People v. Johnson CA4/2

Filed 7/21/21 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075238

v. (Super.Ct.No. SCR44436)

JESSIE JOHNSON, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

Gregory L. Cannon, 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, Kristen Chenelia and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

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 INTRODUCTION

Defendant and appellant Jessie Johnson, Jr., appeals the denial of a petition for

resentencing under Penal Code1 section 1170.95, following an evidentiary hearing on an

order to show cause. Because substantial evidence supports the trial court’s finding that

he was ineligible for section 1170.95 relief, we affirm.

FACTUAL BACKGROUND

The factual background comes directly from the unpublished opinion we issued in

1988, affirming defendant’s convictions in People v. Johnson (Nov. 30, 1988, E004988).

“Defendant worked for his father in a truck tire business. Victim Virginia

Brackney made arrangements to have eight truck tires installed on her diesel truck for the

sum of $1,900. Defendant and codefendant Willie Harris, were dispatched to obtain the

tires, transport and mount them on the truck at the Brackney residence. Upon the pair’s

arrival, Mrs. Brackney went to the bank to obtain the $1,900 cash.

“Later that afternoon, the victim's daughter arrived at the family home to discover

her mother missing. Both defendants were at the residence and told the daughter her

mother had not returned from the bank. Noting both family vehicles at the residence, the

daughter became concerned and began contacting family and friends in an attempt to

locate her mother.

“After defendants left, the victim’s ex-husband searched a truck trailer on the

property and located the victim’s body in a wooden box. The victim had been beaten to

1 All further statutory references will be to the Penal Code unless otherwise
indicated.
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death with one or more hard metal objects. The following day, sheriff’s investigators

found the victim’s empty purse in a dumpster of a nearby 7-Eleven store. Both

defendants were interrogated. Each of them ultimately admitted being present at the

slaying, each saying the other did the actual killing. The motive according to each

defendant was robbery. Johnson also admitted he assisted the codefendant in cleaning up

the crime scene but denied participation in removing or hiding the body. Tire irons

which were taken from [the] defendants by investigators were examined by the

pathologist and determined to be capable of causing injuries consistent with the wounds

suffered by the deceased. In a search of [the] codefendant’s residence, investigators

recovered bloodstained pants. Upon chemical analysis, the blood was consistent with

that of the victim.”

PROCEDURAL BACKGROUND

On or about December 17, 1986, defendant entered a plea agreement and pled

guilty to second degree murder (§ 187, count 1) and robbery (§ 211, count 2). In

exchange, the People agreed to dismiss a deadly weapon enhancement (former § 12022,

subd. (b)) and run the sentence on count 2 concurrent. On December 4, 1987, a trial

court sentenced him to 15 years to life on count 1 and a concurrent five years on count 2,

pursuant to the plea agreement.

On January 25, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95, claiming entitlement to relief since he pled guilty or no contest to first or

second degree murder because he believed he could have been convicted of first or

second degree murder pursuant to the felony-murder rule or the natural and probable

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consequences doctrine, and he could not now be convicted of first or second degree

murder because of changes made to sections 188 and 189, effective January 1, 2019.

Defendant requested that counsel be appointed on his behalf. In its response to the

petition, the People filed a motion to strike the petition, arguing that Senate Bill No. 1437

was unconstitutional. The People later filed a letter contending that defendant failed to

set forth a prima facie case for relief. Defendant filed a reply brief and requested the

court to issue an order to show cause. Following a hearing on the petition, the trial court

found the petition established a prima facie case, issued an order to show cause, and

ordered a hearing to take place in accordance with subdivision (d) of section 1170.95.

The court held the evidentiary hearing, beginning on January 21, 2020. The

People argued that defendant was a major participant in the underlying felony and acted

with reckless disregard for human life. The prosecutor called codefendant Harris to

testify. Harris said he served 30 years in prison as a result of the incident in this case and

was paroled on June 3, 2016. He testified that on the day of the murder he was working

with defendant. He heard the victim tell defendant that they were to change eight tires

out, and she was leaving for the bank and would come back with the money to pay them.

Harris testified that, when the victim returned to the residence with the money, defendant

struck her with a tire iron, at least a couple times. Then Harris picked up a tire iron and

also struck her with it. He said she fell to the ground, but they did not know if she was

dead. They put her in a brown box to hide her body and then put the box in the back of

her semi-truck. They went back to wipe up the blood and sprayed water to clean it up.

After they cleaned up the area, they went to 7-Eleven and bought some beer. Then they

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returned to the victim’s house, and defendant had a conversation with the victim’s

daughter. He told her that they were supposed to fix the tires and that the victim left and

never came back. Harris further testified that, after they came back from 7-Eleven, the

only thing they said to each other was, “If you get caught, don’t mention my name. If I

get caught, don’t mention yours.”

