
discussion on the record about having hearsay declarations,
I felt that the -- I got at least an indicated or an idea from
the court that we needed to hear from the people
themselves. Hence, that’s why I didn’t add that to it. I do
have a statement from [the defense investigator] regarding
what was said, but I did not file that statement.
“[The court]: Did Juror No. 11 verify that written
statement that [the defense investigator] wrote? Did he
declare under penalty of perjury that the statement is true
and correct?
“[Defense counsel]: We -- I did not ask for an affidavit from
the -- from the juror itself [sic]. This took place after the
hearing we talked about and there was a concern as to --
and [the prosecutor] brought up a concern about bringing in
what is [sic] hearsay statements, even an affidavit by the
witness. [¶] We interviewed the witness. He was
immediately subpoenaed or subpoenaed sometime
thereafter once the determination was he had anything of
value.
“[The court]: And, additionally, Juror No. 2 never
submitted an affidavit under oath?
“[Defense counsel]: That is correct, your honor. I will tell
the court on Juror No. 2, we did go out after he was
interviewed. He expressed a desire not to be
contacted anymore. And so immediately upon being told
that, my investigator -- I’ve instructed my investigator that
if a juror were to say don’t contact, immediately to leave.
The only further contact they had was to subpoena, and
that’s the only other contact. So we didn’t even attempt to
get an affidavit any further once they said no.”
The prosecutor argued that the defense had ample time to submit juror
declarations in support of its motion for new trial and had failed to do so.
The prosecutor argued further that case law established that “an evidentiary

17
hearing is not a matter of right,” and that the defense had presented nothing
to the court that justified holding such a hearing.
After further argument from the defense, the trial court denied the
request for an evidentiary hearing and denied the motion for new trial. The
trial court ruled:
“The court rendered its verdict on the priors that were
alleged on March 13, 2019. [The] [d]efense has had since
that time to fully investigate and put forth evidence as to
why there should be a new trial in this case, which included
more than enough time to interview the jurors in this case
who wish to be interviewed, to gather statements from
those jurors, to gather affidavits from those jurors if they
were willing to swear under penalty of perjury that their
statements to the investigator were true. [¶] The defense
has failed to present any affidavits from any jurors in this
case.
“The defense has only presented one actual written
statement from [the defense] investigator . . . regarding
Juror No. 2. No written statement regarding what Juror
No. 11 allegedly said has ever been provided to the court,
either sworn or unsworn.
“So first I will turn to the statement that Juror No. 2
allegedly made to [the] investigator . . . , one or two
statements that the juror allegedly made. Quote, ‘the older
white female jurors had already decided the defendant was
guilty based on his skin color,’ unquote, and, quote, ‘he
refused to side with the others who were being prejudiced
and trying to convict a man based on his skin tone,’
unquote.
“In this case, the defendant is clearly a fair-skinned white
male. Those alleged statements by that juror make no
sense. They are not believable.
“The incredibleness of those statements taint any other
statements that the juror may have allegedly made to [the]
investigator . . . , and I do not find his statement made to

18
 [the investigator] to be believable on its face just from
reading the written statement of [the investigator] alone.
“Additionally, as previously stated, [J]uror No. 2 did not
verify that his statements to [the investigator] were true.
“Turning to Juror No. 11 who allegedly made a statement
to [the investigator] at some point in time, we have no
written statements. We have [defense counsel] stating in
his declaration allegedly what Juror No. 11 stated to [the
investigator] in a statement. That is woefully inadequate
and obviously not a verified statement under oath.
“The court finds that what the defense has presented thus
far is woefully inadequate for the court to go forward with
any type of evidentiary hearing, despite the fact that one of
the jurors, Juror No. 2, was subpoenaed and is present in
the courthouse.
“The defense has failed to present any admissible evidence
demonstrating a strong possibility that prejudicial
misconduct has occurred in this trial. Therefore, the court
denies the defense motion for a new trial. And I also quash
any subpoenas that were previously issued to the jurors in
this case.”
2. Governing law and the applicable standards of review
a. The law governing a defendant’s request for an evidentiary
hearing on a motion for new trial based on juror misconduct
“ ‘The trial court has the discretion to conduct an evidentiary hearing to
determine the truth or falsity of allegations of jury misconduct, and to permit
the parties to call jurors to testify at such a hearing. [Citation.] Defendant is
not, however, entitled to an evidentiary hearing as a matter of right. Such a
hearing should be held only when the court concludes an evidentiary hearing
is “necessary to resolve material, disputed issues of fact.” [Citation.] “The
hearing should not be used as a ‘fishing expedition’ to search for possible
misconduct, but should be held only when the defense has come forward with
evidence demonstrating a strong possibility that prejudicial misconduct has

