Filed 7/11/22 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081562
Plaintiff and Respondent,
(Super. Ct. No. BF100124A)
v.
GLENN MAURICE JOHNSON, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
Petitioner Glenn Maurice Johnson petitioned the trial court for resentencing on his
conviction for second degree murder. (Pen. Code,1 § 1170.95.) The court denied the
petition at the prima facie stage without providing a statement of reasons.
We conclude the record does not establish petitioner is ineligible for resentencing
as a matter of law, and the court therefore erred in denying the petition at the prima facie
stage. Accordingly, we reverse.
FACTUAL AND PROCEDURAL HISTORY
We previously summarized the facts underlying petitioner’s offenses as follows 2 :
“After an evening together at a dance club, Lamar [R. 3 ] and his cousin
Curtis [R.] drove to a convenience store and parked their cars nearby.
Lamar stayed outside while Curtis went inside to buy some water. After
Curtis saw people outside ‘scurrying around as if they were leaving
hastily,’ he and Lamar started back to their cars. In an alley along the way,
Curtis saw [petitioner] and [co-defendant Arthur] Lenix walking toward
them. He knew [petitioner], with whom he had played basketball a few
times and with whom Lamar had attended school. [Petitioner] looked as if
‘he had had a couple of drinks,’ so Curtis, on the way by, ‘patted him on
the chest, hey man, wake up.’
“Once [petitioner] and Lenix were behind Curtis and Lamar, Curtis
heard a metallic object hit the ground. Lamar turned around and told him
Lenix ‘dropped a .38.’ Curtis turned around and saw Lenix reach down and
put something in his waistband. Curtis said, ‘Let’s go.’ As soon as Curtis
and Lamar got back to their cars, Deshonta [G.] was standing there telling
them that some ‘East Side’ people were ‘tripping.’ That made no sense to
Curtis, since nobody he knew there was a gang member. Again, he said,
‘Let’s go.’ As he drove away, he saw [Deshonta] open Lamar’s car door.
1 Undesignated statutory references are to the Penal Code.
2 We quote from our nonpublished opinion in petitioner’s direct appeal to provide
context for the parties’ arguments. We do not rely on this factual summary to resolve the
issues presented in this appeal. (See § 1170.95, subd. (d)(3).)
3 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names. No disrespect is intended.
2.
After he turned around a corner, he saw that Lamar’s car was not behind
him. He backed up and saw that Lamar was still talking to [Deshonta].
“Suddenly Curtis saw ‘Lenix walk over and fire two, three shots’
into Lamar’s head. Lamar instantly fell in front of his car. [Deshonta] and
Lenix ‘hesitated for a split second’ and started walking away. Curtis
started driving toward them, intending to hit them with his car. Lenix
began firing the gun in his direction. [Deshonta] ran past his car. Another
car pulled out of a connecting alley and stopped. As Lenix opened the
passenger door, the car’s dome light and Curtis’s headlights illuminated the
interior of the other car. Curtis saw [petitioner] at the wheel. Lenix got in,
and [petitioner] drove away. In court, Curtis testified there was no doubt in
his mind that [petitioner] was the driver of the other car.” (People v.
Johnson (June 17, 2011, F055346) [nonpub. opn.], fn. omitted
(Johnson III).)
Petitioner was charged with first degree premeditated murder (§ 187, subd. (a);
count 1), conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a); count 2), and
being an accessory after the fact to murder (§ 32; count 5). As to each count, the
information also alleged a firearm enhancement (§ 12022, subd. (a)(1)), and a prior
prison term enhancement (§ 667.5, former subd. (b)). 4 A jury found him not guilty of
first degree murder, but guilty of second degree murder, conspiracy to murder, and
accessory to murder. The jury also found all three firearm allegations true. (People v.
Johnson (2004) 119 Cal.App.4th 976, 978 (Johnson I); see People v. Johnson (2006) 142
Cal.App.4th 776, 786 (Johnson II).) “On appeal after his first trial, we reversed the
judgment and ordered a new trial because the court’s erroneous instruction on reasonable
doubt impermissibly lowered the prosecution’s constitutional burden of proof.”
(Johnson III, supra, F055346; see Johnson I, at pp. 985-987.)