On cross-examination, defense counsel confirmed with Harris that he had had six

parole hearings and asked if he told the parole board at his last hearing in 2016 that he did

not hit the victim with a tire iron. Defense counsel said Harris changed his statement at

every hearing, which Harris denied. Defense counsel had Harris read the transcript from

the last parole hearing in order to show him he did not admit to the board that he picked

up a tire iron and hit the victim. Harris said the parole board never asked him if he

picked up a tire iron. Defense counsel kept trying to get Harris to say that his statement

that he hit the victim was completely different than his previous statements, and that he

had been lying about what happened for 30 years.

The defense introduced into evidence the transcripts of several of Harris’s parole

review hearings. Throughout those hearings, Harris said he participated in the crime, but

asserted that defendant hit the victim with the tire iron. After defendant hit her, Harris

asked what he was doing, and defendant said he needed the money. Harris said he helped

by putting the victim’s body in the box and putting the box in the trailer.

The People moved into evidence the transcript from the preliminary hearing. At

that hearing, the pathologist who performed the autopsy on the victim’s body testified

that the victim received a minimum of 10 blows and died from multiple blunt injuries.

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He could not say which of the injuries caused her death, but the potential fatal blows

were to her head and abdomen. He further testified that these two injuries had to have

been inflicted with a large amount of force, similar to that of a grown man swinging a tire

iron like a baseball bat, with a full-strength swing. In addition, a bank teller testified that

the victim cashed a check for approximately $2,000 and told her the money was for some

tires. Furthermore, an employee of the 7-Eleven testified that he found the victim’s purse

behind one of the store’s dumpsters, and there was no money in it.

After reviewing the evidence, the court denied defendant’s section 1170.95

petition. In doing so, it issued a lengthy oral and written statement. The court began by

acknowledging that Harris’s statements about this murder had historically lacked

credibility since they “appeared less than candid regarding [his] own involvement.” It

noted that his testimony at the petition hearing significantly modified and added to the

story, with his admission that he personally participated in the beating that killed the

victim. The court opined that there was no reason for Harris to say defendant physically

attacked the victim unless it was true and that Harris persuasively claimed he had no

motive to falsely accuse defendant. The court further stated that it shared the public

defender’s concerns regarding Harris’s credibility and conceded that his testimony,

standing alone, might be insufficient to support its denial; however, it said that

defendant’s own actions “should not be overlooked and cannot be ignored.” The court

then stated:

“Harris’ uncontradicted testimony that both actually beat the victim is suggestive

that the incident did not just spontaneously erupt. It is undisputed the Defendant was

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present when the victim was beaten. . . . Defendant did not stop the beating after it

started, and Defendant did not render aid to the victim. Defendant could have summoned

medical aid but never did. From the evidence presented, Defendant was in a position to

at least try and prevent the victim’s death. Defendant’s choice to permit the victim to be

stuffed in the wood box (she may still have been alive) as opposed to calling the police

and summoning medical help is powerful circumstantial evidence the Defendant was not

just a bystander, and it corroborates Harris’ testimony Defendant was an actual

participant in the beating that killed the victim.”

The court further commented that defendant was instrumental in cleaning up the

crime scene, which it described as “a deceptive activity designed to avoid detection.”

The court also noted that defendant and Harris went to 7-Eleven and disposed of the

victim’s purse, which was another effort to avoid detection. Furthermore, defendant lied

to the victim’s daughter when he said they were waiting for the victim to return with the

payment. The court observed that defendant had multiple opportunities to alert others

that the victim had been beaten, including her daughter, her daughter’s friend who came

to see her daughter, the people at 7-Eleven, and his father. However, instead of telling

anyone what happened, defendant fabricated a story to avoid detection of the murder, and

he and Harris reached an agreement that if either was caught, neither was to mention the

other.

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 The court concluded by finding “by proof beyond a reasonable doubt that

Defendant Jesse Johnson, Jr.[2] is ineligible for resentencing.” It then denied the petition.

DISCUSSION

The Evidence Was Sufficient to Support the Court’s Finding That Defendant Was

Ineligible for Relief

Defendant contends the prosecution failed to prove beyond a reasonable doubt that

he was ineligible for resentencing under section 1170.95. He states that the issue before

this court is “whether substantial evidence supports the trial court’s finding that Willie

Harris . . . was credible in testifying that appellant precipitated and participated in the

killing of [the victim].”

He specifically claims that there was no credible evidence as to who committed

the killing and how it was done, since the only evidence came from previous statements

made by Harris and Harris’s testimony at the hearing on the petition. Defendant asserts

that “Harris was and is a self-serving liar . . . [and] [t]here is absolutely no reason to give

any credence to anything Harris said.” The People argue that substantial evidence

demonstrates that defendant was a major participant who acted with reckless disregard

for human life.3 The People further assert that defendant is essentially asking us to

reweigh Harris’s credibility, which we cannot do. We agree with the People.

