People v. Johnson CA2/3

Filed 7/28/22 P. v. Johnson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B307427

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA007318)
v.

BILLY GEORGE JOHNSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Reversed and
remanded with directions.
Nancy J. King, 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, Assistant
Attorney General, Daniel C. Chang and Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
 Billy George Johnson appeals from the order denying his
petition for resentencing under Penal Code1 former section
1170.95 (now § 1172.6).2
Johnson raises several arguments on why the trial court
erred. Most pertinent, Johnson contends the record of conviction
cannot conclusively refute the possibility that he was convicted of
second degree murder under a theory where malice was imputed
based solely on his participation in a crime, which is no longer a
valid theory following passage of Senate Bill No. 775 (2021–2022
Reg. Sess.) (Senate Bill 775). We agree and reverse the order and
direct the trial court to issue an order to show cause and to hold
an evidentiary hearing in accordance with that section.
FACTUAL AND PROCEDURAL BACKGROUND
Johnson’s 1992 conviction.
Three principals were involved in the senseless slaying of
Jimmy Dawson: the instigator, the shooter and Johnson. The
shooting was instigated by codefendant Artie Gilbert when he
made an all too familiar gang challenge to Dawson and Sean
Rowe. Gilbert did not like Dawson’s response, so he punched
Dawson, knocking him to the ground. Gilbert escalated the
confrontation by calling for confederates to get a gun. and a third,
unidentified man, emerged from a nearby vehicle. Dawson and
Rowe fled, with the third man chasing after them firing a gun.
Tragically, Dawson was struck and killed by the gunfire.

1 All further statutory references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered
to section 1172.6, with no change in text. (Stats. 2022, ch. 58,
§ 10.)

2
 Arrest warrants were issued alleging that Gilbert
committed murder and willful, deliberate and premediated
attempted murder with a principal arming allegation, and
Johnson was an accessory after the fact to these crimes (§§ 187,
subd. (a), 664, 12022, subd. (a)(1), 32). By the time the jury trial
was held, Johnson was facing the same charges as Gilbert.
At trial, the prosecutor argued that the third man, who was
never apprehended, was the shooter and Gilbert and Johnson
were aiders and abettors. The jury was instructed on various
theories, including first degree murder, implied malice second
degree murder (CALJIC No. 8.31) and direct aiding and abetting
(CALJIC No. 3.01). The jury was not instructed on the felony-
murder theory or the natural and probable consequences
doctrine. The jury found Johnson and Gilbert guilty of first
degree murder and willful, deliberate and premediated attempted
murder, and found true the allegations that a principal was
armed with a firearm.
Johnson and Gilbert moved for a new trial pursuant to
section 1181, subdivision 6, or in the alternative, for a reduction
to second degree murder or manslaughter.3 At the hearing, the
trial court’s focus was on what acts, if any, did Johnson engage in

3 Section 1181, subdivision 6, provides in relevant part:
“When the verdict or finding is contrary to law or evidence, but if
the evidence shows the defendant to be not guilty of the degree of
the crime of which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may
modify the verdict, finding or judgment accordingly without
granting or ordering a new trial.”

3
demonstrating express malice.4 The trial court first ruled on
Gilbert’s motion. The trial court concluded that Gilbert’s conduct
after he unilaterally escalated the confrontation from a gang
challenge to a shooting demonstrated Gilbert’s express malice.5
In contrast, the trial court determined that because Johnson did
not engage in any further acts, he did not manifest express
malice. The trial court made the following comments:
Johnson “was not seen with a gun, we hear no words
spoken by Mr. Johnson. The only thing else we have with regard
to Mr. Johnson is the fact that he perhaps drove the car away.
[¶] . . . [¶] Now, with all of that, I cannot say that this evidence
supports a first degree murder conviction. I can see that it
supports a second degree murder conviction. His culpability is
not the same extent as Mr. Gilbert’s. His main problem was
driving the car, being in the car with the gun, knowing there was
a gun, walking outside—getting out of the car and driving away
with Mr. Gilbert after the shooting. But I think it’s a reasonable
inference that he knew, or had a reasonable expectation of

4 The court stated, “So let’s focus in on the actions
[Johnson] took. I think there’s different evidence in the record to
support the fact that [Johnson] was aiding and abetting the
initial confrontation. The initial encounter. The concern I have
is one that encounter, whatever it was, after the words git the gat
cuz were issued or uttered, what was [Johnson’s] involvement
from then on?”
5The court stated, “Now, as far as the specific intent or the
expressed malice is concerned with respect to Mr. Gilbert, I
think we can see that just from the actions from then on.”

