Filed 12/8/23 P. v. Johnson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082203
Plaintiff and Respondent,
v. (Super. Ct. No. CR38392)
JAMAL HUSSEIN JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Matthew C. Perantoni, Judge. Affirmed.
Cliff Gardner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting and Michael Dolida, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Carlos Montes Ortega was murdered by repeated blows to his head
with a baseball bat during a robbery. Although then-17-year-old Jamal
Hussein Johnson agreed to rob Ortega, his accomplice wielded the baseball
bat and dealt the killing blows. As Ortega lay bleeding, Johnson picked up
Ortega’s wallet and stole the two dollars it contained. Johnson admits that
he never physically stopped the beating or rendered any aid, but he claims
that he told the killer to stop. Another witness saw Johnson hit Ortega with
his hands. A jury convicted Johnson of felony murder and robbery.
Decades later, based on recent legislative changes to our state’s murder
laws, Johnson petitioned to vacate his murder conviction and to be
resentenced under what is now Penal Code section 1172.6. The trial court
denied the petition. It found that Johnson (1) was a major participant in the
underlying robbery and (2) acted with reckless indifference to human life;
thus, he was still liable for felony murder. In so finding, the court deemed
incredible Johnson’s testimony that he told the killer to stop, instead relying
on the evidence that Johnson actively participated in the beating.
On appeal, Johnson challenges the reckless indifference to human life
finding. We review that factual question for substantial evidence. (People v.
Oliver (2023) 90 Cal.App.5th 466, 480 (Oliver).) Johnson’s presence at the
scene, failure to stop the killer, potential involvement in the assault, failure
to render any aid, and decision to complete the robbery after the beating
support the court’s finding despite Johnson’s youth. Therefore, we affirm.
BACKGROUND
I.
One evening in October 1990, 17-year-old Johnson walked down a
street by an apartment complex with his 13-year-old girlfriend and Ana Al-
Rad Levi Guinn. Guinn carried a baseball bat.
As Ortega walked toward them, Guinn asked Johnson if he “ ‘want[ed]
to jack this dude?’ ” “To jack” someone means to take the person’s money. In
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a “snap decision,” Johnson agreed. Guinn demanded money from Ortega.
Ortega ran away. Guinn chased him, and Johnson followed.
Guinn caught up to Ortega and struck him in the head with the
baseball bat. Ortega fell to the ground. Guinn continued to beat Ortega’s
head with the baseball bat, dealing at least four and up to eight blows.
Although Johnson was “[i]mmediately close” as Guinn beat Ortega, he
did not stop the violence. A bystander who could overhear, but not see, the
beating heard an unidentified male voice say “ ‘Stop. Are you crazy?’ ”
Johnson testified at his resentencing hearing that he told Guinn to “ ‘[s]top
hitting him before you kill him. You tripping.’ ” But Valerine W., who
watched from an apartment balcony, saw Johnson “hitting [Ortega] with his
hands.”
Eventually, a bystander pushed Guinn away and “grabbed” Johnson.
But before that, Johnson took Ortega’s wallet “from off the ground” beside the
beaten man and pocketed two dollars.
Johnson never tried to help Ortega or call for medical aid, even after
the beating stopped. Instead, he ran.
II.
At the time of Johnson’s trial, a defendant could be found guilty of
murder under the felony-murder rule if someone was killed during a robbery
in which he or she participated. Liability could attach without any showing
of malice aforethought and even if the defendant was not the actual killer.
More recently, the Legislature reformed the state’s homicide law and
“significantly limited the scope of the felony-murder rule.” (People v. Strong
(2022) 13 Cal.5th 698, 707-708.) As amended, section 189 now limits felony-
murder liability to, relevant here, those who (1) were “a major participant” in
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a robbery and (2) “acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).)
The Legislature created a procedure, now codified in section 1172.6,
that allows those convicted under the old felony-murder rule to seek
retroactive relief. (Stats. 2018, ch. 1015, § 4.) If the petitioner states a prima
facie case for relief, the court must issue an order to show cause and hold an
evidentiary hearing. (§ 1172.6, subds. (c), (d)(1).) At the hearing, the
prosecution must “prove, beyond a reasonable doubt, that the petitioner is
guilty of murder” under the amended law. (Id., subd. (d)(3).) The court “may
consider evidence previously admitted at any prior hearing or trial that is
admissible under current law” as well as new evidence offered by the parties.
