Filed 11/22/21 P. v. Jones CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B312503
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA081513
v.
JOHNNY JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Larry P. Fidler, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
A jury found Johnny Jones guilty of first degree murder
with special circumstances. Jones was sentenced to an
indeterminate term of life without the possibility of parole. A
different panel of this court affirmed the judgment in 1996.
(People v. Johnny Jones IV (Dec. 11, 1996, B090399)
[nonpub. opn.] (Jones I).) In this appeal, Jones challenges the
trial court’s 2021 order denying his petition for resentencing
under Penal Code1 section 1170.95. We affirm.
BACKGROUND2
Emigdio Garcia was a street vendor. He sold pork skins,
sodas, peanuts, fruit, and toys from a handcart he pushed on the
streets. Garcia carried a knife that he used in his business, to cut
string and fruit. The knife had a handle that made it look like a
gun. At about 11:00 a.m. on Monday, March 23, 1993, Garcia was
walking down Central, near 108th, heading towards a hamburger
stand. Garcia stopped for a red light then crossed the street.
Garcia noticed a group of people, including a woman and
two men, standing across from the hamburger stand. One of the
men was Jones. Garcia heard the woman’s voice say something
like, “Go to stealing.” As Garcia continued to push his cart down
the street, he heard someone walk up behind him. He turned and
saw Jones, who said, “Hey, hey, hold on.” Garcia stopped. Jones
1 All undesignated statutory references are to the Penal Code.
2On August 24, 2021, Jones asked us to take judicial notice of the
opinion in his direct appeal, and he references the facts set forth in
Jones I in his brief. We granted his request on August 31, 2021. Our
summary of the underlying facts is taken from Jones I.
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asked Garcia the price of the toy balloons, and Garcia said two
dollars. Jones said, “Give me one,” and took out a five-dollar bill.
As Garcia began to hand him the balloon, Jones pulled out a gun,
pointed it at Garcia’s stomach, and said, “Well, give me
everything you have.” Garcia did not have any money. He told
Jones he “had one too”, and he tried to defend himself. When
Jones put his hand down to grab Garcia’s knife, Garcia grabbed
Jones’s gun hand and began struggling with him on the ground.
As they struggled, a group of people gathered around them and
another man came up and began to kick Garcia in the head and
the chest. Garcia hung on to Jones’s gun hand. Garcia finally
managed to stop the assault by saying that he saw the police
coming.
Garcia ran across the street and towards the hamburger
stand, calling for help. When he went back across the street
again, Garcia saw Jones and the man who had been kicking him
pushing his vending cart away. As they did so, they and other
people began to steal things from the cart. Garcia then saw a red
car drive up and stop. A man, later identified as Jose Macias, got
out and confronted Jones. Macias had nothing in his hands when
he got out of the car; he held his hands up as he tried to
intervene. Jones walked towards Macias. Macias took an
umbrella from Garcia’s cart. Jones shot Macias several times,
from a distance of about six feet, and then he and his accomplice
ran off. Macias was killed by four gunshot wounds, two in the
head and two in the chest. At the time of the shooting, Jones and
his accomplice were at one end of the cart and Macias at the
other.
Garcia ran after Jones, but he stopped when he saw a
patrol car coming. Jones was captured after a short chase. Police
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found a handgun in his pocket and arrested him. While he was on
the ground, Jones said to one of the officers, “Yeah, big man, I
fucked up.” As Garcia was giving information to police, a car
drove up and Jones was taken from the rear seat and transferred
to another car. As this happened, Garcia said in an excited tone,
“That’s him, that’s him.”
Following a jury trial in 1994, Jones was found guilty of
first degree murder. The jury determined that Jones willfully,
unlawfully, and with malice aforethought, killed Macias. The jury
also found true the allegations that Jones committed the murder
during a robbery and personally used a firearm. Jones was
sentenced to an indeterminate term of life without the possibility
of parole.
On April 5, 2021, Jones, representing himself, filed a
petition for relief and supporting documentation under section
1170.95. He alleged his murder conviction, under the felony
murder rule and natural and probable consequences doctrine, is
no longer valid under sections 188 and 189. On the second page of
his petition, Jones also alleged he was not the actual killer. On
the next page, however, Jones asserted that he killed Macias
accidently when Macias tried to take Jones’s gun “and the
firearm went off.” According to Jones, Macias’s killing was an
“ ‘Accident of Misfortune and/or Accidental Death,’ punishable
[as] involuntary manslaughter and/or manslaughter.” Jones
claimed his trial counsel was ineffective for failing to ask the
court to instruct on a lesser offense. Jones also claimed he was a
minor with the mental state of a child at the time of his
conviction. Although he did not expressly ask the court to appoint
him counsel, Jones stated “the office’s [sic] position is that
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defense counsel should be appointed when the petition is filed
and there should be no summary denial[ ] by the court.”
On April 14, 2021, the court summarily denied the petition
without appointing counsel to represent Jones. The court found
Jones was ineligible for relief because “[h]e can still be convicted
under current law as the actual perpetrator. It has been shown
beyond a reasonable doubt he acted with malice.”
Jones timely appealed from the April 2021 order. In his
notice of appeal—titled “Motion on appeal pursuant to Penal
Code section 42.18-A”—Jones stated that due to his adolescence,
and because Macias lunged at him during the robbery, Jones was
forced to kill Macias “out of the heat of passion” and in self-
defense.
On September 22, 2021, appointed counsel filed a brief in
which counsel raised no issues and asked us to review the record
independently under People v. Wende (1979) 25 Cal.3d 436. This
court notified Jones that his attorney had failed to find any
arguable issues and that he could submit by brief or letter any
arguments he wished this court to consider. We have not received
a response.
DISCUSSION
Guided by our Supreme Court’s recent opinion in People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), we conclude the trial court
erred by failing to afford Jones the assistance of counsel before
denying the petition. (Id. at pp. 961–970.) We further conclude
the error was harmless, as there is no reasonable probability that
had Jones been afforded the assistance of counsel, he would have
made a prima facie showing of eligibility for relief. (See id. at pp.
973–974.)
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In light of Jones’s admissions in his petition and notice of
appeal, and the jury’s verdict and findings, his first degree
murder conviction necessarily reflected a finding that Jones was
Macias’s actual killer. Because Jones was convicted as the actual
killer, he is ineligible for relief under section 1170.95 as a matter
of law. (See § 1170.95, subd. (a)(3) [petitioner is eligible for relief
only if, inter alia, “[t]he petitioner could not [now] be convicted of
first or second degree murder because of changes to Section 188
or 189 made [by Senate Bill No. 1437]”]; Lewis, supra, 11 Cal.5th
at p. 959 [“the Legislature passed Senate Bill 1437 ‘to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who [inter alia] is not the actual
killer’ ”].) Accordingly, the court’s denial of Jones’s request for the
appointment of counsel was harmless. (See Lewis, at pp. 973–
974.)
We have examined the entire record, and are satisfied
appellate counsel has fully complied with counsel’s
responsibilities and no arguable issues exist in the appeal before
us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; People v.
Wende, supra, 25 Cal.3d at p. 443.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
KNILL, J.*
* Judge of the Orange County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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