People v. Johnson CA1/2

Filed 11/17/22 P. v. Johnson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A162177
v.
JONATHAN JOHNSON, (Alameda County
Super. Ct. No. 170674)
Defendant and Appellant.

In 2014, defendant Jonathan Johnson entered a no contest plea to
second degree murder and admitted an enhancement allegation of personal
use of a firearm. In 2019, defendant petitioned for resentencing under former
Penal Code section 1170.95 (now § 1172.6).1 After an evidentiary hearing,
the trial court denied the petition, finding the prosecution proved beyond a
reasonable doubt that defendant was not entitled to relief because he was the
actual killer.
Defendant appeals from the order denying his petition, raising claims
of evidentiary error. He also contends the prosecution failed to present

The Legislature renumbered Penal Code section 1170.95 as section
1

1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch.
58, § 10; People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) Further
undesignated statutory references are to the Penal Code.

1
sufficient admissible evidence to support a finding that he was the actual
killer.
After the trial court denied defendant’s petition, the Legislature
amended the law governing evidentiary hearings. (Stats. 2021, ch. 551, § 2;
see People v. Basler (2022) 80 Cal.App.5th 46, 55–56 (Basler) [describing
changes to former section 1170.95].) The parties do not dispute that the new
law applies retroactively to defendant’s case and that the trial court here
considered hearsay evidence—including the out-of-court statements of
nontestifying coparticipants identifying defendant as the shooter—that would
not be admissible under the new law. We conclude the trial court’s
consideration of this hearsay evidence was prejudicial and, therefore, reverse
the order denying the petition. But we reject defendant’s claim that, putting
aside the nontestifying coparticipants’ hearsay statements, the record lacks
sufficient evidence as a matter of law to support a finding he was the actual
killer. Accordingly, we will remand the matter for the trial court to conduct
another evidentiary hearing in accordance with the evidentiary standards of
section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Murder Conviction
The Shooting
On May 20, 2011, defendant, then 17 years old, and three other
teenagers were walking around the Fruitvale neighborhood of Oakland
looking for someone wearing a gold chain, so they could steal it. The group
spotted Antonio Torres wearing a gold chain; he was working as a gardener
in the front yard of a residence. Torres died from a gunshot wound.

2
 Defendant’s Statements to the Police
On August 29, 2011, defendant was interviewed by the police.2 He
admitted he was present at the shooting of Torres. He identified his
companions that day as David Hall, James Allen, and Y.W.3 Defendant said
Y.W. had a revolver, and the plan was that Y.W. would snatch the gold
necklace. Defendant told the police that Allen and Y.W. went through a gate
to enter a yard and steal the victim’s necklace while he and Hall remained
outside the gate. He said Allen snatched the chain and then the victim
started coming after Y.W., who got stuck in the gate. According to defendant,
the victim was about to hit Y.W., but Y.W. “did something to him,” and “[a]ll
[defendant] heard was, ‘pow, pow, pow.’ ”
Police Report
Oakland Police Sergeant Mike Gantt documented his investigation of
the Torres shooting in a report dated October 13, 2011. Gantt reported the
following facts.
On May 24, 2011, Gantt received information that defendant told his
ex-girlfriend he did the shooting. On August 29, Gantt interviewed
defendant at the police department. Defendant said he used to hang out with
Hall, Allen, Y.W., and “Gregory,” but he did not hang out with that group

2The following is based on a transcript of the interview included in the
appellate record; the transcription begins at some point after the interview
started. The appellate record also includes a police report (summarized
below) that describes statements by defendant not reflected in the interview
transcript.
3 At the time, Hall was 19 years old, and Allen and Y.W. were minors.
Allen later entered a plea of no contest to voluntary manslaughter for his
part in the killing and was sentenced to 12 years in state prison. Y.W. was
found guilty of murder in juvenile court and committed to the Department of
Juvenile Justice.