4
knowing that there was going to be a shooting and that shooting
could in fact escalate into a death.”6
Instead of granting Johnson a new trial, the trial court
exercised its discretion to reduce Johnson’s convictions to second
degree murder and struck the willful, deliberate and premediated
finding as to the attempted murder charge. Johnson was
thereafter sentenced to 16 years to life.7
In 2019, Johnson filed a pro se petition for resentencing
pursuant to section 1172.6 as to his murder conviction.8
In 2020, the district attorney filed a response arguing that
Johnson was ineligible for relief because the jury was not
instructed on the felony-murder rule or the natural and probable
consequences doctrine. Appointed counsel filed four
supplemental petitions that included Gilbert’s parole hearing
testimony, Johnson’s statement recounting the details of the
incident, and a partial transcript of the motion for new trial

6 Johnson argues that this language demonstrates that the
trial court relied on the natural and probable consequences
theory for this reduction, while the Attorney General contends
this language is consistent with implied malice. As discussed
below, we need not resolve this dispute. Even assuming Johnson
was convicted of murder as an aider and abettor under an
implied malice theory as advanced by the Attorney General,
recent case law informs us that the standard jury instructions for
aiding and abetting implied malice murder are flawed.
7After Gilbert’s motion for a new trial was denied, he was
sentenced to 26 years to life.
8 Johnson’s attempted murder conviction was not a part of
his original petition.

5
where the trial court reduced the murder conviction to second
degree. On August 25, 2020, the trial court held a hearing. In an
oral pronouncement, the court summarily denied the petition:
“[T]his is not the normal run-of the-mill [1172.6] by any means.
Mr. Johnson was a co-defendant in a case that clearly co-
defendant Gilbert was clearly the aggressor in this situation and
ultimately resulted in the death of the victim. [¶] And, however,
as the People presented in their papers, ultimately the finding
under this statute is the court has to deny the petition because
the petitioner is not entitled to relief as a matter of law for the
following reason. And that he was not prosecuted under the
felony murder or murder under the natural and probable
consequences doctrines. The jury was not given the natural and
probable consequence[s] instruction. We do have the
instructions. . . . [¶] With that said, some of the discussions we
had is the equities seem a little out of balance is in the aggressor
is now out and free. He was paroled after his third parole
hearing.” 9
Thereafter, the trial court entered a written order
summarily denying the petition. In addition to repeating its
finding, that Johnson was not eligible for relief because the jury
was not instructed on the felony-murder rule and the natural and
probable consequences theory, the court also wrote that even if
Johnson was eligible for relief, the court would nonetheless deny
relief based upon its review of the facts as outlined in the original
appellate opinion.

9 Gilbert was paroled in 2016.

6
 DISCUSSION
The trial court’s denial of Johnson’s petition without
issuing an order to show cause is a purely legal conclusion, which
we review de novo. (People v. Murillo (2020) 54 Cal.App.5th 160,
167, review granted Nov. 18, 2020, S264978.)
Overview of section 1172.6.
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) narrowed accomplice liability for
murder under the felony-murder rule and the natural and
probable consequences doctrine. (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th
830, 842–843 (Gentile).) Specifically as to the issues raised here,
it eliminated the natural and probable consequences doctrine by
adding section 188, subdivision (a)(3), which states that malice
shall not be imputed to a person based solely on his or her
participation in a crime. (Gentile, at p. 843.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid felony murder or natural and probable consequences
theory may petition the trial court to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra,
10 Cal.5th at p. 843.) A petitioner is eligible for relief if he or she:
(1) was charged with murder by means of a charging document
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) was convicted of first or second degree murder; and
(3) could no longer be convicted of first or second degree murder
due to the changes to sections 188 and 189 effectuated by Senate
Bill 1437. (§ 1172.6, subd. (a).)

7
 If the petition contains all the required information,
including a declaration by the petitioner that he was convicted
of murder and is eligible for relief (§ 1172.6, subd. (b)(1)(A)),
section 1172.6, subdivision (c) requires the trial court to appoint
counsel to represent the petitioner, if requested; to direct the
prosecutor to file a response to the petition and permit the
petitioner to file a reply; and to determine if the petitioner has
made a prima facie showing that he is entitled to relief. (Lewis,
supra, 11 Cal.5th at pp. 959–960.)
“Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) While the
trial court must accept a petitioner’s allegations as true because
the prima facie evidentiary bar is low, the trial court may
properly engage in a limited examination of the record of
conviction so that the trial court can quickly dispose of petitions
that are “clearly meritless.” (Ibid.) Trial courts are to refrain
from engaging in “ ‘factfinding involving the weighing of evidence
or the exercise of discretion’ ” (id. at p. 972), because under the
current “framework the section [1172.6], subdivision (c) inquiry is
a test of the petitioner’s pleaded allegations, not an inquiry into
the truth of those allegations and the credibility of the evidence
on which they may rely” (People v. Davenport (2021)
71 Cal.App.5th 476, 483).
Thus, a trial court may deny relief at this stage only if the
court determines petitioner is ineligible for relief as a matter of
law. (Lewis, supra, 11 Cal.5th at pp. 971–972.) A petitioner is