2 Defendant’s first name is spelled alternately as “Jesse” and “Jessie” in the
record.

3 In the alternative, the People contend that there was substantial evidence that
defendant was the actual killer. However, since the court did not make that finding, we
decline to reach that issue.
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 A. Standard of Review

On appeal from a denial of relief following an evidentiary hearing under section

1170.95, subdivision (d), we review the trial court’s factual findings for substantial

evidence. (People v. Lopez (2020) 56 Cal.App.5th 936, 953-954, review granted Feb. 10,

2021, S265974.) Under that familiar standard, “ ‘we review the entire record in the light

most favorable to the judgment to determine whether it contains substantial evidence—

that is, evidence that is reasonable, credible, and of solid value—from which a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v.

Morales (2020) 10 Cal.5th 76, 88.) “ ‘We presume in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.

Whisenhunt (2008) 44 Cal.4th 174, 200.) “ ‘We do not reweigh evidence or reevaluate a

witness’s credibility.’ ” (Ibid.)

B. Senate Bill No. 1437

“Senate Bill 1437 ‘amend[ed] 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 participant in the underlying felony who acted with reckless indifference to

human life.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)

“To further that purpose, Senate Bill 1437 added three separate provisions to the

Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189,

subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying

felonies] in which a death occurs is liable for murder only if one of the following is

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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.’” (Gentile, supra, 10 Cal.5th at p. 842.)

“Second, to amend the natural and probable consequences doctrine, Senate Bill

1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony-

murder liability] 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.’ ” (Gentile, supra,

10 Cal.5th at pp. 842-843.)

“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those

convicted of felony murder or murder under the natural and probable consequences

doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra, 10

Cal.5th at p. 843.) “Section 1170.95 lays out a process for a person convicted of felony

murder or murder under a natural and probable consequences theory to seek vacatur of

his or her conviction and resentencing. First, the person must file a petition with the trial

court that sentenced the petitioner declaring, among other things, that the petitioner

‘could not be convicted of first or second degree murder because of changes to Section

188 or 189.’ (§ 1170.95, subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) Then, the trial

court must ‘review the petition and determine if the petitioner has made a prima facie

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showing that the petitioner falls within the provisions of th[e] section.’ (§ 1170.95,

subd. (c).) If so, the trial court must issue an order to show cause and hold a hearing to

determine whether to vacate the murder conviction and to resentence the petitioner on

any remaining counts. (§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution

must ‘prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’

(§ 1170.95, subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of

conviction or offer new or additional evidence to meet their respective burdens.’ ”

(Gentile, at p. 853.)

C. The Evidence Was Sufficient to Support the Court’s Finding That Defendant

Was Ineligible for Relief

In People v. Banks (2015) 61 Cal.4th 788 (Banks), the Supreme Court examined

the conduct for which an accomplice who lacks the intent to kill may be liable under

principles of aiding and abetting felony murder. (Id. at pp. 802-803.) The Court set forth

various considerations to determine the ultimate question of whether the defendant’s

conduct amounted to major participation “ ‘in criminal activities known to carry a grave

risk of death.’ ” (Id. at p. 803.) Those circumstances, posed as questions, include:

“What role did the defendant have in planning the criminal enterprise that led to one or

more deaths? What role did the defendant have in supplying or using lethal weapons?

What awareness did the defendant have of particular dangers posed by the nature of the

crime, weapons used, or past experience or conduct of the other participants? Was the

defendant present at the scene of the killing, in a position to facilitate or prevent the

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actual murder, and did his or her own actions or inaction play a particular role in the

death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted.)

The Court again addressed aiding and abetting principles under felony murder in

People v. Clark (2016) 63 Cal.4th 522 to consider circumstances in which an aider and

abettor harbors the requisite mental state (reckless indifference to human life) for felony

murder liability. (Id. at p. 615.) Those circumstances often overlap with those set forth

in Banks for major participation, and include the following: the number of firearms used

during the predicate crime (here, robbery), the defendant’s knowledge they would be

used, and whether the defendant used a firearm; the defendant’s presence during the

robbery and opportunity to restrain the crime or aid the victim; the duration of the

robbery; the defendant’s knowledge that one of his cohorts would likely kill; and the

defendant’s efforts, if any, to minimize the possibility of violence during the robbery.

(Id. at pp. 615, 618-623.) “ ‘[N]o one of these considerations is necessary, nor is any one

of them necessarily sufficient.’ ” (Id. at p. 618.)