3
anymore because they “ ‘rob houses and beat on people.’ ” Defendant
reported that, a few months earlier, he saw Hall, Allen and Y.W. running
down the street and they told him “they just ‘hit someone’ for a gold chain on
34th Avenue.” Gantt showed defendant surveillance video taken on 34th
Avenue the day Torres was killed. Defendant identified the first male who
ran by as Hall, followed by Allen, himself and, last, Y.W. He said Y.W. had a
gun. Defendant “stated that he was like a lookout while [Allen] and [Y.W.]
walked into the front yard” of the residence where Torres was shot.
Defendant told Gantt that “a guy he knows as Gregory” said he drove by after
the robbery and took the victim’s iPod. Defendant was taken into custody.
On September 7, 2011, Allen and Y.W. were arrested, and Gantt
interviewed each of them early the next day. Allen stated that, in May, he
was with Y.W., defendant, and Hall at the Fruitvale BART station.
Defendant had a black revolver and said they could rob somebody. They saw
the victim doing gardening; he was wearing a gold chain, and he had an
iPhone and was wearing earplugs. Allen told Gantt that defendant “asked,
‘Y’all want to get him?’ ” Defendant entered the yard first. Allen walked up
behind the victim and snatched the chain off his neck. Allen reported that
the victim “came at [defendant] with some bolt cutters and [defendant] shot
him.”
In a separate interview, Y.W. admitted he was with Allen, defendant,
and Hall, and they robbed a Hispanic man. Y.W. said the victim turned
around and he had big scissors; defendant tried to run, but his jacket got
caught in the gate, and defendant shot the victim. Y.W. said defendant gave
him the gun as they ran away and Y.W. threw it in some bushes.
On September 8, Hall was arrested, and Gantt interviewed him. Hall
told Gantt that, on the day of the shooting, he was walking with Allen,

4
defendant, and Y.W. Y.W. “said they wanted to rob a Mexican guy the[y] saw
for his gold chain.” Hall reported that he said no and started walking away.
Seconds later, he heard gunshots. He said defendant had a revolver and told
him the victim “was coming at him with some gardening tools and ‘it was
either him or me.’ ”
Charges and Preliminary Hearing
Defendant was charged with the murder of Torres (§ 187, subd. (a))
with the special circumstance allegation that Torres was killed in the
commission of a robbery (§ 190.2, subd. (a)(17)(A)). It was further alleged
that defendant personally used a firearm (§§ 12022.53, subd. (b); 12022.5,
subd. (a)) and discharged a firearm (§ 12022.53, subd. (c)), causing great
bodily injury and death (§§ 12022.53, subd. (d); 12022.7, subd. (a)).
At the preliminary hearing, coparticipant David Hall was the only
witness. He testified that he made a deal with the District Attorney’s Office
to testify in exchange for probation and up to a year in county jail. Without
the plea bargain, Hall understood he faced a charge of murder and a possible
sentence of 25 years to life in prison.
Hall testified that, on May 20, 2011, Hall was with defendant, Allen,
and Y.W.4 Defendant had a revolver that day; he lifted his shirt up to show
Hall the gun. Defendant was “talking about hitting a lick,” which Hall
understood to mean robbing someone. Allen and Y.W. also talked about
robbing someone. The group took a bus to the Fruitvale BART station and
walked toward East 34th Avenue. Allen said something about “looking for
Mexicans with gold chains.” Hall understood the plan was to take the gold
chains to a pawn shop.

4Hall identified defendant as his friend, Allen as his brother, and Y.W.
as someone who “just came with my brother.”