8
ineligible for relief as matter of law only if the record of
conviction conclusively establishes that the petitioner was
convicted under a theory of liability that remains viable under
current law. (People v. Duchine (2021) 60 Cal.App.5th 798, 815.)
Senate Bill 775.
During the pendency of Johnson’s appeal, the Governor
approved Senate Bill 775, which further amended section 1172.6
effective January 1, 2022. In addition to expanding the list of
eligible crimes, the new legislation clarified the procedures, the
rules of evidence, and the burden of proof in adjudicating
resentencing petitions. Most germane to this appeal, the
following italicized text was added to section 1172.6,
subdivision (a), which we will refer to as the imputed malice
theory:
“A person 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 . . . may file a petition with the court that
sentenced the petitioner to have the petitioner’s . . . conviction
vacated.”10
Johnson’s eligibility for relief under section 1172.6 as
amended by Senate Bill 775.
After the original briefing was completed, this court
requested additional briefing on the impact of Senate Bill 775.11

10 The same italicized language was added to
section 1172.6, subdivision (a)(1).
11 In Johnson’s reply brief, which was filed shortly after the
effective date of Senate Bill 775, he contended that Senate
Bill 775 entitled him to an order to show cause as to his

9
Neither party seems to dispute that Johnson is entitled to the
ameliorative benefits of Senate Bill 775,12 however, they disagree
on the application of Senate Bill 775 to this case.
The Attorney General contends that Johnson’s jury was not
instructed on any “other theory under which malice is imputed”
and, therefore, the changes enacted under Senate Bill 775,
including resentencing on his attempted murder conviction, are
inapplicable here. In addition, the Attorney General maintains
that by adding the “other theory under which malice is imputed”
language, the Legislature only intended to make the text of
section 1172.6 consistent with previously amended section 188.13
Johnson responds that Senate Bill 775’s text amending
section 1172.6 established an additional basis for relief under
which he qualifies. Specifically, Johnson argues instructional
shortcomings in implied malice and aiding and abetting allowed
him to be prosecuted for murder under “[an]other theory under
which malice is imputed to a person based solely on that person’s

attempted murder conviction. This court, thus, gave the
Attorney General an option to brief Senate Bill 775’s application,
if any, on the issues in this case, and granted Johnson an
opportunity to file a response.
12 See People v. Garcia (2018) 28 Cal.App.5th 961, 973 (an
ameliorative criminal statute is generally presumed to apply to
all cases that are not final when the statute becomes effective)
and People v. Montes (2021) 71 Cal.App.5th 1001, 1006 to
1007 (applying Senate Bill 775 retroactively).
13 Senate Bill 1437 previously added similar language to
section 188, subdivision (a)(3): “Malice shall not be imputed to a
person based solely on his or her participation in a crime.”

10
participation in a crime.” Johnson adds that his attempted
murder conviction, which is now subject to resentencing following
Senate Bill 775, is also infirm for the same reason. Therefore,
Johnson argues, an order to show cause should issue as to both
convictions.

Two recent cases offer guidance in addressing the issues we
are confronted with here.
People v. Powell (2021) 63 Cal.App.5th 689 (Powell),
illuminated the inadequacy of the standard CALCRIM direct
aiding and abetting instructions for implied malice murder.
Powell involved the direct appeal of two defendants—Powell and
Langlois—convicted of second degree murder. Langlois
contended that his jury may have convicted him as a direct aider
and abettor under a legally invalid theory—implied malice
murder. Powell rejected the argument, in part. The Powell court
concluded a direct aider and abettor may lawfully be convicted of
implied malice murder; however, such a conviction could only be
upheld if the instructions were properly tailored.14 (Id. at
p. 714.)

14 Powell, supra, 63 Cal.App.5th at page 713 reiterated our
Supreme Court’s holding in Gentile that following the passage of
Senate Bill 1437, direct aiding and abetting implied malice
murder remains a valid legal theory. “[N]otwithstanding Senate
Bill 1437’s elimination of natural and probable consequences
liability for second degree murder, an aider and abettor who does
not expressly intend to aid a killing can still be convicted of
second degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life.” (Gentile, supra, 10 Cal.5th at p. 850.)

11
 Pertinent to the issues presented here, after dissecting the
actus rea and mens rea requirements for aiding and abetting and
the actus rea and mens rea for implied malice murder, Powell,
supra, 63 Cal.App.5th 689 identified a significant omission in the
standard aider and abettor instruction in the context of implied
malice. Powell began by explaining what the law requires. “The
mens rea, which must be personally harbored by the direct aider
and abettor, is knowledge that the perpetrator intended to
commit the act, intent to aid the perpetrator in the commission of
the act, knowledge that the act is dangerous to human life, and
acting in conscious disregard for human life.”15 (Id. at pp. 712–
713, fn. omitted.) Then, Powell, at pages 706 to 707, contrasted
the law with the actual text of CALCRIM No. 401—the aider and
abettor instruction.
“ ‘To prove that the defendant is guilty of a crime based on
aiding and abetting that crime, the People must prove the
following: [¶] 1. The perpetrator committed the crime.
[¶] 2. The defendant knew that the perpetrator intended to
commit the crime. [¶] 3. Before or during the commission of the

15 The Powell jury was instructed with CALCRIM No. 520,
which states: “ ‘There are two kinds of malice aforethought:
[¶] Express malice and implied malice. [¶] Proof of either is
sufficient to establish the state of mind required for murder.
[¶] The defendant acted with express malice if he unlawfully
intended to kill. [¶] The defendant acted with implied malice if:
[¶] 1. He intentionally committed an act; 2. The natural and
probable consequences of the act were dangerous to human life;
3. At the time he acted, he knew his act was dangerous to human
life and 4. He deliberately acted with conscious disregard for
human life.’ ” (Powell, supra, 63 Cal.App.4th at pp. 707–708.)

