P. v. Johnson

Filed 4/14/20 P. v. Johnson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
RON ANTWONE JOHNSON,
Defendant and Appellant.
B297944
(Los Angeles County
Super. Ct. No. TA102619)
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Assistant Attorney General, Idan Ivri and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Ron Antwone Johnson appeals from a postconviction order
denying his petition for resentencing under Penal Code section
1170.95.1 On appeal Johnson contends the trial court erred in
summarily rejecting his petition to resentence him as to his
second degree murder conviction without first appointing him
counsel, inviting a response from the People, and holding a
hearing. The People highlight Johnson was also convicted of
conspiracy to commit murder, showing he acted with express
malice and the specific intent to kill. We agree with the People
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Johnson was convicted of conspiracy to commit murder, the
murder of Thornell Williams, and the attempted murder of
LaToya Powers. This court affirmed the convictions in People v.
Johnson (Aug. 26, 2003, B157448) (nonpub opn.) (Johnson I). As
this court described the evidence at trial, “After being shot at by
Pocket Hood Crips gang members, David Greer asked [Johnson]
to help him retrieve a gun. Greer and [Johnson] were members
of the rival Athens Park Blood gang. On March 11, 2000,
accompanied by Brian (‘K-down’), they picked up a .45-caliber
handgun and some bullets for K-down’s .38-caliber handgun. The
three men then went to Wilmington Street in Compton.
[Johnson] drove and Greer sat in the front seat, armed with the
.45-caliber handgun. K-down was in the back seat, armed with
1 All further statutory references are to the Penal Code.

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his .38-caliber handgun. . . . Williams and . . . Powers were
walking on Wilmington Street near 132nd Street. [Johnson]
pulled up to them and Greer yelled: ‘Fuck Craps,’ a term of
disrespect for Crips. Greer and K-down[] fired a total of five
shots at Williams and Powers. Williams was seriously injured
and Powers was killed.” (Johnson I, supra, B157448.)
After the shooting, a witness provided a partial license
plate number and description of the shooter’s car. The next
morning the police detained and arrested Johnson, who was
driving a vehicle matching the plate number and description.
After waiving his Miranda2 rights, Johnson confessed to
participating in the driveby shooting, and he later showed police
where the guns were hidden. (Johnson I, supra, B157448.)
The trial court instructed the jury as to conspiracy to
commit murder with CALJIC No. 8.69, in relevant part, “The
crime of conspiracy to commit murder requires proof that the
conspirators harbored express malice aforethought, namely, the
specific intent to kill unlawfully another human being.” Further,
“In order to prove this crime, each of the following elements must
be proved: [¶] 1. Two or more persons entered into an agreement
to unlawfully kill another human being; [¶] 2. Each of the
persons specifically intended to enter into an agreement with one
or more other persons for that purpose; [¶] 3. Each of the
persons to the agreement harbored express malice aforethought,
namely a specific intent to kill unlawfully another human being;
and [¶] 4. An overt act was committed in this state by one or
more of the persons who agreed and intended to commit murder.”
2 Miranda v. Arizona (1966) 384 U.S. 436.

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On the murder count, the trial court instructed the jury
with CALJIC Nos. 8.10 and 8.11. on both express and implied
malice. As to implied malice, the court instructed the jury that
“[m]alice is implied when, [¶] 1. The killing resulted from an
intentional act, [¶] 2. The natural consequences of the act were
dangerous to human life, and [¶] 3. The act was deliberately
performed with knowledge of the danger to[,] and with conscious
disregard for, human life.”
The jury found Johnson guilty of conspiracy to commit
murder, second degree murder (Powers),3 and attempted
premeditated murder (Thornell). (Johnson I, supra, B157448.)
As to count 2 for second degree murder, the jury found true the
allegations, among others, the offense was committed to benefit a
gang (§ 186.22, subd. (b)(1)); a principal personally used a firearm
(§ 12022.53, subds. (b) & (e)(1)); a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)); and a principal personally and intentionally discharged a
firearm causing great bodily injury or death (§ 12022.53, subds.
3 Although this court described the conviction as a special
circumstances murder based on the jury’s finding true two special
circumstances allegations, as the People note, “[i]n order for a
special circumstance allegation to be found true, the defendant
must also have first been found guilty of first degree murder.
(§ 190.2.)” (People v. Friend (2009) 47 Cal.4th 1, 71.) The
abstract of judgment does not reflect the special circumstances
findings, and the court correctly did not impose a sentence of life
without the possibility of parole under section 190.2, subdivision
(a).