5
 Hall testified that, as the group walked on East 34th Avenue toward
Foothill, he noticed a man working on his garden who had an iPod and a gold
chain. Defendant pointed the man out. According to Hall, there was no
discussion about what would happen; no one said who was going to take the
chain or who would be the lookout. Allen, Y.W., and defendant all entered
the front yard through a gate, and Hall remained on the sidewalk. Allen
“went and snatched . . . the chain.” Hall did not see the shooting, but he
heard two or more gunshots and started running. Everyone ran, and they
ended up at the house of a friend of Hall’s a few blocks away. At the house,
Allen showed Hall the gold chain, and defendant described what happened.
Hall testified, “[Defendant] said his sweater got stuck, and the guy was going
to throw a garden tool at him. [‘]So it was either him or me.[’]” Hall testified
defendant “said he had shot him or something like that.”
On cross-examination, Hall testified he did not see defendant go in the
gate; that was just what defendant told him later.5 Hall testified the victim
was facing the trees, and Allen grabbed the chain from behind, so it did not
appear the victim knew that Allen was behind him. Hall did not see the
victim turn around after Allen snatched the chain. He saw Allen run from
the front yard through the gate, but he did not see Y.W. come out of the gate.
Hall started running when he heard the gunshots, and he was ahead of his
three companions. When they reached his friend’s house, Hall did not see the
gun, and he did not know what happened to it. Surveillance footage recorded

5 On redirect, however, Hall testified he saw defendant “inside the
fence” slightly more than an arm’s length away from the victim.

6
near the crime scene showed the four teenagers running.6 Hall identified
himself as the first person to run by, but he could not identify the order of the
others.
Defense counsel stipulated that Torres died on May 20, 2011, of one or
more gunshot wounds. Defense counsel also noted in his argument that
Torres was shot in the back.
Defendant was held to answer on the murder charge with the robbery
felony-murder special circumstance and firearm enhancement allegations.
Plea and Sentence
In April 2014, the defendant reached a negotiated disposition and
entered a plea of no contest to second degree murder and admitted personal
use of a firearm under section 12022.5, subdivision (a). Defense counsel
stipulated to a factual basis for the plea based on the police report. The trial
court accepted defendant’s plea and admission; the court found a factual
basis for the plea citing the police report, documents in the file, and the
preliminary hearing.
Pursuant to the plea agreement, defendant was sentenced to 19 years
to life in prison (15 years to life for the murder conviction, plus four years for
the firearm enhancement).
Petition For Resentencing
Petition and Briefing
In June 2019, defendant filed a petition for resentencing under former
section 1170.95. In October 2020, the trial court found defendant made a

6Hall testified that the surveillance video was taken around two blocks
from where they saw the victim. Other evidence shows the video was
recorded perhaps a block’s length or less from where Torres was killed.

7
prima facie case, and counsel agreed to scheduling the evidentiary hearing
beyond the 60-day time limit.
The parties’ briefing on the petition included extensive exhibits.
Defendant submitted Hall’s plea agreement, excerpts of defendant’s August
2011 interview with the police, Hall’s juvenile court records, Allen’s juvenile
court records, an aerial photograph of the crime scene neighborhood and still
photographs of surveillance video taken near the shooting, and his own
mental health and school records. The prosecution submitted Gantt’s police
report from October 2011, the preliminary hearing transcript, and the
probation report prepared for defendant’s sentencing. Defendant also
submitted a declaration from his prior defense counsel, who represented
defendant at the time he reached a plea agreement with the district attorney
in April 2014.7
Evidentiary Hearing
At the hearing to determine whether defendant was entitled to relief,
the prosecution had the burden to prove, beyond a reasonable doubt, that

7 Defendant’s prior defense counsel stated that, by defendant’s
admission that he acted as lookout in the robbery, he could have been
convicted of first degree murder under a robbery felony murder theory as an
aider and abettor and therefore faced a prison term of 25 years to life. (And
defendant faced additional exposure if he were found guilty of the discharge
of a firearm and robbery felony murder special circumstance allegations.)
Originally, the district attorney offered a plea to first degree murder and a
sentence of 25 years to life in exchange for dismissal of the enhancement
allegations; prior defense counsel countered that defendant would plead to
second degree murder and 15 years to life; the prosecutor “wanted something
in between” and offered second degree murder plus a firearm enhancement
for a prison term of 19 years to life. Prior defense counsel stated that he
advised defendant to accept the offer because defendant would “obtain[] a
sentence with a parole eligibility date 6 years sooner than what he was facing
as an aider and abettor.”