In his second trial, a jury again found petitioner guilty of second degree murder,
conspiracy to murder, and accessory to murder. (Johnson II, supra, 142 Cal.App.4th at
4 The information alleged additional charges, the disposition of which is not clear
from the record. However, petitioner was not convicted of the additional charges and
they are irrelevant to our analysis.
3.
p. 779.) “On appeal after his second trial, we reversed the judgment and ordered a new
trial because the prosecutor’s withholding of discovery about his sole eyewitness violated
Johnson’s constitutional right to due process.” (Johnson III, supra, F055346; see
Johnson II, at pp. 785-786, 789.)
In his third trial, a jury again found petitioner guilty of second degree murder,
conspiracy to murder, and accessory to murder, and found the arming allegations true as
to each count. In bifurcated proceedings, the court found the prior prison term allegations
true as to each count. On appeal after his third trial, we struck the arming enhancement
to count 3 and the prior prison term enhancements to counts 1 and 3 and otherwise
affirmed.5 (Johnson III, supra, F055346.)
On February 4, 2019, petitioner, proceeding in propria persona, filed a petition for
resentencing pursuant to section 1170.95. The People opposed the petition on two
grounds: petitioner’s conviction was not based on a felony-murder theory and Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) is unconstitutional. In their
brief, the People provided a short factual summary of the case but did not identify an
evidentiary source for those facts.
On May 30, 2019, petitioner, through the public defender, filed a second petition
for resentencing pursuant to section 1170.95. With the petition, petitioner submitted a
declaration stating that a complaint, information, or indictment was filed against him that
allowed him to be prosecuted under a theory of felony murder or murder under the
natural and probable consequences doctrine; he was convicted of second degree murder
at trial; and he could not now be convicted of second degree murder because of changes
made to sections 188 and 189, effective January 1, 2019.
5The prior prison term enhancements arose out of a conviction for possession of
cocaine base for sale (Health & Saf. Code, § 11351.5). (Johnson III, supra, F055346.)
The validity of the remaining prior prison term enhancement is not before us. (See
§ 1171.1.)
4.
On March 18, 2020, the court denied the People’s request to dismiss the petition
based on the unconstitutionality of Senate Bill No. 1437. On May 15, 2020, petitioner
filed a further response to the People’s opposition and submitted on the petition filed
February 4, 2019, in which petitioner denied being the actual killer.
On August 10, 2020, the trial court denied the petitions without providing a
statement of reasons.
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
the felony murder rule and the natural and probable consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-
murder rule, the bill 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 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
5.
indifference to human life, as described in subdivision (d) of Section
190.2.”6 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a
qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile,
at p. 843.) This procedure is available to persons convicted of “felony murder or murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or manslaughter.”
(§ 1170.95, subd. (a).)
“Section 1170.95 lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord,
People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
6Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
6.
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response
and the petitioner may file a reply. The trial court must then hold a hearing to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-
971.) However, the prima facie inquiry is limited and, at this stage of the proceedings,
the court “should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the
petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord,
§ 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 offer new or additional evidence to
meet their respective burdens. The admission of evidence at the hearing is governed by
the Evidence Code. However, the court also “may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
7.
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Record Does Not Establish Petitioner Is Ineligible for Resentencing
When this matter first was briefed, petitioner argued the trial court erred in looking
beyond his facially sufficient petition to resolve his eligibility for resentencing.
Thereafter, our Supreme Court issued its decision in Lewis, supra, 11 Cal.5th at pp. 970-
971, clarifying that a court may review the record of conviction to determine whether a
petitioner has stated a prima facie claim for resentencing eligibility. In supplemental
briefing, petitioner argues the record of conviction does not establish he is indisputably
ineligible for resentencing, as required to the deny petition at the prima facie stage. In
this regard, petitioner points out the only documents before the court were the parties’
briefs, and the only facts before the court were those contained in the factual summary
provided by the People, for which no evidentiary source was provided. In turn, the
People argue petitioner is ineligible for resentencing as a matter of law because his
conviction of conspiracy to commit murder establishes the jury found him guilty of
murder under an express malice theory, which remains valid after the passage of Senate
Bill No. 1437. However, petitioner points out he was not convicted of first degree
murder, but rather second degree murder, and the conspiracy conviction therefore cannot
establish he is ineligible for resentencing as a matter of law.