19
occurred. Even upon such a showing, an evidentiary hearing will generally
be unnecessary unless the parties’ evidence presents a material conflict that
can only be resolved at such a hearing.” ’ ” (People v. Peoples (2016) 62
Cal.4th 718, 777.)
With respect to the type of evidence that will trigger a trial court’s duty
to conduct an evidentiary hearing into potential juror misconduct, the
California Supreme Court has repeatedly held, “ ‘Hearsay evidence offered in
support of a new trial motion that is based on alleged jury misconduct
ordinarily is insufficient to establish an abuse of discretion in either denying
the motion or declining to conduct an evidentiary hearing.’ ” (People v. Mora
and Rangel (2018) 5 Cal.5th 442, 517 (Mora and Rangel); see, e.g., People v.
Manibusan (2013) 58 Cal.4th 40, 55 (Manibusan); People v. Dykes (2009) 46
Cal.4th 731, 810; People v. Hayes (1999) 21 Cal.4th 1211, 1255 (Hayes).) In
Mora and Rangel, the Supreme Court described the court’s prior decisions
establishing this principle:
“As we acknowledged in Hayes and have reiterated many
times, hearsay is ordinarily ‘not sufficient to trigger the
court’s duty to make further inquiries into a claim of juror
misconduct.’ [Citation.] In Hayes, because the only
evidence of juror misconduct was the statement of counsel
regarding purported out-of-court statements by a juror who
did not herself provide any declaration, we concluded the
trial court did not abuse its discretion in denying a motion
for a new trial.” (Mora and Rangel, at pp. 517–518.)
In Manibusan, supra, 58 Cal.4th at page 59, the defendant offered a
defense investigator’s sworn declaration in which the investigator “stated in
relevant part: (1) Juror No. 58 ‘told [the investigator] that jurors talked
about the fact the defendant did not testify’ and (2) Juror D.S. ‘stated that
jurors discussed the fact that defendant . . . did not testify.’ ” In concluding
that the trial court had not abused its discretion in declining to conduct an

20
inquiry into such misconduct, the Manibusan court succinctly reasoned, “The
defense investigator’s declaration is hearsay, which, as earlier explained,
ordinarily is insufficient to establish an abuse of discretion in denying a
motion for new trial or conducting in evidentiary hearing based on alleged
jury misconduct. [Citation.] Again, defendant offers no persuasive basis for
deviating from this general rule.” (Ibid.)
“ ‘We review for abuse of discretion the trial court’s denial of
defendant’s postverdict request for an evidentiary hearing into allegations of
jury misconduct.’ ” (People v. Avila (2006) 38 Cal.4th 491, 604.)
b. Section 1202
Section 1202 provides in relevant part:
“If the court shall refuse to hear a defendant’s motion for a
new trial or when made shall neglect to determine such
motion before pronouncing judgment or the making of an
order granting probation, then the defendant shall be
entitled to a new trial.”
We assume for purposes of this decision that we apply the de novo
standard of review with respect to whether the trial court “refuse[d] to hear
[the] defendant’s motion for a new trial,” within the meaning of section

1202.7
3. Application
a. The trial court did not abuse its discretion in denying
Johnson’s request for an evidentiary hearing on his motion for
new trial based on juror misconduct
Citing some of the case law discussed ante, Johnson acknowledges that
“unsworn hearsay is not sufficient to trigger an evidentiary hearing on an
allegation of juror misconduct.” However, he contends that that the “unusual