8
defendant was ineligible for resentencing because he was guilty of murder
under current law. (§ 1172.6, subd. (d)(3); see former § 1170.95, subd. (d)(3),
added by Stats. 2018, ch. 1015, § 4.)
The evidentiary hearing was held February 4, 2021. The parties
agreed the court could decide the matter based on the exhibits attached to the
briefing, with minor exceptions.8 In addition, the trial court noted it
“reviewed the Court’s own file, and in particular the thing that caught my
attention was the sentencing transcript in Mr. Johnson’s case from May 21st
of 2014.”
The prosecutor argued defendant was ineligible for resentencing
because he was the actual killer. He said the evidence showed “three fairly
consistent stories” from Hall, Allen, and Y.W, who all “put the gun . . . in Mr.
Johnson’s hand,” and “one barely inconsistent story.”
Defense counsel argued there was insufficient evidence to establish
defendant was the shooter beyond a reasonable doubt. He stated Hall was
untrustworthy because he was only willing to cooperate with the prosecution

8 At the start of the hearing, the trial court stated its understanding
was that the parties “agreed to submit . . . for the evidentiary showing in this
hearing” “all exhibits that were attached to all of [the] briefing.” Defense
counsel responded that there was no agreement the probation report could be
considered, noting it contained details “that I’m not sure where they came
from.” Defense counsel also stated that counsel had agreed the reference in
the police report to “a rumor about what Mr. Johnson may have said to a
girlfriend about this incident” was “not admissible and should not be
considered by the Court.” The court said it would “set that aside,” referring
to the alleged statement defendant made to his ex-girlfriend. The court also
said it did not read the facts of the offense summarized in the probation
report, as it had already read about the incident “in several other places.”
The prosecutor objected to the declaration from prior defense counsel
discussing the negotiation of the plea agreement. He argued it was
irrelevant, but the court found some relevance and admitted the declaration.

9
“in return for a very sweet agreement” under which he was convicted of being
an accessory after the fact. He suggested Hall, Allen, and Y.W. may all have
decided to tell the police defendant was the shooter (instead of Y.W. as
defendant claimed) in retaliation for defendant identifying them to the police.
Defense counsel also argued the surveillance video taken a block away from
the shooting showed Y.W. was the last person running from the scene and it
was “logical to assume from the account we are all given, that the last person
to leave the yard through the gate was the shooter.”
Trial Court Ruling
The trial court denied the petition, finding the prosecution proved
beyond a reasonable doubt that defendant was the actual killer and,
therefore, was not entitled to relief.
Explaining its decision, the court first observed, “there’s four people
who are involved in this crime; three give a story that’s consistent when it
comes to who the shooter is. One does not.” It acknowledged defense counsel
made good points about Hall’s credibility issues, but it found “the
impeachment as to Mr. Johnson is eve[n] stronger,” citing defendant’s
shifting story to the police. The court found Hall’s testimony credible and it
credited Allen’s and Y.W.’s statements to the police that defendant was the
shooter.
The court also relied on defendant’s change of plea and statement at
sentencing. The court noted defendant “admitted the personal use of the
firearm; and the only way that the firearm was used in this case, based on
the evidence that I’ve seen, was to shoot and kill the victim.” The court
continued, “[W]hen Mr. Johnson [wa]s given the opportunity to speak to the
victim’s family [at sentencing], this is what he said: ‘If I could go back in
time, I would because I made a bad decision. There’s not a day that goes by