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(d) & (e)(1)).4 The court sentenced Johnson to an aggregate term
of 90 years to life in prison. (Johnson I, supra, B157448.) This
court affirmed. (Ibid.)
On February 13, 2019 Johnson, in pro. per., filed a petition
for relief with a supporting declaration stating he had met the
requirements under section 1170.95 for relief under Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), including that
(1) the information allowed the prosecution to proceed under a
theory of felony murder or the natural and probable consequences
doctrine; (2) he was convicted of murder based on a theory of
felony murder or the natural and probable consequences doctrine;
and (3) Johnson could not be convicted of first or second degree
murder under changes to sections 188 and 189, effective
January 1, 2019. Johnson requested the court appoint him
counsel and vacate his murder conviction.
On March 14, 2019 the superior court denied Johnson’s
petition to vacate the murder conviction, referring to the facts in
this court’s opinion in Johnson I, concluding, “This wanton,
violent[,] reckless and senseless pre[]meditated, planned and
carefully orchestrated pay[]back gang shooting clearly and
unequivocally excludes petitioner from the amended sections
of . . . sections 188 and 189.” It is undisputed the court did not
4 Although the opinion states Johnson was charged with
personally and intentionally discharging a firearm, the firearm
allegations were alleged and found true as to a principal using a
firearm under section 12022.53, subdivision (e)(1). We therefore
reject the People’s argument Johnson was the actual shooter
based on the jury’s finding true he personally and intentionally
discharged a firearm causing death under section 12022.53,
subdivision (d).

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hold a hearing or appoint a lawyer for Johnson. Johnson timely
appealed.
DISCUSSION
A. Senate Bill 1437
On September 30, 2018 Senate Bill No. 1437 (2017-2018
Reg. Sess.) was signed into law, effective January 1, 2019.
Senate Bill 1437 was enacted to “amend the felony murder rule
and the natural and probable consequences doctrine, as it relates
to murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Sen. Bill 1437
(2017-2018 Reg. Sess.) § 1; see People v. Verdugo (2020)
44 Cal.App.5th 320, 325 (Verdugo), review granted Mar. 18. 2020,
S260493; People v. Martinez (2019) 31 Cal.App.5th 719, 723
(Martinez).) “Senate Bill 1437 accomplishes this by amending
section 188, which defines malice, and section 189, which defines
the degrees of murder, and as now amended, addresses felony
murder liability.” (Martinez, at p. 723; accord, Verdugo, at
p. 325.)
New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.”5 Senate Bill 1437 also added section
5 Prior to the enactment of Senate Bill 1437 (2017-2018 Reg.
Sess.), former section 188 provided, “Such malice may be express

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189, subdivision (e), which provides, “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”
Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (a), provides, “A person convicted of felony murder or
murder under a natural and probable consequences theory may
file a petition with the court that sentenced the petitioner to have
the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed
or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It
is implied, when no considerable provocation appears, or when
the circumstances attending the killing show an abandoned and
malignant heart.”