8.
Based on the foregoing, the dispositive question before us is whether petitioner’s
conviction for conspiracy to commit murder establishes he is ineligible for resentencing
as a matter of law.7 For reasons we explain, we conclude it does not.
“[C]onspiracy is a specific intent crime requiring an intent to agree or conspire,
and a further intent to commit the target crime, here murder, the object of the
conspiracy.” (People v. Swain (1996) 12 Cal.4th 593, 602.) As our Supreme Court has
explained, “ ‘all conspiracy to commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder.’ ” (People v. Beck and Cruz (2019) 8
Cal.5th 548, 641.) Here, however, petitioner was not convicted of first degree
premeditated murder. To the contrary, petitioner’s first jury acquitted him of first degree
premeditated murder. (Johnson I, supra, 119 Cal.App.4th at p. 978; see Johnson II,
supra, 142 Cal.App.4th at p. 786.) Each jury that has considered the case has convicted
petitioner of second degree murder. (Johnson I, at p. 978; Johnson II, at p. 779;
Johnson III, supra, F055346.)
We addressed the apparent inconsistency between the acquittal of first degree
murder and the conviction of conspiracy to commit murder in the appeal from
petitioner’s second trial. (Johnson II, supra, 142 Cal.App.4th at p. 786.) There,
petitioner argued his first jury had rejected the mental state of premeditation and
deliberation when it acquitted him of first degree murder, and thus retrial on the charge of
conspiracy to murder was barred by the double jeopardy clause. (Ibid.) We
acknowledged the inconsistency in the prior jury’s verdict, but declined to engage in
“ ‘pure speculation’ ” regarding the reason for the inconsistency, noting that “ ‘[a]n
7 In his supplemental reply brief, petitioner also argues the court erred in failing to
hold a prima facie hearing and in failing to issue a statement of reasons, as required under
Senate Bill No. 775 (2021-2022 Reg. Sess.) and recent amendments to section 1170.95,
subdivision (c). These arguments are moot in light of our disposition.
9.
inconsistency may show no more than jury lenity, compromise, or mistake.’ ” (Id. at
p. 788.)
Similarly, here, it would be “ ‘pure speculation’ ” to conclude the jury convicted
petitioner of second degree murder on a finding that he premeditated and deliberated the
murder. (See Johnson II, supra, 142 Cal.App.4th at p. 788.) The record before us
contains no admissible evidence regarding the underlying facts. (§ 1170.95, subd. (d)(3);
see People v. Flores (2022) 76 Cal.App.5th 974, 988 (Flores) [“[T]he factual summary in
an appellate opinion is not evidence that may be considered at an evidentiary hearing to
determine a petitioner’s eligibility for resentencing.”].) The jury instructions are not
contained in the record on appeal. (Compare People v. Whitson (2022) 79 Cal.App.5th
22, 31-33 [in light of modified jury instructions, conviction of conspiracy to commit
murder did not establish, as a matter of law, that the petitioner was convicted of murder
based on a jury finding of intent to kill], with People v. Medrano (2021) 68 Cal.App.5th
177, 182-186 [in light of jury instructions, conviction of conspiracy to commit murder
established, as a matter of law, that the petitioner was not convicted of murder under a
natural and probable consequences theory].) For purposes of resentencing eligibility, the
People effectively ask us to convert petitioner’s conviction of second degree murder to a
conviction of first degree premeditated murder, an offense of which petitioner was
acquitted. The record on appeal does not support such a finding, let alone permit us to
draw such conclusion as a matter of law.
In sum, petitioner adequately alleged a prima facie claim for resentencing and the
record does not rebut his allegations as a matter of law. The trial court was required to
issue an order to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the
prosecution bears the burden of proving petitioner’s ineligibility for resentencing beyond
a reasonable doubt, unless such hearing is waived (§ 1170.95, subd. (d)). In failing to do
so, the court erred. Accordingly, we must reverse and remand for further proceedings.
We express no opinion on the merits of the petition.
10.
DISPOSITION
The August 10, 2020 order denying petitioner’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order to show cause and to
conduct further proceedings as required under section 1170.95, subdivision (d), in light of
the principles set forth herein.
11.