10
that I’m not haunted by that fateful evening on May 20th. I would like the
Court and the Torres family to know it was never my intentions to hurt
anybody. I do not have a murderous heart. I hope and pray that the Torres
family will be confident. I know it is never easy to cope with when a loved
one is gone, especially sooner than expected. I pray that you guys will hold
up and be strong. And I know it has been really emotional on both sides, and
in that, we all tend to make mistakes, some greater than others, but it is
important that we learn from them and do things better. And mistakes, they
affect not only you, but I’ve learned it also affects the people around you. I
made a big mistake, one that is going to haunt me for the rest of my life. I’m
going to continue to better myself from this experience, and I hope one day
the Torres family can forgive me.’ ”
The trial court explained, “[W]hen I read that statement to the family, I
think it was very appropriate, very mature on Mr. Johnson’s part, but it
clearly was an acceptance of responsibility for the murder, in my view. It’s
not the statement someone would make who simply hung outside and whose
only involvement was to alert the others that the police were coming if he
saw them. That’s the statement of a person who feels deeply and truly and
sincerely sorry that he killed somebody, and it’s consistent with his no
contest plea to second-degree murder. It’s consistent with his admission of
personal use of a firearm in this event. It’s consistent with the statements of
the other three people. In short, it’s consistent with almost all of the evidence
in the case.”
DISCUSSION
Defendant contends (1) his plea was not an admission he was the
actual killer, (2) the trial court erred in relying on hearsay contained in the
police report and probation report, (3) the trial court’s reliance on the

11
coparticipants’ statements to police violated Crawford,9 (4) the trial court
denied defendant due process when it considered his statement at his
sentencing hearing as evidence of guilt (when the parties had not referred to
his statement in their arguments), and (5) there is insufficient admissible
evidence in the record to support a finding that he was the actual killer.
A. Defendant’s Admission of Use of a Firearm
In his opening brief, defendant asserts his plea to second degree
murder with a firearm-use enhancement was not an admission that he was
the actual killer. We have no quarrel with the proposition that admitting
firearm use within the meaning of section 12022.5, subdivision (a), is not
tantamount to admitting that one is an actual killer. But it does not appear
the trial court here treated defendant’s plea as an admission that he was the
actual killer. After stating that it relied on the accounts of Hall, Allen, and
Y.W. that defendant was the shooter, the court referred to defendant’s plea
by observing, “[H]e admitted the personal use of the firearm; and the only
way that the firearm was used in this case, based on the evidence that I’ve
seen, was to shoot and kill the victim.” We do not understand this to mean
the court believed the plea established defendant admitted he was the actual
killer.10 Rather, we agree with the Attorney General that the trial court’s

9 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
10 If the trial court thought defendant previously admitted in court that
he was the shooter, it undoubtedly would have led with that finding, but
instead the court began by highlighting the fact that, among the four
teenaged boys present at the shooting, three identified defendant as the
shooter and only one (defendant) identified another person as the shooter.
(The court stated, “So to hit what I would describe to you as the highlighted
points, there’s four people who are involved in this crime; three give a story
that’s consistent when it comes to who the shooter is. One does not.”) Our
conclusion that the trial court merely treated defendant’s firearm-use
admission as “some evidence” (and not a definitive admission that he was the

12
reasoning shows it considered the fact that defendant admitted a firearm-use
enhancement as “simply some evidence” relevant to making its factual
finding that defendant was the shooter.
Defendant raises a slightly different argument in his reply brief,
claiming it was error for the trial court to consider his plea and firearm-use
admission at all in deciding the petition. We do not address arguments
raised for the first time in a reply brief, “absent a showing why the argument
could not have been made earlier” (People v. Newton (2007) 155 Cal.App.4th
1000, 1005), and defendant has not made such a showing. In any event, he
offers no authority for the proposition that in an evidentiary hearing to
determine whether a petitioner is eligible for resentencing under section
1172.6, the trial court is prohibited from considering the fact the petitioner
admitted an enhancement allegation in the underlying criminal case. We
therefore reject defendant’s first argument.
B. The Trial Court’s Consideration of the Police and Probation Reports
Defendant contends the trial court should not have considered hearsay
evidence contained in the police report and probation report. The Attorney
General argues the court’s consideration of inadmissible hearsay evidence
was harmless.

shooter) is further supported by the trial court’s evidentiary ruling that
defendant’s prior counsel’s declaration was relevant as it related to
defendant’s no contest plea and his admission of personal use of a firearm.
(See fn. 7.) The declaration offered a reason defendant might have admitted
to the firearm enhancement even if he did not use a firearm during the
robbery because the sentence agreed to was still lower than what he faced if
convicted of first degree felony murder as a (non-shooting) aider and abettor.