(Ibid.) “The court may also consider the procedural history of the case recited
in any prior appellate opinion.” (Ibid.)
III.
At the resentencing hearing, Johnson testified, but the parties
otherwise relied on the prior trial record.
As conceded by defense counsel, the court found that Johnson was a
major participant in the robbery.
The court also found that Johnson acted with reckless indifference to
human life. In support, the court noted that Johnson “actively participated
in beating” Ortega. Although Johnson was only 17 years old at the time, the
court said: “[S]urely he had to know being struck in the head with a
[baseball] bat could cause death.” The court discredited Johnson’s testimony
that he told Guinn to stop as “self-serving statements, really unsupported by
the bulk of the evidence and generally not credible.” “[V]ery significant” to
the court’s ruling was the fact that Johnson “did absolutely nothing really to
render aid” and instead stole from Ortega’s wallet before leaving the scene.
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Because the court found “beyond a reasonable doubt” that Johnson was
a major participant who acted with reckless indifference to Ortega’s life, it
found him ineligible for resentencing. It thus denied Johnson’s petition.
ANALYSIS
Johnson raises two issues on appeal. First, he argues that we should
independently review the denial of his resentencing petition because the trial
court relied largely on a cold record. Second, Johnson contends that, even
under a more deferential standard, the prosecution failed to present
sufficient evidence to prove he acted with reckless indifference to human life.
For the reasons discussed below, we disagree on both points.
I.
Johnson urges us to apply an independent standard of review.
Although he testified at the resentencing hearing, Johnson emphasizes the
cold trial record to argue that we are “in just as good [of] a position as the
trial court” to decide factual matters. For support, Johnson relies mostly on
People v. Vivar (2021) 11 Cal.5th 510 (Vivar).
Vivar, however, is distinguishable. There, our Supreme Court held
that appellate courts should independently review rulings on a motion to
vacate a conviction under section 1473.1. (Vivar, supra, 11 Cal.5th at p. 524.)
It selected that standard based on “multiple factors with special relevance” to
section 1473.7 appeals. (Id. at pp. 526-527.) Notably, the questions at issue
in Vivar, “while mixed,” were “predominantly questions of law” that
historically enjoyed independent review. (Id. at p. 524.)
Here, however, we face a factual question: did Johnson act with
reckless indifference to human life? Answering this question “requires a
fact-intensive, individualized inquiry.” (In re Scoggins (2020) 9 Cal.5th 667,
683.) Even when a trial court works from a cold record, our Supreme Court
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“see[s] no reason to withhold the deference generally afforded” questions of
fact under the substantial evidence standard. (People v. Perez (2018)
4 Cal.5th 1055, 1066.) That key difference means we do not need to reach the
factors used in Vivar to select a standard of review. We thus join a growing
group of appellate courts in reviewing section 1172.6 petition denials for
substantial evidence. (See, e.g., People v. Clements (2022) 75 Cal.App.5th
276, 298; People v. Sifuentes (2022) 83 Cal.App.5th 217, 233; Oliver, supra,
90 Cal.App.5th at p. 480.) The cases Johnson cites involving mixed questions
of law and fact do not persuade us otherwise. (See, e.g., Vivar, supra,
11 Cal.5th at p. 524; People v. Ault (2004) 33 Cal.4th 1250, 1266; In re Cudjo
(1999) 20 Cal.4th 673, 687-688; People v. Ogunmowo (2018) 23 Cal.App.5th
67, 76.)
Johnson argues that the Vivar court also applied independent review to
a “pure question of fact.” But our Supreme Court reached the factual aspect
of the mixed questions of law and fact in Vivar only after determining that
independent review applied to section 1473.7 appeals. (Vivar, supra,
11 Cal.5th at pp. 527-528.) It decided that, within that less deferential
framework, the factual findings from a cold record could also be reviewed
independently. (Id. at p. 528.) Johnson omits that our Supreme Court
expressly limited its decision to section 1473.7 appeals and cautioned against
the outcome he seeks. (Id. at p. 528, fn. 7.) Indeed, it reaffirmed the
“familiar postulate” that, under the substantial evidence standard, appellate
courts must defer to the trial court’s factual determinations, whether derived
from live or written evidence. (Ibid.)
