Filed 4/22/22 P. v. Johnson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B310165
Plaintiff and Respondent,
Los Angeles County
v. Super. Ct. No. TA095220
CEDRICK JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Clay Jacke II, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel Chang and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________
A jury convicted Cedrick Johnson and a codefendant of first
degree murder and attempted murder. Johnson filed a petition
for resentencing under Penal Code section 1170.95 and requested
appointment of counsel. Without appointing counsel, the trial
court denied the petition because Johnson “was not convicted of
murder pursuant to the felony murder rule nor the natural and
probable consequence doctrine.” The trial court erred in denying
the petition before appointing counsel, but the error was
harmless because the record of conviction establishes Johnson is
ineligible for relief as a matter of law. We affirm. Undesignated
statutory citations are to the Penal Code.
I
Johnson and codefendant Daniel Colvin were members of
the East Coast Crips gang. Early in the morning of January 27,
2008, East Coast Crips gang members shot several Grape Street
gang members, killing two. Grape Street gang members then
killed an East Coast Crips gang member in retaliation later that
morning. About an hour after that, a black Impala drove past a
housing project where two members of the Grape Street gang
were standing outside, stopping on its second pass. A man got
out of the front passenger side and fired several shots from a
semiautomatic gun at the two men. The bullets killed one of the
men and wounded the hand of the other.
Police saw a black car with a raised object on the trunk on
surveillance video from the housing project. They arrested Colvin
and impounded his black Impala with a raised object on the
trunk. Police arrested Johnson a few days later. During a search
of Johnson’s home, they found pictures of people making gang
signs, papers with East Coast Crips gang writing, and a printout
from the L.A. Times homicide blog about the killing of one of the
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Grape Street gang members on the morning of January 27. After
the arrests, police secretly recorded conversations Johnson and
Colvin had with each other and with other people. During these
conversations, each man made statements about being involved
in the shooting at the housing project.
A jury convicted Johnson and Colvin of first degree murder
and attempted murder. (§§ 187, subd. (a), 664, subd. (a).) In
connection with each charge, the jury found true that a principal
personally discharged a firearm causing death and that the crime
was for the benefit of or in association with a criminal street
gang. (§§ 12022.53, subds. (d) & (e)(1), 186.22, subd. (b)(1) & (2).)
The court sentenced Johnson to a total term of 50 years to life.
Johnson appealed. We affirmed. (People v. Johnson (Nov.
2, 2009, B212011) [nonpub. opn.].)
In 2020, Johnson filed a petition to be resentenced under
section 1170.95. He asked that counsel be appointed. The trial
court denied the petition without appointing counsel. The court
held Johnson “was not convicted of murder pursuant to the felony
murder rule nor the natural and probable consequences
doctrine.” Johnson appealed this order.
II
A
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) to limit the felony-murder rule and eliminate the
natural and probable consequences doctrine. (Stats. 2018, ch.
1015, § 4.) Senate Bill No. 1437 added section 1170.95, which
sets forth the procedure for a person to petition the trial court to
vacate a murder conviction and seek resentencing. (§ 1170.95,
subd. (a).) A person is eligible for this relief when: (1) the
prosecution filed a complaint, information, or indictment against
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the petitioner allowing the prosecution to proceed under a felony-
murder or natural and probable consequences theory; (2) a jury
convicted the petitioner of murder or attempted murder at trial,
or the petitioner accepted a plea offer instead of a trial at which
the jury could have convicted the petitioner of murder or
attempted murder; and (3) the petitioner could not now be
convicted of murder or attempted murder because of the
amendments to sections 188 and 189. (§ 1170.95, subd. (a), as
amended by Stats. 2021, ch. 551, § 2.)
The trial court reviews petitions to determine if the
petitioner has made a prima facie showing that meets the above
criteria. If a petitioner requests counsel, the trial court must
appoint counsel. (§ 1170.95, subd. (b)(3).) If the petitioner makes
a prima facie showing of entitlement to relief, the court must
issue an order to show cause. (Id., subd. (c).)
B
The trial court should have appointed counsel for Johnson
because he filed a facially sufficient petition and requested
counsel. (§ 1170.95, subd. (b)(3); People v. Lewis (2021) 11
Cal.5th 952, 963 (Lewis).) The prosecutor concedes this. We
affirm, however, because the error was harmless.
We evaluate a trial court’s failure to appoint counsel under
the harmless error standard set forth in People v. Watson (1956)
46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at p. 973.) In the
section 1170.95 context, this means Johnson must show it is
reasonably probable his petition would not have been summarily
denied without an evidentiary hearing if counsel had been
appointed. (Id. at p. 974.)
In determining whether a petition is facially sufficient, a
trial court should not engage in factfinding. (Lewis, supra, 11
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Cal.5th at p. 971.) But if the court’s own documents contain facts
contradicting those in the petition, the court may make a
credibility determination against the petitioner. (Ibid.) Where
the record shows the petitioner’s conviction was under a theory
unaffected by Senate Bill No. 1437’s amendments, the petitioner
is ineligible for relief as a matter of law. (People v. Mancilla
(2021) 67 Cal.App.5th 854, 866–867.)
The record shows Johnson is ineligible for relief as a matter
of law. The trial court did not instruct the jury on felony murder
or the natural and probable consequences doctrine. (People v.
Cortes (2022) 75 Cal.App.5th 198, 204–205 [petitioner ineligible
for relief where court did not instruct jury on any theory of
liability requiring malice be imputed to petitioner].) Counsel
could not have altered this conclusive fact.
Johnson argues this court cannot conduct an adequate
review because (1) the certified record contains only the charging
and sentencing documents and (2) the trial court’s denial does not
contain analysis, explanation, or reference to the record. Neither
contention is sound.
On the first issue, judicial notice solves the problem. The
prosecutor has asked us to take judicial notice of the record in
Johnson’s prior appeal. Johnson did not object to the request or
provide any reason why we should not do so. We grant the
request. This record includes the jury instructions given at trial,
establishing Johnson is ineligible for relief under section 1170.95
as a matter of law.
On the second issue, the trial court did state its reasoning:
Johnson did not qualify for relief because the jury did not convict
him under the felony-murder rule or natural and probable
consequences doctrine. Moreover, we may affirm on any ground
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supported by the record. (People v. Turner (2020) 10 Cal.5th 786,
807.) This record provides adequate information.
DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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