Here, substantial evidence supports the trial court’s finding that defendant was a

major participant in the robbery and acted with reckless indifference to human life. We

note the court did not expressly find that defendant was a major participant and acted

with reckless indifference, but instead stated that the proof showed beyond a reasonable

doubt that he was ineligible for resentencing. However, in view of the court’s order, and

as the parties acknowledge, it is clear the court found he was a major participant. The

court pointed out that Harris’s testimony was uncontradicted that both he and defendant

beat the victim. It noted that defendant was present when the victim was beaten, she was

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hit with tire irons, defendant did not stop the beating after it started, and he did not render

aid to the victim. Furthermore, the court found he could have summoned medical help,

but never did. It found that defendant’s choice to permit the victim to be stuffed in the

wood box, as opposed to calling the police and summoning medical help, was “powerful

circumstantial evidence” that he was not just a bystander but an actual participant. The

court noted that the weapons of choice were tire irons, which were highly lethal when

“swung like a baseball bat” by grown men. Moreover, defendant cleaned up the crime

scene, which indicated he was trying to avoid detection of the crime, and he later lied to

the victim’s daughter when he told her they were still waiting for the victim to return with

the money. In addition, defendant showed a reckless indifference to life in that he had

multiple opportunities to tell others that the victim had been beaten, including the

victim’s daughter and the people at 7-Eleven. Instead of telling anyone what happened,

he covered up the crime and deceived others to avoid detection. Furthermore, he and

Harris agreed not to tell on the other person if they got caught.

Defendant does not contend that Harris’s testimony did not demonstrate that he

was a major participant and acted with reckless indifference to human life. Instead, he

argues the evidence was insufficient to support the trial court’s ruling since Harris’s

testimony was not credible. Defendant points to the magistrate’s finding at the

preliminary hearing that there was “barely sufficient” evidence to hold him to answer.

He cites multiple instances in which Harris’s testimony at the petition hearing was

inconsistent with his prior statements at past parole board hearings. He also points out

that the parole board commissioners opined Harris lacked credibility and lied about his

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part in the incident. Defendant then directs this court to “read the entirety of those parole

suitability hearings in order to get a true understanding of why nothing Harris has to say

about this offense should be given any credit.”

Defendant is essentially asking us to evaluate Harris’s credibility, discredit him,

and thereby find the evidence insufficient to support the court’s denial of his petition.

However, we cannot do so. “ ‘Conflicts and even testimony [that] is subject to justifiable

suspicion do not justify the reversal of a judgment, for it is the exclusive province of the

trial judge or jury to determine the credibility of a witness and the truth or falsity of the

facts upon which a determination depends. [Citation.] We resolve neither credibility

issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People v. Zamudio

(2008) 43 Cal.4th 327, 357 (Zamudio).)

Moreover, the court here was well aware of Harris’s past statements that may have

been inconsistent with his testimony at the hearing. It began its denial order by

acknowledging that his statements had historically lacked credibility since they “appeared

less than candid regarding [his] own involvement.” The court acknowledged that his

testimony at the hearing added the admission that he personally participated in the

beating that killed the victim. However, it opined that there was no reason for Harris to

say defendant physically attacked the victim unless it was true and that Harris

persuasively claimed he had no motive to falsely accuse defendant. In other words, the

court found his testimony credible having carefully considered all of the evidence and

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observing Harris’s demeanor at the hearing.4 The trial court thoughtfully performed its

duty to determine the credibility of the witness. Defendant contends that the trial court

was incorrect in finding there was no reason for Harris to lie in his testimony at the

hearing and that “nothing Harris has to say about this offense should be given any credit.”

At the same time, he argues the trial court did not actually credit Harris’s testimony;

otherwise, it would have concluded that defendant was the actual killer, and there would

have been no reason to find him guilty as a major participant. We respectfully disagree

with this assertion. It is clear that the trial court did credit Harris’s testimony having

determined that there was no reason for Harris to say defendant physically attacked the

victim unless it was true and that Harris persuasively claimed he had no motive to falsely

accuse defendant. It was the exclusive province of the trial judge to determine Harris’s

credibility “and the truth or falsity of the facts upon which a determination depends,” and

“[w]e resolve neither credibility issues nor evidentiary conflicts.” (Zamudio, supra, 43

Cal.4th at p. 357.)

Viewing the evidence in the light most favorable to the judgment, as we must, we

conclude there was sufficient evidence to support the court’s conclusion that defendant

was ineligible for resentencing under section 1170.95.

4 We note that “[i]t is well settled that ‘unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to support
a conviction.’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 281.) Nothing in Harris’s
testimony about what occurred appears to be physically impossible or inherently
improbable.
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 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

MILLER
Acting P. J.

SLOUGH
J.

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