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 1. Subsequent Change to the Petitioning Procedure
When the evidentiary hearing was held in this case, former section
1170.95, subdivision (d)(3) (former § 1170.95(d)(3)), allowed trial courts to
consider “the record of conviction” in deciding whether a petitioner was
entitled to relief under the statute.11 Regarding the procedural rules
governing evidentiary hearings under former section 1170.95(d)(3), a Court of
Appeal observed, “ ‘[T]he Legislature gave the superior court unfettered
discretion to consider ‘evidence’ without any restriction at the subdivision
(d)(3) hearing to determine the petitioner’s eligibility for resentencing.”
(People v. Williams (2020) 57 Cal.App.5th 652, 661, italics added [holding
that, under former section 1170.95(d)(3), a trial court was permitted to
consider hearsay evidence so long as there was substantial basis for believing
the hearsay information was reliable].)
Effective January 1, 2022, however, Senate Bill No. 775 (2021-2022
Reg. Sess.) (S.B. 775) deleted reference to “the record of conviction,” and the
following language was added: “The admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court 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.” (Former § 1170.95(d)(3), as amended by Stats.
2021, ch. 551, § 2, italics added.)

11 From 2019 through 2021, former section 1170.95(d)(3) provided that,
“[a]t the hearing to determine whether the petitioner is entitled to relief,” the
parties “may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (Former § 1170.95, subd. (d)(3),
added by Stats. 2018, ch. 1015, § 4.)

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 The revisions to former section 1170.95 made by S.B. 775 apply
retroactively to cases that are not yet final. (Basler, supra, 80 Cal.App.5th at
p. 56.)
2. Forfeiture
The Attorney General does not dispute that the new law applies
retroactively to defendant’s case, which is not yet final. But he argues
defendant forfeited any challenge to the trial court’s use of hearsay evidence
described in the police and probation reports because defense counsel failed
to object at the evidentiary hearing. We will not deem defendant’s contention
forfeited, however, because the law on permissible evidence in an evidentiary
hearing under section 1172.6 has changed since the evidentiary hearing in
this case, and defense counsel could not have anticipated the change. (People
v. Black (2007) 41 Cal.4th 799, 810 [“We long have applied the rule that
although challenges to procedures or to the admission of evidence normally
are forfeited unless timely raised in the trial court, ‘this is not so when the
pertinent law later changed so unforeseeably that it is unreasonable to expect
trial counsel to have anticipated the change’ ”].)12
3. Prejudice
Defendant argues reversal and remand for a new evidentiary hearing is
required because the trial court expressly relied on hearsay evidence that is
now inadmissible (see § 1172.6, subd. (d)(3)). The Attorney General responds
that any reliance by the trial court on inadmissible hearsay evidence—
including Allen’s and Y.W.’s statements to the police described in the police
report—was harmless. The Attorney General argues there was

12Because we do not deem the issue forfeited, we need not consider
defendant’s argument that any failure to preserve the issue for appeal was
the result of ineffective assistance of counsel.

15
overwhelming evidence that defendant was the actual killer, citing (1) Hall’s
preliminary hearing testimony that defendant showed him a gun before the
robbery and defendant told him he shot the victim after the robbery; (2)
defendant’s admissions to the police that he and his companions discussed
stealing a chain and that he acted as a lookout; and (3) defendant’s statement
of regret at sentencing, which the trial court described as “the statement of a
person who feels deeply and truly and sincerely sorry that he killed
somebody.”
We generally review claims of evidentiary error under the Watson
standard; thus, we ask whether it is reasonably probable the outcome would
have been more favorable to the defendant absent the error. (People v.
Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d
818, 836.) A reasonable probability “in this context does not mean more
likely than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
715.) It has been said that a reasonable probability is shown when an
evidentiary error “ ‘undermines confidence in the outcome of the trial.’ ”
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 668.) Appellate review under
Watson “focuses not on what a reasonable jury [or trial court acting as fact
finder] could do, but what such a jury [or trial court] is likely to have done in
the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected
the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177.)