7 Neither party has cited, and our own research has not revealed, any
case law with respect to the applicable standard of review as to this issue.
21
facts and circumstances of this case,” required the trial court to “deviate from
the general rule.” In support of this contention, Johnson points to certain
statements that the trial court made at the September 30 hearing that he
claims “led defense counsel to believe [he] was not required to support
[Johnson’s] new trial motion with juror affidavits or declarations.”
Specifically, Johnson argues that the “the trial court stated, on the
record, that it did not believe juror declarations would be sufficient to support
the motion.” The specific statements from the trial court on which Johnson
appears to be relying are the following:
“I’m not ruling on a motion for new trial right now. . . . [I]f
[defense counsel] is simply going to submit declarations
from jurors, I don’t believe that’s going to be sufficient. It’s
most likely going to be inadmissible hearsay”; and
“I’m not stating that any declaration from a juror is going
to be admissible on a motion for new trial.” (See pt.
III.A.1.e, ante.)
In other words, the trial court stated that juror declarations likely
would not constitute a sufficient basis for the court to grant a new trial and
that juror declarations might not be admissible to support a motion for a new
trial. Johnson fails to establish that either statement is legally incorrect or
improper.
In fact, both statements are legally correct. The defense’s submission
of juror declarations would not necessarily entitle Johnson to a new trial, or
even to an evidentiary hearing on a motion for new trial. (See, e.g.,
Manibusan, supra, 58 Cal.4th at p. 59 [trial court did not abuse discretion in
declining to hold evidentiary hearing on juror misconduct despite juror
declaration indicating that “the jurors discussed defendant’s failure to
testify”].) It is also clear that a juror’s declaration might be inadmissible on a
motion for new trial. (See id. at p. 57 [“Regarding Juror A.G.’s declaration, it

22
was inadmissible—and thus insufficient to establish an abuse of discretion—
insofar as it purported to state, or speculate on, the effect of the information
on his own and other jurors’ subjective reasoning processes.” (Evid. Code,

§ 1150.)].)8
Johnson also notes that, while discussing the defense investigator’s
interviewing of jurors, the prosecutor asked whether the defense would
“subpoena the witness or the juror” The trial court interrupted the
prosecutor and stated that the court had indicated that it was “likely” that “a
hearsay statement is not going to be admissible evidence, [on] a motion for
new trial,” and that the only testimony that the court could foresee hearing
would be from a juror. In addition, the trial court stated that it assumed that
if defense counsel “believes that [a] juror’s testimony is relevant [defense
counsel] would subpoena [the juror] for [a] motion for new trial.” However, at
no time did the court state that it would hold an evidentiary hearing on

8 Evidence Code section 1150 provides:
“(a) Upon an inquiry as to the validity of a verdict, any
otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict
improperly. No evidence is admissible to show the effect of
such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the
verdict or concerning the mental processes by which it was
determined.
“(b) Nothing in this code affects the law relating to the
competence of a juror to give evidence to impeach or
support a verdict.”

23
Johnson’s motion for new trial even in the absence of any juror declarations

attesting to instances of juror misconduct.9
With respect to the November 22 hearing on the motion for new trial,
while Johnson notes that defense counsel apologized if he “misunderstood,”
whether counsel should lodge “a statement from [the defense investigator],
regarding what [Juror No. 11] said,” any such misunderstanding does not
demonstrate reversible error. The law is plain that, even assuming that
defense counsel had submitted a statement from the defense investigator as
to Juror No. 11’s alleged statements, the trial court would not have been
obligated to hold an evidentiary hearing based on such a hearsay declaration.
(See, e.g., Mora and Rangel, supra, 5 Cal.5th at pp. 517–518.)
In addition, when the trial court asked defense counsel at the
November 22 hearing on the motion for new trial whether Juror No. 11 had
verified the statements attributed to him by the defense investigator, defense
counsel acknowledged, “I did not ask for an affidavit from the -- from the
juror itself [sic].” While defense counsel suggested that his decision not to
seek an affidavit from Juror No. 11 was based on the prosecutor’s expression

9 As recounted in part III.A.1.e, ante, the verbatim colloquy is as
follows:
“[The prosecutor:] Is it defense’s anticipation to subpoena
the witness or the juror in any event or --
“[The court]: Well, as I just ruled or indicated what my
ruling will most likely be, a hearsay statement is not going
to be admissible evidence, [sic] a motion for new trial. So
the only way I can foresee testimony would be from a live
witness, that being the juror. Then most likely, I assume,
[defense counsel], if he believes that juror’s testimony is
relevant would [sic] subpoena them [sic] for motion for new
trial.”