12
crime, the defendant intended to aid and abet the perpetrator in
committing the crime; and [¶] 4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission
of the crime. [¶] Someone aids and abets a crime if he knows of
the perpetrator’s unlawful purpose, and he specifically intends to
and does in fact aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.’ ” (Powell, supra,
63 Cal.App.5th at pp. 706–707.)
Powell noted, while CALCRIM No. 401 requires the aider
and abettor to have knowledge of the perpetrator’s intent to
commit a crime, the instruction fails to explicitly instruct the fact
finder that the aider and abettor must have thereafter acted with
conscious disregard for human life when aiding and abetting the
perpetrator’s act.16 (Powell, supra, 63 Cal.App.5th at p.714.)
Powell concluded that using such a flawed aiding and abetting
instruction as applied to implied malice is error.17 (Ibid.)
People v. Langi (2022) 73 Cal.App.5th 972, 975, 984
(Langi), in turn, applied the reasoning of Powell when reviewing
the denial of a section 1172.6 petition at the prima facie stage.
Langi was part of a group of four who punched, kicked and

16 Powell, supra, 63 Cal.App.5th 689 also observed another
subtle, but important discrepancy between the implied malice
and aider and abettor instructions. The implied malice
instruction refers to an act, whereas aiding and abetting refers to
a crime. This difference is significant because it too allowed a
jury to impute malice based solely on that person's participation
in a crime. (Id. at p. 714.)
17The Powell court found the error harmless. (Powell,
supra, 63 Cal.App.5th at p. 718.)

13
robbed the victim. During the attack, the victim fell, striking his
head, which eventually led to his death. (Id. at p. 975.) The jury
was instructed using the standard CALJIC instructions on first
degree felony murder, implied malice (CALJIC No. 8.31) (id. at
p. 981), and direct aiding and abetting (CALJIC No. 3.01) (ibid.),
but not on the natural and probable consequences theory. The
jury acquitted Langi of first degree felony murder but convicted
him of second degree murder, robbery and battery. (Id. at
p. 977.)
Langi filed a petition for resentencing under the original
version of section 1172.6. That petition was summarily denied.
(Langi, supra, 73 Cal.App.5th at p. 977.) During the pendency of
the appeal, Senate Bill 775 was passed.
The Langi court reversed and ordered an evidentiary
hearing on the merits of the section 1172.6 petition. (Langi,
supra, 73 Cal.App.5th at p. 976.) Langi found, even without
explicit instruction on the natural and probable consequences
theory, the record of conviction did not conclusively exclude the
possibility that Langi was convicted under Senate Bill 775’s
newly added imputed malice theory.18 (Ibid.)
In Langi, supra, 73 Cal.App.5th at page 972, the court
recognized the CALJIC instructions for aiding and abetting
implied malice murder suffered from the same shortcomings that
Powell found in the analogous CALCRIM instructions in that

18The Langi court assumed Langi was convicted as a direct
aider and abettor. Langi also addressed the trial court’s
erroneous reliance on factual statements contained within the
prior appellate opinion at the prima facie stage. (Langi, supra,
73 Cal.App.5th at pp. 979–980.)

14
they did not adequately explain the mens rea required for implied
malice murder liability. “Although the definition of second
degree murder in CALJIC No. 8.31[19] states that the perpetrator
must have acted with conscious disregard for human life, the
definition of an aider and abettor in CALJIC No. 3.01[20] does not
include the same requirement.” (Id. at p. 983.) More precisely,
the Langi court found the instructions lacked clarity because they
did not “state that the aider and abettor must himself have
known that the act he aided was life-threatening, or that he must
himself have acted with indifference to human life.” (Id. at
p. 982, italics added.)
Langi, supra, 73 Cal.App.5th at page 982, found this
instructional imprecision allowed the jury to find Langi “guilty of
aiding and abetting second degree murder” by imputing malice

19 CALJIC No. 8.31 states that a killing is a second degree
murder if: “1. The killing resulted from an intentional act,
[¶] 2. The natural consequences of the act are dangerous to
human life, and [¶] 3. The act was deliberately performed with
knowledge of the danger to, and with conscious disregard for,
human life. [¶] When the killing is the direct result of such an
act, it is not necessary to prove that the defendant intended that
the act would result in the death of a human being.” (Italics
added.)
20 CALJIC No. 3.01 states, in relevant part, that a “person
aids and abets the [commission] . . . of a crime when he or she:
[¶] (1) With knowledge of the unlawful purpose of the
perpetrator, and [¶] (2) With the intent or purpose of
committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice aids, promotes, encourages or
instigates the commission of the crime.” (Italics added.)