16
 Here, before the court heard argument at the evidentiary hearing, and
in the course of discussing the scope of the evidence that would be considered
at the hearing, the trial court stated that, as to “the factual aspects of the
offense,” the items it had “relied on the most were” Hall’s preliminary
hearing testimony, Gantt’s interview with defendant, and the police report
summarizing what defendant, Hall, Allen, and Y.W. told the police. After
hearing argument from the parties, and when the court announced its ruling,
the first point it made was that four individuals were involved in the crime
and three of them gave a consistent story about who the shooter was. The
court recognized there were reasons to question Hall’s credibility but found
there was “stronger” “impeachment” as to defendant. In weighing the
competing credibility of Hall and defendant, the court noted, “There is also
the matter of both James Allen and [Y.W.], also indicating that Mr. Johnson
is the shooter.”
We conclude there is a reasonable chance, more than an abstract
possibility, that the outcome would have been more favorable to defendant
had the trial court not considered Allen’s and Y.W.’s inadmissible hearsay
statements. Unquestionably, the trial court relied on their statements in
reaching its finding that defendant was the shooter. Without their
statements, it was Hall’s testimony against defendant’s statements to law
enforcement. No physical or other witness evidence placed the gun with
defendant. The trial court noted defense counsel “ma[d]e some certainly good
points about [Hall’s] credibility issues,” but it found defendant less credible
because he lied to the police about his involvement in the robbery. That
defendant initially lied to the police is certainly relevant to his credibility, but
it does not necessarily show he was the shooter given that there were four
individuals at the crime scene who could have been the shooter. And

17
defendant’s apology at sentencing was not an express admission that he was
the shooter and was viewed as inculpatory by the trial court in light of “the
statements of the other three people.” (Italics added.) On this record, we
think it is reasonably probable that Allen’s and Y.W.’s hearsay statements
corroborating Hall’s testimony and expressly identifying defendant as the
shooter could have been the evidence that tipped the scale for the trial court
to credit Hall’s version of events over defendant’s and thus determine that
defendant was the shooter beyond a reasonable doubt. It merits a remand for
the trial court to determine whether defendant is entitled to relief under
section 1172.6 in a new evidentiary hearing.13

13 The Attorney General also argues the trial court’s consideration of
hearsay evidence was harmless because there was overwhelming admissible
evidence that defendant was guilty of murder as a major participant in the
underlying robbery who acted with reckless indifference to human life. (See
Strong, supra, 13 Cal.5th at p. 708 [“Defendants who were neither actual
killers nor acted with the intent to kill can be held liable for murder only if
they were ‘major participant[s] in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of [Penal
Code] Section 190.2’ ”].) We reject this argument because the Attorney
General cannot now rely on a theory of murder liability the prosecution did
not argue below, and we do not address it on the merits.
At the evidentiary hearing, defendant was entitled to resentencing
unless the prosecution could prove to the trial court beyond a reasonable
doubt that defendant is guilty of murder under current law. (§ 1172.6, subd.
(d)(3); Strong, supra, 13 Cal.5th at p. 709.) The prosecution in this case never
argued defendant was guilty of murder under the theory he was a major
participant who acted with reckless indifference to human life, and the trial
court did not find defendant guilty of murder under this theory. A
determination by a reviewing court that there may be substantial evidence to
support this theory of murder liability would not satisfy the statutory
requirement of a finding of guilt beyond a reasonable doubt and, therefore,
would not be sufficient to deny defendant’s petition. (See Strong, at p. 720 [“a
court determination that substantial evidence supports a homicide conviction
is not a basis for denying resentencing after an evidentiary hearing,” and an