24
of “a concern about bringing in what [are] hearsay statements, even an [sic]
affidavit by the witness,” neither the prosecutor, nor the trial court, ever
stated that the defense would be entitled to an evidentiary hearing on a
motion for new trial absent admissible evidence of juror misconduct. In any
event, defense counsel could not have reasonably relied on the prosecutor’s
statements, particularly after the prosecutor filed an opposition to the motion
for new trial that stated the following:
“Additionally, the defense failed to provide a signed
affidavit from the consenting juror [No. 11] whose identity
was disclosed to only the defense. The purpose behind
disclosure of juror’s identities is to allow the parties the
opportunity to interview jurors and produce signed and
sworn affidavit[s] alleging misconduct. The defendant
failing to obtain a sworn affidavit from the consenting juror
then simply subpoenaing him to appear in court is nothing
more than the ‘fishing expedition’ that the [People v.
Hedgecock (1990) 51 Cal.3d 395] court sought to preclude.”
Because defense counsel did not submit juror declarations in support of
his request for an evidentiary hearing on his motion for new trial based on
juror misconduct, we conclude that the trial court did not abuse its discretion
in denying Johnson’s request for an evidentiary hearing on his motion.
b. The trial court did not refuse to hear Johnson’s motion for new
trial
Johnson argues, “[T]he trial court’s denial of the defense’s request for
an evidentiary hearing” was “tantamount to a refusal to hear the new trial
motion.” We disagree. For the reasons discussed in part III.A.3.a, ante, we
reject Johnson’s contention that the trial court’s comments at the September
30 hearing obligated the court to hold an evidentiary hearing on Johnson’s
motion for new trial. Further, as Johnson acknowledges on appeal, the trial
court expressly “denied” his motion for new trial.

25
 Accordingly, we conclude that the court did not “refuse to hear
[Johnson’s] motion for a new trial.” (§ 1202.)
B. Johnson has not established that defense counsel provided ineffective
assistance in failing to obtain and file juror affidavits in support of
Johnson’s motion for new trial
Johnson argues, in the alternative, that his counsel was “prejudicially
ineffective in failing to obtain and file juror affidavits for purposes of the new
trial motion based on juror misconduct.”
1. Governing law
To prevail on a claim of ineffective assistance of counsel, a defendant
must show: (1) counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and (2) the deficient
performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668,
689; People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) “On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to
provide one, or (3) there simply could be no satisfactory explanation.” (People
v. Mai (2013) 57 Cal.4th 986, 1009.)
2. Application
Johnson argues that “[n]o ‘plausible tactical explanation can be
conceived’ [citation] for defense counsel’s failure to follow the law and obtain
and submit the supporting declarations/affidavits.” Johnson’s claim fails
because he has not established that any jurors were willing to provide a
declaration or affidavit in support of his motion for new trial. With respect to
Juror. No. 2, at the August 2 hearing, defense counsel stated the following:
“[Juror No. 2] gave his information. I then prepared a
declaration. We went out and the juror basically did not
want to sign or be involved at all.”

26
 Johnson points to nothing else in the record establishing that Juror
No. 2 was willing to sign a declaration in support of Johnson’s motion.
Similarly, there is nothing in the record establishing that defense
counsel could have obtained a declaration from Juror No. 11 attesting to juror
misconduct. While defense counsel issued a subpoena for Juror No. 11 to
appear at the hearing on the motion for new trial, defense counsel indicated
that Juror No. 11 “was . . . not present.” Juror No. 11’s failure to appear in
court in response to a defense subpoena supports the inference that Juror
No. 11 was unwilling to provide testimony or a declaration in support of
Johnson’s motion for new trial.
Thus, a plausible basis exists in the record for defense counsel’s failure
to provide juror declarations or affidavits in support of Johnson’s motion for

new trial, i.e., the lack of any jurors willing to provide a declaration.10
Accordingly, we conclude that Johnson’s claim of ineffective assistance of
counsel fails because he cannot establish that defense counsel lacked a
rational basis for failing to support Johnson’s motion for new trial with juror
declarations or affidavits.
C. There is not substantial evidence in the record to support the trial court’s
true findings that three of Johnson’s prior Illinois convictions constitute
serious felonies under California law
Johnson claims that the trial court erred in concluding that his Illinois
aggravated robbery conviction in case No. 09CR0561101 and his Illinois
vehicular hijacking convictions in case Nos. 07CR0027601 and 09CR0562901
constitute serious felonies (§§ 1192.7 (c), 667, subd. (d)) for purposes of