15
based solely on Langi’s participation in a crime, “without finding
that he personally acted with malice,” which was now prohibited
by Senate Bill 1437 and Senate Bill 775. Langi concluded that
such a record of conviction does not support summarily denying a
section 1172.6 petition at the prima facie stage. “[B]ecause the
record of conviction does not conclusively negate the possibility
that the jury found appellant guilty of second degree murder by
imputing to him the implied malice of the actual killer, without
finding that he personally acted” with implied malice, that is
“ ‘with knowledge of the danger to, and with conscious disregard
for, human life [citation],’ an evidentiary hearing [was] required.”
(Id. at p. 984.)

At the prima facie stage, the crucial question is whether
the record of conviction conclusively eliminates the possibility
that Johnson was found guilty of second degree murder on a
theory of liability that is no longer valid today.21
As a threshold issue, we agree with Langi that with the
addition of Senate Bill 775’s “other theory under which malice is
imputed” (§ 1172.6, subd. (a)) language, the lack of instruction on
the natural and probable consequences theory is not a categorical

21 Johnson’s initial petition fulfilled the three pleading
requirements of section 1172.6, subdivisions (a) and (b). Johnson
averred in his declaration that he: (1) was charged with murder
by means of a charging document that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (2) was convicted of
first or second degree murder; and (3) could no longer be
convicted of first or second degree murder due to the changes to
sections 188 and 189 effectuated by Senate Bill 1437.

16
bar for relief, rejecting the Attorney General’s argument to the
contrary.
We also join Powell’s and Langi’s assessment that the
standard CALCRIM and CALJIC jury instructions are flawed in
that they fail to explain the direct aider and abettor’s mens rea
for implied malice murder—conscious disregard for life. We
further agree with Langi’s interpretation of Senate Bill 775 that
a conviction obtained through such a faulty aiding and abetting
instruction qualifies as a conviction obtained under any “other
theory under which malice is imputed” (§ 1172.6, subd. (a)), and
in the context of evaluating a section 1172.6 petition, such a
record of conviction is insufficient to conclusively overcome the
prima facie showing.
The trial court here used the same ambiguous CALJIC
implied malice and aiding and abetting instructions as in Langi:
CALJIC Nos. 3.01 and 8.11. The instructions failed to explain
that in order to establish that Johnson personally acted with
implied malice, the fact finder needed to find that Johnson aided
the perpetrator’s act, with knowledge of the danger to, and with
conscious disregard for, human life. In the absence of such
precision, it is impossible to conclude that Johnson, as an aider
and abettor, personally harbored malice.
Since the trial court here employed the same infirm
CALJIC instructions that Langi criticized, we cannot conclusively
conclude, as a matter of law, that the trial court did not base its
judgment of conviction of second degree murder upon a theory of
liability that is no longer valid today.22 As in Langi, supra,

22 Without directly questioning the holding of Langi, the
dissent contends that Langi is inapplicable to the facts here.
(Dis. opn. post, at p. 5.) The dissent leans on People v. Coley

17
73 Cal.App.5th at page 984, “[b]ecause the record of conviction
does not conclusively negate the possibility that the jury found
appellant guilty of second degree murder by imputing to him the
implied malice of the actual killer, without finding that he
personally acted ‘with knowledge of the danger to, and with
conscious disregard for, human life,’ ” the trial court was
obligated to issue an order to show cause and conduct an
evidentiary hearing23 under section 1172.6, subdivision (d)(3).24
In Johnson’s reply brief and in supplemental briefing he
contends he is entitled to an order to show cause as to his

(2022) 77 Cal.App.5th 539 for support. The Coley panel noted
that Langi was limited to homicides founded on a theory of
implied malice. The defendant in Coley, however, was convicted
of second degree murder with express malice. (Id. at p. 547.) As
such, Coley concluded, “Langi does not apply because that case
involves implied malice.” (Ibid.) Here, on the other hand, the
Attorney General contends that Johnson’s conviction for second
degree murder is based on an implied malice theory. With this
concession, Coley’s distinction of Langi has no application here.
23 At that evidentiary hearing, the prosecution must
establish beyond a reasonable doubt that Johnson was “the
actual killer or that he was an aider and abettor who facilitated
the killing with personal disregard for human life.” (Langi,
supra, 73 Cal.App.5th at p. 984.) If the prosecution fails, Johnson
will be entitled to relief.
24 As such, we need not address Johnson’s other
contentions that even in the absence of instructions on the
natural and probable consequences theory, he was actually
prosecuted under the doctrine and that the trial court engaged in
factfinding.