The substantial evidence standard of review thus applies. Accordingly,
we examine the entire record in the light most favorable to the prosecution to
determine if a rational factfinder could find the defendant guilty beyond a
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reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Substantial evidence is reasonable, credible evidence of solid value, even if
circumstantial. (Ibid.) On appeal, we “must accept logical inferences that
the [factfinder] might have drawn from the circumstantial evidence.” (People
v. Maury (2003) 30 Cal.4th 342, 396 (Maury).) “Conflicts and even testimony
[that] is subject to justifiable suspicion do not justify” reversal. (Id. at
p. 403.) “We resolve neither credibility issues nor evidentiary conflicts,” as
they are the “exclusive province” of the trial court. (Ibid.) We will affirm the
order unless “upon no hypothesis whatever is there sufficient substantial
evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
II.
We now apply that standard to the merits of Johnson’s appeal.
Johnson challenges the finding that he acted with reckless indifference to
human life. We conclude that sufficient evidence supports that finding.
Reckless indifference to human life “encompasses a willingness to kill
(or to assist another in killing) to achieve a distinct aim, even if the defendant
does not specifically desire that death as the outcome of his actions.” (People
v. Clark (2016) 63 Cal.4th 522, 617 (Clark).) Although the Clark court
analyzed a different Penal Code section, it addressed the same mental state,
and so its reasoning applies equally here. (People v. Montanez (2023)
91 Cal.App.5th 245, 265 (Montanez).) Johnson’s briefing addresses only
subjective awareness, but reckless indifference to human life has “both
subjective and objective elements.” (Clark, at p. 617.) “The subjective
element is the defendant’s conscious disregard of risks known to him or her.”
(Ibid.) The objective element considers if defendant’s actions “ ‘involved a
gross deviation from the standard of conduct that a law-abiding person in the
[defendant’s] situation would observe.’ ” (Ibid.)
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The following non-exclusive factors are relevant to whether a defendant
acted with reckless indifference to human life:
(1) knowledge or use of weapons;
(2) physical presence at the scene and opportunity to restrain the killer or
aid the victim;
(3) duration of the felony;
(4) knowledge of the accomplice’s propensity to kill;
(5) efforts to minimize the risk of violence during the felony; and
(6) youth.
(Clark, supra, 63 Cal.4th at pp. 618-623; People v. Keel (2022) 84 Cal.App.5th
546, 558-559 (Keel).) No single factor is necessary, nor is any one necessarily
sufficient. (Clark, at p. 618.)
Here, we address the factors from weakest to strongest in terms of
showing reckless indifference to human life.
The first factor—knowledge or use of weapons—does not support
finding reckless indifference to human life. Johnson saw Guinn holding the
baseball bat when he agreed to rob Ortega. But if the “mere fact of a
defendant’s awareness that a gun will be used in the felony is not sufficient to
establish reckless indifference to human life,” Johnson’s awareness of a
baseball bat is even less so. (Clark, supra, 63 Cal.4th at p. 618.)
The sixth factor—Johnson’s youth—though somewhat mitigating, is not
dispositive. Johnson turned seventeen shortly before the incident. “A
juvenile’s immaturity and failure to appreciate the risks and consequences of
his or her actions bear directly” on our analysis. (People v. Ramirez (2021)
71 Cal.App.5th 970, 991.) In Ramirez, evidence indicated that peer pressure
influenced the teenage defendant, who feared he would be killed if he did not
help with the felony. (Ibid.) In addition, “age may well have affected his
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calculation of the risk of death posed by” the situation. (Ibid.) Here, in
contrast, no evidence suggests that Johnson felt pressured to agree to rob
Ortega. And the court found that, even at Johnson’s age, “surely he had to
know being struck in the head with a bat could cause death.” Although we
recognize that youth “can distort risk calculations,” it “cannot overwhelm all
other factors.” (People v. Mitchell (2022) 81 Cal.App.5th 575, 595.) Based on
other factors discussed below, we conclude that Johnson’s youth does not
preclude finding that he acted with reckless indifference to human life.