10 Johnson does not suggest that any other juror was willing to provide a
declaration or affidavit in support of his motion for new trial.
27
California’s Three Strikes law (§§ 667, subds. (b)–(i); 1170.12) and serious
felony enhancement statute (§ 667, subd. (a)(1)).
1. Governing law
a. The Three Strikes law and the serious felony enhancement
statute
California’s Three Strikes law (§§ 667, subds. (b)–(i); 1170.12) and its
serious felony enhancement statute (§ 667, subd. (a)(1)) provide for enhanced
sentences for recidivist offenders. A defendant who has previously suffered a
conviction for a “serious felony” as defined in section 667, subdivision (d) and
section 1192.7, subdivision (c) is subject to an enhanced sentence under
certain circumstances. Robbery (§ 211) and carjacking (§ 215) are both
serious felonies. (§ 1192.7, subd. (c)(19) (robbery), (c)(27) (carjacking).)
With respect to prior convictions from jurisdictions other than
California, section 667, subdivision (d)(2) and section 1170.12, subdivision
(b)(2) provide that a “serious felony” includes:
“A prior conviction in another jurisdiction for an offense
that, if committed in California, is punishable by
imprisonment in the state prison constitutes a prior
conviction of a particular serious . . . felony if the prior
conviction in the other jurisdiction is for an offense that
includes all of the elements of a particular . . . serious
felony as defined in subdivision (c) of Section 1192.7.”
b. Case law pertaining to the determination of whether a prior
conviction constitutes a serious felony
In People v. McGee (2006) 38 Cal.4th 682 (McGee) disapproved of by
Gallardo, supra, 4 Cal.5th 120, the California Supreme Court considered the
manner by which a California sentencing court could determine whether a
defendant’s prior Nevada robbery conviction constituted a serious felony

28
under California law.11 The McGee court concluded that it was permissible
for the sentencing court to examine the record of the prior conviction and
“ascertain whether that record reveals whether the conviction realistically
may have been based on conduct that would not constitute a serious felony
under California law.” (McGee, at p. 706.)
In Gallardo, supra, 4 Cal.5th 120 the California Supreme Court
reexamined the scope of “judicial factfinding” permissible when a sentencing
court determines the nature or basis of a prior conviction for purposes of
considering whether to subject a defendant to an enhanced sentence. (Id. at
p. 136.) The Gallardo court concluded:
“The judicial factfinding permitted under the [Almendarez-
Torres v. United States (1998) 523 U.S. 224] exception [to a
defendant’s Sixth Amendment right to a jury trial] does not
extend ‘beyond the recognition of a prior conviction.’
[Citation.] Consistent with this principle, and with the
benefit of further explication by the high court, we now
hold that a court considering whether to impose an
increased sentence based on a prior qualifying conviction
may not determine the ‘nature or basis’ of the prior
conviction based on its independent conclusions about what
facts or conduct ‘realistically’ supported the conviction.
[Citation.] That inquiry invades the jury’s province by
permitting the court to make disputed findings about ‘what
a trial showed, or a plea proceeding revealed, about the
defendant’s underlying conduct.’ [Citation.] The court’s
role is, rather, limited to identifying those facts that were
established by virtue of the conviction itself—that is, facts
the jury was necessarily required to find to render a guilty
verdict, or that the defendant admitted as the factual basis
for a guilty plea.” (Id. at p. 136, italics added.)

11 The McGee court explained that the elements of robbery under Nevada
law differed from the elements of robbery under California law, including
that in Nevada “robbery requires only general criminal intent,” (McGee,
supra, at p. 688), while under California law, “robbery requires a specific
criminal intent to permanently deprive another person of property.” (Ibid.)
29
 In disapproving McGee, the Gallardo court stated, “We are persuaded
that the approach sanctioned in McGee is no longer tenable insofar as it
authorizes trial courts to make findings about the conduct that ‘realistically’
gave rise to a defendant’s prior conviction.” (Gallardo, supra, 4 Cal.5th at
p. 134.) Instead, as the Gallardo court explained, “[t]he trial court’s role is
limited to determining the facts that were necessarily found in the course of
entering the conviction.” (Ibid.)
c. Robbery and carjacking under California law
As the McGee court referenced, under California law, robbery requires
that a defendant have the specific criminal intent to permanently deprive
another person of property, among other elements. (McGee, supra, 38 Cal.4th
at p. 688, citing People v. Avery (2002) 27 Cal.4th 49, 52.) Carjacking, under
California law, requires that a defendant have the specific intent to
temporarily or permanently deprive the victim of possession of the vehicle,
among other elements. (People v. Magallanes (2009) 173 Cal.App.4th 529,
534.)
d. Robbery and vehicular carjacking under Illinois law
As the People forthrightly acknowledge, “[i]n Illinois, robbery is a
general intent offense; specific intent to permanently deprive is not an
element of the crime. (People v. Banks (1979) 75 Ill.2d 383, 385‒393 [388
N.E.2d 1244].)” (Italics added.) Aggravated robbery, under Illinois law, is a
robbery committed by various statutorily defined methods (see 720 Ill. Comp.
Stat. Ann. 5/18-1), and thus does not require proof of an intent to deprive.
The People also acknowledge that Illinois’s vehicular hijacking and
aggravated vehicular hijacking statutes “do not mention any intent to deprive
and Illinois courts have observed that, like the robbery laws, they