18
attempted murder conviction as well. We agree with Attorney
General that this issue is not properly raised in this appeal
because Johnson did not first seek resentencing on his attempted
murder conviction in the trial court by filing a section 1172.6
petition.25 On remand, Johnson is free to file a 1172.6 petition
challenging his attempted murder conviction. If he chooses to file
such a petition and the trial court finds a prima facie case is
stated, it shall issue an order to show cause and hold an
evidentiary hearing. (§ 1172.6, subd. (d)(1).)26

25 At the time Johnson filed his original petition, by its
express terms, section 1172.6 as enacted by Senate Bill 1437, did
not provide relief for a petitioner convicted of attempted murder.
However, section 1172.6, subdivision (a), as amended by Senate
Bill 775, now provides for relief where the petitioner was
convicted of attempted murder. (§ 1172.6, subds. (a) & (a)(3).)
26 We would note the record of conviction for the attempted
murder is hardly clear. For example, the trial prosecutor
advanced several theories as to Johnson’s culpability to the jury
during his closing argument including: “[I]f there is any evidence
indicating . . . Johnson and . . . Gilbert assisted in any way or
instigated or encouraged or started this whole thing, with the
requisite mental [state], they’re guilty.” “However, if you believe
that [Johnson’s] mental state was one where he’s going to stop
the car to find out and—you know, if they are unfriendly gang
members, We’re just going to scare them out, or We have
somebody in the car. Go ahead and do the shooting, that would
be a second degree murder.” “[W]ould Jimmy Dawson be alive
today if . . . Johnson had stopped . . . —not stopped that car?
[¶] . . . [¶] I suggest to you that he would.” In addition, the
primary focus of the motion for new trial hearing was the first
degree murder conviction. Both the Attorney General and
Johnson agree the trial court rejected the jury’s finding that

19
 In closing, we acknowledge the very real challenges trial
courts have faced in evaluating section 1172.6 petitions with the
rapidly evolving status of the law. We further recognize that at
the time the order denying the petition was entered here in 2020,
the trial court did not have the guidance of case law on how a
trial court should determine whether a petitioner has made a
prima facie showing. Nor did the court have the benefit of
legislative amendments to section 1172.6 that have further
expanded the avenues for relief.

Johnson had express malice. The Attorney General asserts the
trial court found that Johnson had implied malice while Johnson
argues the court based its decision on the natural and probable
consequences doctrine. However, neither of those theories can
support a conviction for accomplice liability for attempted
murder. In People v. Bland (2002) 28 Cal.4th 313, 327, our
Supreme Court reiterated “that implied malice cannot support a
conviction of an attempt to commit murder.” Senate Bill 775 now
prohibits relying upon the natural and probable consequences
doctrine. However, we do not reach the merits on issues
involving the attempted murder conviction because we are
remanding, in part, to allow Johnson to file a petition challenging
this conviction.

20
 DISPOSITION
The order denying the Penal Code section 1172.6 petition is
reversed. The matter is remanded with directions for the trial
court to issue an order to show cause under section 1172.6,
subdivision (c) and hold a hearing pursuant to subdivision (d) as
to the murder conviction. On remand, Billy George Johnson may
file, and the trial court may consider, a petition challenging his
attempted murder conviction.
NOT TO BE PUBLISHED.

KALRA, J.*

I concur:

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

21
EDMON, P. J., Dissenting:
The majority concludes that the trial court erroneously
denied Billy Johnson’s petition for resentencing under Penal
Code1 section 1172.6. I believe that the petition was properly
denied because Johnson was ineligible as a matter of law.
Therefore, I respectfully dissent.
Artie Gilbert and Johnson were members of the same gang.
In 1990, the victims Jimmy Dawson and Sean Rowe had just left
a store when Rowe saw a car stop. Gilbert got of the car and
asked Dawson what gang he belonged to. When Dawson named
his gang, Gilbert said he didn’t get along with that gang and
punched Dawson. At trial, Rowe testified that after Gilbert
punched Dawson, Gilbert looked at the car and said, “get the gat,
cuz, get the gat,” referring to a gun. The driver, Johnson, had one
foot in the car and the other foot out, and he was looking under
the seat. Somebody—apparently not Johnson—got out of the car
and fired shots, killing Dawson. When the matter proceeded to
trial, the prosecution’s theory was that neither Gilbert nor
Johnson was the shooter and that a third man was the shooter.
In 1991, a jury found Gilbert and Johnson guilty of first
degree murder (§ 187, subd. (a); count 1) and of willful,
premeditated, and deliberate attempted murder (§§ 664, 187,
subd. (a); count 2) with true findings on principal gun use
allegations as to both counts (§ 12022, subd. (a)(1)). However, the
trial court granted Johnson’s motion for a new trial, reducing
Johnson’s murder conviction to second degree murder and
striking the willful, deliberate and premeditated finding as to the