The third and fourth factors—duration and Johnson’s knowledge of
Guinn’s propensity to kill—are close to neutral but slightly support the trial
court’s finding. Knowledge of an accomplice’s propensity to kill “may be
evident before the felony.” (Clark, supra, 63 Cal.4th at p. 621.) If the
defendant is “keenly aware” that an accomplice is “both explosively violent
and capable of committing sudden acts of violence,” this factor can be
satisfied without proof that the accomplice is a “known killer.” (Montanez,
supra, 91 Cal.App.5th at pp. 272-273, 283-284.) Here, there is no evidence
Guinn had violent tendencies or Johnson was aware of any beforehand.
Guinn carrying around a baseball bat, without more, is not enough. While
Guinn said he “wanted to kill someone” that day, the record is unclear
whether Johnson heard this statement. Thus, Johnson does not appear to
have known in advance of Guinn’s propensity to kill.
Johnson likely developed this knowledge, however, after Guinn
knocked Ortega to the ground and then continued to strike him in the head
with the baseball bat. Knowledge of an accomplice’s propensity to kill may
arise during the felony. (Clark, supra, 63 Cal.4th at p. 621.) As crimes
unfold, “warning signs that the crimes posed a serious risk of danger to the
victims” can “accumulate[ ].” (Montanez, supra, 91 Cal.App.5th at p. 273.)
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At this point, the propensity and duration factors meet. How long the
felony lasts affects the degree to which a defendant can “observe additional
facts showing the crimes posed a serious risk of danger.” (Montanez, supra,
91 Cal.App.5th at pp. 273-274.) Johnson relies on Keel, where the “events
unfurled in rapid succession,” with the killer shooting the victim somewhat
impulsively after unexpected resistance. (Keel, supra, 84 Cal.App.5th at
pp. 560-561.) After considering all factors, the Keel court could not conclude
that the defendant acted with reckless indifference to human life during a
robbery that was “unplanned, spontaneous, and short in duration.” (Id. at
p. 562.) Here, like in Keel, “there [i]s no evidence the robbery was
prearranged” and the entire encounter was brief, lasting somewhere between
less than one minute and a few minutes. (Id. at p. 560)
But awareness of the risk to human life can develop over a short time,
too. In In re Loza, the killer demanded money from the victim and counted
down from five while threatening to shoot. (In re Loza (2017) 10 Cal.App.5th
38, 53.) “[A]ny objective observer would have appreciated the grave risk to
life” during that countdown. (Ibid.) While only seconds long, that period
gave the defendant “time to observe and react before the murder.” (Ibid.)
Similarly, here, Johnson objectively should have understood the grave risk to
life after Guinn’s first blow forced Ortega into a vulnerable position on the
ground and Johnson saw him continue to deliver blow after blow to Ortega’s
head. Indeed, he acknowledges in his briefing that, “as the robbery
progressed, it became clear that Guinn was willing to use force.” Guinn
struck Ortega’s head at least four times. All but the first strike occurred
while Ortega lay prone on the ground. The repeated blows, particularly after
Ortega fell to the ground, gave Johnson time, if brief, to (1) realize Guinn’s
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beating could be fatal and (2) decide how to react. Because of the short
duration, however, we give this factor limited weight.
The second and fifth factors—presence and opportunity to restrain or
render aid and efforts to minimize the risk of violence—support finding that
Johnson acted with reckless indifference to human life. Given the lack of
preplanning, any effort to minimize violence overlaps with Johnson’s
presence and opportunity to restrain Guinn or aid Ortega.
Johnson concedes that he did not try to physically stop Guinn or render
aid to Ortega. He tries to minimize the significance of his inaction by noting
that “neither did the defendants in Banks or Clark.” This comparison holds
no weight, however, because the defendants in Banks and in Clark were not
present during the killing. (People v. Banks (2015) 61 Cal.4th 788, 796-797
(Banks); Clark, supra, 63 Cal.4th at pp. 619-620.) Their absence could
“significantly diminish culpability” because they had “no opportunity to
dissuade the actual killer[ ] nor to aid the victims.” (Banks, at p. 803, fn. 5.)
Here though, Johnson admits that he chased Ortega and was “[i]mmediately
close” during the beating. He thus had an opportunity to prevent loss of life
that the Banks and Clark defendants lacked. The United States Supreme
Court “stressed the importance of presence to culpability” for this reason.
(Clark, supra, 63 Cal.4th at p. 619.)