30
‘articulate[ ] no specific mental state.’ (People v. Aguilar (1997) 286
Ill.App.3d 493, 498 [676 N.E.2d 324].)”
2. Factual and procedural background
a. The allegations
In the second amended information, the People alleged that Johnson
had suffered the following four prior Illinois convictions, each of which
constituted a serious felony within the meaning of section 667, subdivision
(a)(1):
Prior Illinois Convictions Date of Case Number
Conviction
1. Attempted Armed Robbery12 08/09/2005 04CR1883101
2. Aggravated Vehicular Hijacking 01/19/2011 07CR0027601
3. Aggravated Robbery 01/19/2011 09CR0561101
4. Vehicular Hijacking 01/19/2011 09CR0562901

The People alleged that the same four convictions also constituted

strikes pursuant to the Three Strikes law (§§ 667, subd. (b)–(i), 1170.12).13
b. The People’s evidence
During a court trial on the prior conviction allegations, the People
offered fingerprint cards, certified court documents from Cook County,

12 As the trial court noted when rendering its findings on the prior
conviction allegations, the second amended information alleged two prior
convictions as the first serious felony prior. The court stated that it would
treat the attempted armed robbery conviction from case No. 04CR1883101
referenced in the text as the first alleged serious felony. As noted in part I,
ante, Johnson does not raise any challenge to the trial court’s strike and
serious felony findings as to the findings premised on the attempted armed
robbery conviction from case No. 04CR1883101.
13 For ease of reference, we refer to the priors as the first, second, third,
and fourth serious felony conviction allegations.
31
Illinois, and expert testimony, demonstrating that Johnson was the person
who had suffered the Illinois convictions.
The People also presented evidence concerning the facts underlying the
convictions. Specifically, with respect to the second, third and fourth serious
felony conviction allegations, the People offered in evidence a certified court
transcript of the plea colloquies during which Johnson pled guilty to
aggravated robbery (case No. 09CR0561101), aggravated vehicular hijacking
(case No. 07CR0027601), and vehicular hijacking (case No. 09CR0562901).
With respect to the second serious felony conviction allegation
pertaining to Johnson’s aggravated vehicular hijacking conviction in case No.
07CR0027601, the People presented evidence that Johnson stipulated to the
following as the factual basis for his plea: On November 25, 2006, Richard C.
(Richard) was working at a mall. Richard agreed to give Johnson and his
companion, Renee Goode and her infant daughter a ride. Johnson got into
the front passenger seat of Richard’s car; with Goode and the infant in the
backseat. Richard began to drive. After a while, Johnson told Richard to pull
over. Johnson took out a knife, pointed it at Richard’s chest, and ordered him
to empty his pockets. When Richard did, Johnson took the items that had
been in the pockets, including $20 in cash, and handed them to Goode. At
knifepoint, Johnson ordered Richard to get out of the car and threatened to
kill Richard. Johnson climbed into the driver’s seat and pushed Richard out
of the vehicle. Richard tried to hang on, but lost his footing and fell. Johnson
drove over Richard, breaking his wrist, and drove away. A few days after the
attack, Johnson led police on a high-speed chase in Richard’s vehicle before
being arrested.
With respect to the third serious felony conviction allegation,
pertaining to Johnson’s robbery conviction in case No. 09CR0561101,

32
Johnson stipulated to the following: On January 12, 2009, Christian R.
(Christian) was walking on the sidewalk when Johnson approached him.
Johnson asked Christian for money. When Christian replied that he did not
have any, Johnson said, “ ‘I got a fuck’n gun in my pocket. Either give me
your wallet or I’ll shoot you.’ ” In response, Christian gave Johnson his
wallet, which contained between $20 and $24. Johnson directed Christian to
keep walking away.
With respect to the fourth serious felony conviction allegation,
pertaining to Johnson’s vehicular hijacking conviction in case No.
09CR0562901, the factual basis for Johnson’s plea included the following:
Steven B. (Steven) was driving his car when he picked up Johnson. Johnson
convinced Steven to drive Johnson to Johnson’s mother’s home. During the
drive, Steven stopped at an ATM and withdrew $60. Thereafter, Johnson
directed Steven to stop the car. Johnson removed the keys from the car, and
took the $60 from Steven while threatening to cut Steven with a knife.
Steven got out of the car. Johnson drove the car away without Steven’s
permission.
c. The trial court’s findings
The trial court found that Johnson was the person who suffered all of
the prior Illinois convictions. With respect to the second (case No.
07CR0027601) and third (case No. 09CR0561101) serious felony conviction
allegations, the trial court found that the record of conviction for the Illinois
priors demonstrated that the facts of the offenses included all of the elements
of section 211 (robbery). With respect to the fourth serious felony conviction
allegation (case No. 09CR0562901), the trial court found that the record of
conviction for the Illinois prior demonstrated that the facts of the offenses