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 Accordingly, we reverse the order denying defendant’s petition and
remand for a new evidentiary hearing at which the parties may present
evidence in accordance with section 1172.6. (See People v. Cooper (2022) 77
Cal.App.5th 393, 418 [where the trial court erred in the evidentiary hearing
on a petition under former section 1170.95, the appellate court concluded it
was “appropriate to remand the matter for a new hearing on whether [the
petitioner] is entitled to relief”].)
C. The Court’s Consideration of Defendant’s Sentencing Statement
Defendant also argues the trial court demonstrated bias or appearance
of bias by considering defendant’s statement made at the sentencing hearing
when the parties did not offer the statement as evidence or argue about its
significance, and that the remedy for this alleged bias is remand to a
different judge to conduct the new evidentiary hearing. We disagree with
defendant’s claim that the trial court exhibited bias. It does not appear to us
that the court departed from its role as neutral factfinder. The court did not
“persist[] in making discourteous and disparaging remarks to a defendant’s
counsel” (People v. Mahoney (1927) 201 Cal. 618, 627) or make remarks that
“give the appearance the court held preconceived ideas” that raise doubts
about the fairness and impartiality of the proceeding” (Hernandez v. Paicius
(2003) 109 Cal.App.4th 452, 455, disapproved of on another point by People v.
Freeman (2010) 47 Cal.4th 993) as in the cases cited by defendant. Instead, it

“after-the-fact” court review does “not involve a determination beyond a
reasonable doubt”].) Consequently, the Attorney General’s claim for the first
time on appeal that defendant could have been found guilty of murder under
an unargued, alternative theory would not show harmlessness even if true.

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appears the court conducted the hearing under the law that it believed was
applicable at the time.14
D. Sufficiency of the Evidence
Finally, defendant contends there is insufficient admissible evidence to
support a finding he was the actual killer and, therefore, he is entitled to
resentencing as a matter of law.
Defendant argues this court should conduct our review without giving
deference to the trial court’s credibility findings because the court relied on
documentary evidence and not live testimony. This argument was rejected
by the Fourth District Court of Appeal in People v. Clements (2022) 75
Cal.App.5th 276, 301. The Clements court reasoned that a ruling after an
evidentiary hearing on a petition for resentencing is predominantly a factual
determination, and where a determination is a question of fact, there is “ ‘no
reason to withhold the deference generally afforded to such factual findings.’ ”
(Ibid., quoting People v. Perez (2018) 4 Cal.5th 1055, 1066.) Division Four of
our court recently followed Clements in People v. Sifuentes (2022) 83
Cal.App.5th 217, 232-233.) We agree with Clements and Sifuentes and reject
defendant’s argument. Accordingly, we review defendant’s claim under a
substantial evidence standard. (Clements, supra, 75 Cal.App.5th at p. 298
[reviewing trial court’s ruling on a petition under former section 1170.95 by
“ ‘ “examin[ing] 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 that would support a rational trier
of fact in finding [the defendant guilty] beyond a reasonable doubt” ’ ”].)

Because we are reversing the court’s order, we need not consider
14

defendant’s Crawford/Sixth Amendment and due process claims.

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 In this case, defendant does not dispute that Hall’s preliminary hearing
testimony is admissible evidence. Nor does he challenge the trial court’s
consideration of his own statements to the police as reflected in the interview
transcript he submitted in support of his petition. Defendant’s statements
show he was with Hall, Allen, and Y.W. on the day of the killing and their
plan was to steal a gold necklace. Hall’s testimony supports findings that
defendant had a gun earlier that day, that he talked about robbing someone,
and that he entered the front yard and was near the victim before the
shooting. Hall’s testimony further establishes that defendant admitted he
shot Torres soon after the killing. This is substantial evidence supporting a
determination defendant was the actual killer. On remand, however, it will
be up to the prosecution to prove beyond a reasonable doubt that defendant is
not entitled to relief under section 1172.6.
DISPOSITION
The order of February 4, 2021, denying defendant’s petition for
resentencing under former section 1170.95 is reversed. The matter is
remanded for the trial court to conduct a new evidentiary hearing in
accordance with section 1172.6.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Stewart, Acting P.J.

_________________________
Van Aken, J.*

A162177, People v. Johnson

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

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