Johnson relies heavily on his testimony—deemed “generally not
credible” by the court—that he told Guinn to stop. Johnson contends that the
court’s credibility finding “must be rejected.” Johnson cites two corroborating
facts: (1) he informed a detective that he told Guinn to stop, as evidenced in
defense counsel’s closing argument at trial; and (2) a bystander testified that
he heard an unidentified male say stop. We disregard the first fact, as
“[a]rgument of counsel is not evidence.” (Fuller v. Tucker (2000)
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84 Cal.App.4th 1163, 1173.) The appellant bears the burden “to provide an
adequate record” on appeal, yet Johnson admits the record does not include
the transcript of this detective interview. (People v. Akins (2005)
128 Cal.App.4th 1376, 1385.) As for the second fact, the bystander, who
heard but did not see the events, could not identify the speaker. His
testimony thus does not definitively validate Johnson’s.
More importantly, in a section 1172.6 proceeding, the trial court acts as
an independent factfinder with “the power to judge credibility, resolve
conflicts, weigh evidence, and draw inferences.” (People v. Saibu (2022)
81 Cal.App.5th 709, 737, 744 (Saibu).) It thus has “wide latitude to believe or
disbelieve witnesses, or even specific portions of their testimony, as it sees
fit.” (In re Lopez (2023) 14 Cal.5th 562, 591.) We review the record for
substantial evidence; this appeal is not an opportunity for Johnson to
relitigate factual disputes. “The fact that [Johnson] disagree[s] with the
conclusions and inferences the superior court drew from the evidence does
not mean the court” erred. (Saibu, at p. 744.)
Besides, “the existence of efforts to minimize violence does not
necessarily foreclose a finding of reckless indifference to human life.” (In re
Scoggins (2020) 9 Cal.5th 667, 682.) Even if Johnson told Guinn to stop, his
later actions showed indifference to Ortega’s life. After the beating, Johnson
knelt by the bleeding Ortega, not to help him, but to empty his wallet. An
objective factfinder could view Johnson’s decision as valuing monetary gain—
a mere two dollars here—over human life.
In addition, another witness, Valerine, saw Johnson attack Ortega with
Guinn. In denying resentencing, the court credited this testimony, noting
that Johnson “actively participated” in the beating. Johnson faults the court
for believing Valerine because of “numerous flaws” in her testimony. Those
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purported flaws include: (1) the distance between Valerine’s balcony and the
events; (2) contrary to Valerine, Johnson’s then-13-year-old girlfriend
testified that he never hit Ortega; and (3) two other witnesses claimed that
Valerine had taken drugs that day. Once again, Johnson asks us to invade
the court’s “exclusive province” to decide credibility and evidentiary conflicts.
(Maury, supra, 30 Cal.4th 342, 403.) We decline to do so. Besides, Johnson
himself testified that someone “grabbed [him] on up” after pushing Guinn
away from Ortega. A reasonable factfinder could infer the intervenor did so
because Johnson, too, was involved in the beating.
In disputing the reckless indifference finding, Johnson accuses the
court of “[i]gnoring” large swaths of the record. He claims “part of the
problem with the trial court’s decision was that the parties” at the
resentencing hearing “relied exclusively on the 1994 appellate opinion for
their statements of facts” and did not mention more favorable bystander
testimony.
We presume the trial court “duly considered the evidence presented to
it.” (People v. Jones (2022) 86 Cal.App.5th 1076, 1092.) “In the usual case,
the fact that a court did not specifically mention certain evidence does not
mean that the court ‘ignored’ that evidence.” (Ibid.) Here, although the court
took judicial notice of the earlier appellate opinion, it never said it relied on
the opinion as a source of fact. The court reviewed the criminal file, including
the trial testimony, and even re-reviewed some trial testimony after the
resentencing hearing and before issuing its ruling. That the court did not
specifically mention other bystanders’ testimony does not mean it did not
consider it before deciding Valerine’s account was more accurate. Johnson,
who must show affirmative error on appeal, fails to convince us that the court
erred on these grounds.
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Viewing the record in the light most favorable to the People, we
conclude substantial evidence sufficiently supports the court’s finding that
Johnson acted with reckless indifference to human life.
DISPOSITION
We affirm the order denying Johnson’s petition for resentencing.
CASTILLO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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