33
included all of the elements of section 211 (robbery) and section 215,
subdivision (a) (carjacking). The trial court reasoned in relevant part:
“I will note . . . there was no direct, specific, explicit evidence
that mentioned two of the requisite elements in carjacking
and robbery, as the California statute lists those elements.
That would be for Penal Code Section 215(a), carjacking,
that the defendant took a motor vehicle that was not his
own, it was not specifically stated that the vehicle was not
his own; and . . . that when the defendant used force or fear
to take the vehicle, he intended to deprive the other person
of possession of the vehicle, either temporarily or
permanently.

“As to Penal Code Section 211, robbery, there was not
specific, explicit direct evidence as to the first element that
the defendant took property that was not his own; and
element 6, when the defendant used force or fear, he
intended to deprive the owner of the property permanently
or to remove the property from the owner’s possession for
so extended a period of time that the owner would be
deprived of a major portion of the value or enjoyment of the
property. However, the Court finds that the only
reasonable inference that can be drawn from the record of
conviction is that those elements were present in the
factual basis for each of the serious felony priors that have
been alleged, and therefore I do, as previously stated, find
that all the elements of the California statutes have been
met.” (Italics added.)
3. Application
In light of the law discussed in part III.B.1, ante, whether Johnson’s
Illinois convictions for aggravated robbery, aggravated vehicular hijacking,
and vehicular hijacking qualify as serious felonies under California law is
dependent on whether the trial court properly found that each conviction
constitutes a robbery (§ 211) and/or a carjacking (§ 215) under California law,
both of which are serious felonies. (See §§ 667, subd. (d), 1170.12, subd. (b).)

34
 None of the Illinois offenses of which Johnson was convicted at issue
required proof of that he had any specific intent. (See pt. III.C.1.d, ante.) In
contrast, in California, both robbery and carjacking require proof that a
defendant harbored a requisite specific intent. (See pt. III.C.1.c, ante.)
Specifically, with respect to robbery, there must be proof that the defendant
intended to permanently deprive another person of property (see McGee,
supra, 38 Cal.4th at p. 688), and with respect to carjacking, there must be
proof that the defendant intended to temporarily or permanently deprive the
victim of possession of the vehicle (see Magallanes, supra, 173 Cal.App.4th at
p. 534.) Thus, in Illinois, convictions for aggravated robbery, aggravated
vehicular hijacking, and vehicular hijacking can be based on conduct that
under California law would not be either a robbery or a carjacking and
therefore, would not qualify as a serious felony.
For example, if Johnson lacked the specific intent to deprive the victim
of his property due to intoxication, he could still be found guilty of the Illinois
offense of robbery (since robbery is a general intent crime in Illinois), but he
would not be guilty of a California robbery (since robbery is a specific intent
crime in California). (Compare People v. Rosas (Ill.App.Ct. 1981) 102
Ill.App.3d 113, 116 [stating that intoxication is not a defense to robbery
under Illinois law because it is a general intent crime] with People v. Page
(1980) 104 Cal.App.3d 569, 575 [“The crime of robbery requires a specific
intent to permanently deprive the owner of the property. [Citation] If the
jury believed appellant was too intoxicated to form the requisite intent, it
would be required to acquit him of that charge.”].)
The People do not contend otherwise. The People acknowledge that,
with respect to the Illinois and California robbery statutes in question, the
“elements are not the same.” Similarly, the People acknowledge that the