1All further undesignated statutory references are to the
Penal Code.
attempted murder count. Accordingly, Johnson stood convicted of
second degree murder and attempted murder, and the trial court
sentenced him to 15 years to life on the murder count plus one
year for the firearm enhancement and sentenced him to a
concurrent term for the attempted murder.
In 2019, Johnson petitioned for resentencing under section
1172.6. The trial court denied the petition, finding that Johnson
had not made a prima facie case because he was not prosecuted
under a felony murder or natural and probable consequences
theory. It is undisputed that the jury was never instructed on
those theories, as the trial court refused to instruct on the
natural and probable consequences doctrine.
On appeal, Johnson initially took the position that
although the jury was not instructed on the natural and probable
consequences theory, the prosecutor argued that theory to the
jury, and therefore it was possible he was convicted under it.
Then, while the matter was pending on appeal, the Legislature
passed Senate Bill No. 775 (2021–2022 Reg. Sess.), which, as
relevant here, amended section 1172.6, subdivision (a), to apply
to “a person 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,” and to the crime of attempted murder
under the natural and probable consequences doctrine. (Italics
added.)
In supplemental briefing, Johnson contended that he was
convicted under a theory under which malice was imputed to him
based solely on his participation in the crime, that theory being
aiding and abetting second degree implied malice murder. That
theory, however, remains a valid theory of conviction,

2
notwithstanding Senate Bill No. 775. (See People v. Gentile
(2020) 10 Cal.5th 830, 847; People v. Powell (2021) 63
Cal.App.5th 689, 713 [aider and abettor who does not expressly
intend to aid a killing can be convicted of second degree murder if
person knows conduct endangers another’s life and acts with
conscious disregard].)
To support his argument that, notwithstanding that second
degree implied malice murder remains a valid theory, he was
convicted under an invalid theory of imputed malice, Johnson
relies on People v. Langi (2022) 73 Cal.App.5th 972 (Langi). In
that case, Langi and three other men beat the victim, who died
from head trauma after falling and hitting his head during the
assault. As here, Langi’s jury was not instructed on the natural
and probable consequences doctrine but was instructed with
CALJIC Nos. 3.01,2 regarding aiding and abetting, and 8.31,3

2 CALJIC No. 3.01 provides that a person aids and abets a
crime when the person (1) with knowledge of the perpetrator’s
unlawful purpose and (2) with the intent or purpose of
committing, encouraging, or facilitating the commission of the
crime, (3) by act or advice aids, promotes, encourages or
instigates the commission of the crime.

3 CALJIC No. 8.31 provides that murder of the second
degree is the unlawful killing of a human being when (1) the
killing resulted from an intentional act, (2) the natural
consequences of the act are dangerous to human life, and (3) the
act was deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life. When the killing is
the direct result of such an act, it is not necessary to establish

3
regarding second degree murder. Langi noted that although the
aiding and abetting instruction stated that a person aids and
abets a crime if the person acts with knowledge of the
perpetrator’s unlawful purpose and with the intent to commit or
encourage that crime, “the second degree murder instruction
specified that the direct perpetrator of that crime need not act
with the unlawful intent of causing death.” (Langi, at p. 982.)
The Langi court went on, “Thus, while the perpetrator
must have deliberately performed the fatal act ‘with knowledge of
the danger to, and with conscious disregard for, human life’
(CALJIC No. 8.31), his purpose may have been only to strike or to
injure, or conceivably only to embarrass, the victim. Since the
perpetrator’s purpose need not have been to kill the victim, the
aider and abettor’s knowledge of that purpose similarly need not
have been knowledge that the perpetrator aimed to kill. If the
perpetrator need not have had ‘murderous intent,’ certainly the
aider and abettor need not have had such an intent. Although
the definition of second degree murder in CALJIC No. 8.31 states
that the perpetrator must have acted with conscious disregard for
human life, the definition of an aider and abettor in CALJIC
No. 3.01 does not include the same requirement. Thus, under the
instructions that were given, the jury was entitled to conclude
that, to be guilty as an aider and abettor of second degree
murder, appellant need only have intended to encourage the
perpetrator’s intentional act—in this case, punching Martinez—
whether or not appellant intended to aid or encourage Martinez’s
killing, and whether or not he personally knew of and

that the defendant intended his act to result in the death of a
human being.

4
disregarded the risk of such a killing.” (Langi, supra, 73
Cal.App.5th at pp. 982–983.) Langi, at page 983, concluded that
the instructions should have been tailored to state that, to be
guilty as a direct aider and abettor of second degree murder, an
accomplice must have acted with the mental state of implied
malice.
It is unnecessary to decide whether Langi is correct
because, here, Johnson was convicted of murder and of attempted
murder, which requires an intent to kill. Under such a scenario,
Langi is inapplicable. (People v. Coley (2022) 77 Cal.App.5th
539.) In Coley, a jury similarly found the defendant guilty of
second degree murder and of attempted murder without
premeditation. As here, the Coley defendant (the driver and
nonshooter in a drive-by shooting), relying on Langi, argued that
he may have been convicted of aiding and abetting second degree
implied malice murder. Coley distinguished Langi because the
Coley defendant’s “conviction for attempted murder demonstrates
that he was convicted of second degree murder with express
rather than implied malice.” (Coley, at p. 547.) That is, the jury
was instructed that attempted murder requires an intent to kill
the person: “An intent to kill is the equivalent of express malice,
at least when there is no question of justification or excuse, and
by finding appellant guilty of attempted murder, the jury
necessarily found he had personally harbored intent to kill or
express malice when he aided and abetted the second-degree
murder.” (Ibid.) Because the second degree murder conviction
was based on the same shooting that gave rise to the attempted
murder conviction, the jury necessarily found there was an intent
to kill as to both the murder and attempted murder.