35
Illinois vehicular hijacking and California carjacking statutes differ given the
“the absence of the ‘intent to deprive’ element in the [Illinois] statute.”
The People argue instead that the plea colloquies of the prior
convictions demonstrate that Johnson had the requisite specific intent. For
example, with respect to the Illinois aggravated robbery conviction, the
People argue “[a]s the trial court found, it is clear from appellant’s ordering of
Christian to walk away at gunpoint that appellant intended to permanently
deprive Christian of his wallet.” With respect to the vehicular hijacking
convictions, the People argue that “the fact that [Johnson] drove away in the
vehicles, in both instances forcefully, shows that he intended to at least
temporarily, if not permanently, deprive the victims of possession of those
vehicles.” The trial court employed a similar analysis, stating that although
“direct, specific, explicit evidence . . . [of] two of the requisite elements in
carjacking and robbery, as the California statute lists those elements” was
lacking, the court “finds that the only reasonable inference that can be drawn
from the record of conviction is that those elements were present.”
While this reasoning is logical and in our view, eminently sensible
under the circumstances of this case, we are constrained to conclude that it
does not comport with the dictates of Gallardo. Even assuming that the trial
court was correct in stating that “only reasonable inference” from the Illinois
plea colloquies was that Johnson harbored the requisite intent under
California law, the Sixth Amendment as interpreted by Gallardo precludes a
California sentencing court from engaging in “ ‘judicial factfinding that goes
beyond the recognition of a prior conviction’ ” when considering whether to
impose an enhanced sentence. (Gallardo, supra, 4 Cal.5th at p. 134, italics
added in first quote.) Under Gallardo, “the court’s role is, rather, limited to
identifying those facts that were established by virtue of the conviction

36
itself—that is, facts the jury was necessarily required to find to render a
guilty verdict, or that the defendant admitted as the factual basis for a guilty
plea.” (Id. at p. 136, italics added.) There was no prior jury trial and there is
nothing in any of the plea colloquies from the prior convictions amounting to
admissions from Johnson as to his specific intent in committing any of the

Illinois offenses.14 This is unsurprising because Illinois law did not require
Johnson to have intended to permanently deprive the victim of his property
in order to be guilty of robbery or that Johnson have intended to temporarily
or permanently deprive the victims of their vehicles in order to be guilty of
vehicular hijacking.
While we have no quarrel with the reasonableness of the inferences
that the trial court drew based on the record of Johnson’s convictions, under
Gallardo, reasonableness is not the measure. (See Gallardo, supra, 4 Cal.5th
at p. 124 [“the court may not rely on its own independent review of record
evidence to determine what conduct ‘realistically’ led to the defendant’s
conviction” (italics added)].) Because there is nothing in any of the pleas
colloquies, nor in the records of conviction generally, specifying “that the
defendant admitted” (Id. at p. 136) having had the specific intent to deprive
— an intent not required to be found guilty under Illinois law — Gallardo
makes clear that there is not substantial evidence to support the court’s
findings that Johnson’s convictions meet the elements of robbery and
carjacking in California. We therefore are compelled to conclude that there is
not substantial evidence in the record to support the trial court’s true
findings that Johnson’s prior Illinois convictions in case Nos. 09CR0561101,

14 The People do not cite to any such admissions in their briefing on
appeal and our review of the record reveals no such admissions.
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07CR0027601 and 09CR0562901 constitute serious felonies under California
law for purposes of the strike and serious felony enhancement allegations.
Although Johnson requests that we vacate his sentence and remand for
resentencing upon reversal of the trial court’s true finding on the Illinois
prior convictions, we conclude that the People should be afforded the
opportunity to retry the reversed strike and serious felony enhancement

allegations if they are be able to obtain additional evidence15 and choose to
retry Johnson on the allegations. (See Gallardo, supra, 4 Cal.5th at p. 139
[reversing and remanding “to permit the People to demonstrate to the trial
court, based on the record of the prior plea proceedings, that defendant’s
guilty plea encompassed a relevant admission about the nature of [his]
crime”].)

15 The existence of such evidence would seem unlikely given that the
People have already submitted the plea colloquy transcripts, but we decline
to categorically preclude the People from retrying Johnson on the strike and
serious felony enhancement allegations.
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 IV.
DISPOSITION
The judgment is reversed with respect to the trial court’s true findings
on the strike and serious felony enhancement allegations pertaining to case
Nos. 09CR0561101, 07CR0027601 and 09CR0562901. The matter is
remanded to the trial court for the limited purpose of retrying the prior strike
and serious felony conviction allegations pertaining to case Nos.
09CR0561101, 07CR0027601 and 09CR0562901 if the People so elect, and
thereafter resentence Johnson. Following resentencing, the trial court shall
prepare a new abstract of judgment and forward a certified copy of the
abstract to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.

AARON, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

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