5
 The same is true here. Here, the jury clearly found that
Johnson had an intent to kill, because it found him guilty of first
degree premeditated murder and of premeditated attempted
murder. Thus, any allegedly ambiguous instructions clearly
played no role in the jury’s verdict. However, the trial court
reduced those offenses to second degree murder and attempted
murder (striking the premeditation finding). Because attempted
murder requires an intent to kill and because, as in Coley, the
shooting that resulted in the murder of Dawson and attempted
murder of Rowe were the same transaction, the trial court
necessarily found an intent to kill.
The majority, however, appears to suggest that the
attempted murder conviction is problematic because it may have
been premised on a natural and probable consequences theory.
(Maj. opn. ante, at p. 19, fn. 25.) But as the majority recognizes,
any such issue is not properly before us because the section
1172.6 petition did not concern the attempted murder
conviction.4 And, as the majority also concedes, the jury was
never instructed on the natural and probable consequences
doctrine, either as to murder or attempted murder. Indeed, the
trial court refused to instruct on it.
Instead, the jury was instructed with CALJIC Nos. 6.00
and 8.66 that an attempt to commit a crime consists of two
elements, namely, a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission. CALJIC
No. 8.66 stated that attempted murder requires “the person

4 I agree with the majority that Johnson may pursue any
remedies he might have as to that conviction under section
1172.6, as amended by Senate Bill No. 775.

6
committing” the “direct but ineffectual act” “harbored express
malice aforethought, namely, a specific intent to kill unlawfully
another human being.”
Notwithstanding that the jury was never instructed on the
invalid natural and probable consequences theory, the majority
suggests that the prosecutor argued that theory to the jury and
the trial court might have relied on it when it reduced the murder
to second degree murder and struck the premeditation finding as
to the attempted murder conviction. (Maj. opn., ante, at p. 19,
fn. 25.) The prosecutor, however, never uttered the words
“natural and probable consequences” in front of the jury.
Instead, the prosecutor argued that if the jury did not believe
there was evidence of premeditation, it should find the
defendants guilty of second degree murder with implied malice,
i.e., the defendants “consciously disregard[ed] the person’s life.”
The majority also suggests that the trial court, in ruling on
the motion for new trial, relied on the natural and probable
consequences theory as to attempted murder, or at least did not
find that Johnson acted with implied malice as to second degree
murder. (Maj. opn., ante, at p. 19, fn. 25.) All the trial court
found as to Johnson was that witness/attempted murder victim
Rowe was credible, in that he heard Gilbert tell Johnson to get
“the gat,” and saw Johnson reach down to get something,
inferentially the gun. Noting that Johnson came with Gilbert to
the scene of the shooting, the trial court found that Johnson
shared an intent with Gilbert to do some kind of bodily harm to
gang members they found in the neighborhood, and Johnson
knew there was a gun in the car.
The trial court then said, “Now, his [Johnson’s] thinking at
the time could be that he’s part of this gang and if he finds any

7
other rival gang members such as 99 Mafia, he knows there is
going to be a confrontation and he knows that the confrontation
could escalate into a shooting. He stopped the car. He stopped
the car, and we can infer from that that he positioned it in a spot
where he was close enough to Mr. Gilbert to come to the aid[ ]
should the necessity be shown, but far enough away to let Mr.
Gilbert do what he was supposed to be doing in the first place.
Now, with all of that, I cannot say that this evidence supports a
first degree murder conviction. I can see that it supports a
second degree murder conviction. His culpability is not the same
extent as Mr. Gilbert’s. His main problem was driving the car,
being in the car with the gun, knowing there was a gun, walking
outside—getting out of the car and driving away with Mr. Gilbert
after the shooting. But I think it’s a reasonable inference that he
knew, or had a reasonable expectation of knowing that there was
going to be a shooting and that shooting could in fact escalate
into a death.”
I decline to read the trial court’s comments as a reference to
the natural and probable consequences doctrine—especially when
the trial court refused to instruct on that theory. Instead, this
experienced trial judge would have been aware, at least based on
the attempted murder instructions actually given, that attempted
murder requires an intent to kill. (See People v. Martin (2005)
127 Cal.App.4th 970, 977 [trial judge is presumed to know and
follow the law].) Moreover, even assuming that the trial court
believed that Johnson was guilty of second degree implied (rather
than express) malice murder, I would decline to find that this
experienced trial judge misunderstood that second degree implied
malice murder requires a defendant to know that his conduct
endangers another’s life and acted with conscious disregard to

8
human life. In short, the record provides no reason to doubt that
the trial court understood the elements of attempted murder,
aiding and abetting, and second degree murder.
In my view, the trial court’s denial of Johnson’s section
1172.6 petition without issuing an order to show cause was
appropriate. Accordingly, I would affirm the order denying
Johnson’s petition.

EDMON, P. J.

9