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against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a
trial . . . . [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” Section 1170.95, subdivision
(b)(1), provides that the petition “shall be filed with the court that
sentenced the petitioner.”6 Pursuant to section 1170.95,
subdivision (b)(1)(A), the petition must include a declaration by
the petitioner that he or she is eligible for relief under the
section.
The Legislature intended for there to be a three-step
evaluation of a section 1170.95 petition. (Verdugo, supra,
44 Cal.App.5th at pp. 328, 332-333.) As we explained in Verdugo,
“If any of the required information is missing and cannot be
readily ascertained by the court, ‘the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.’ (§ 1170.95, subd. (b)(2).) [¶] If the petition
contains all required information, section 1170.95, subdivision
(c), prescribes a two-step process for the court to determine if an
order to show cause should issue: ‘The court shall review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
6 Judge Gary R. Hahn was the sentencing judge. (Johnson I,
supra, B157448.) However, Judge Hahn retired in 2012, and
Judge Allen J. Webster, Jr., reviewed Johnson’s petition.

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appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response . . . and the petitioner may file and serve
a reply . . . . If the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to
show cause.’” (Verdugo, at p. 327.)
After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts . . . .” (§ 1170.95, subd.
(d)(1).) If a hearing is held, “[t]he prosecutor and the petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (§ 1170.95, subd.
(d)(3).) “[T]he burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” (Ibid.)
B. The Trial Court Did Not Err in Summarily Denying the
Petition Without Appointing Counsel or Holding a Hearing
Johnson contends under section 1170.95, subdivision (c), he
was entitled to appointment of counsel and a hearing because he
alleged facts that, if true, would have entitled him to relief. We
rejected this contention in Verdugo. (Verdugo, supra,
44 Cal.App.5th at pp. 328, 332-333.) As part of the first prima
facie determination required by section 1170.95, subdivision (c),
the court may consider “documents in the court file or otherwise
part of the record of conviction that are readily ascertainable.”
(Verdugo, at pp. 327, 329 [superior court properly considered
record of conviction and appellate opinion affirming conviction in
concluding defendant had intent to kill because of conviction of
conspiracy to commit murder]; accord, People v. Lewis (2020)

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43 Cal.App.5th 1128, 1138-1139, review granted Mar. 18, 2020,
S260598 [superior court properly relied on record of conviction
showing he was convicted as direct aider and abettor in
determining he was not eligible for relief].)
As we explained in Verdugo, to determine whether the
petitioner is eligible for relief on the basis he was convicted of
first or second degree murder under a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
theory, “the court must at least examine the complaint,
information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea; and
the abstract of judgment.” (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330.) We added, “The record of conviction might also
include other information that establishes the petitioner is
ineligible for relief as a matter of law because he or she was
convicted on a ground that remains valid notwithstanding Senate
Bill 1437’s amendments to sections 188 and 189 (see § 1170.95,
subd. (a)(3))—for example, a petitioner who admitted being the
actual killer as part of a guilty plea or who was found to have
personally and intentionally discharged a firearm causing great
bodily injury or death in a single victim homicide within the
meaning of section 12022.53, subdivision (d).” (Id. at p. 330.)
Here, the jury found Johnson guilty of conspiracy to commit
murder, which, as instructed, required the jury to find Johnson
“harbored express malice aforethought, namely a specific intent
to kill unlawfully another human being.” (CALJIC No. 8.69;
accord, People v. Johnson (2013) 57 Cal.4th 250, 263-264 [“‘A
conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to

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commit an offense, as well as the specific intent to commit the
elements of that offense, together with proof of the commission of
an overt act . . . .’”]; People v. Jurado (2006) 38 Cal.4th 72, 120
[same].)
Johnson was therefore not eligible for relief under Senate
Bill 1437 because under new section 189, subdivision (e), he could
still be convicted of murder based on his intent to kill.7 (People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 414, 419 [petitioner
not eligible for relief under Sen. Bill 1437 because jury found true
felony-murder special-circumstance instruction, which required
jury to find aider and abettor intended to kill or was a major
participant and acted with reckless indifference to human life];
see People v. Gonzalez (2018) 5 Cal.5th 186, 202 [trial court’s
failure to instruct on lesser offenses was harmless error because
jury finding true the felony-murder special circumstance
necessarily meant jury found aiders and abettors had the intent
to kill or were major participants and acted with reckless
indifference].)
Because Johnson failed to make the initial prima facie
showing for relief under section 1170.95, subdivision (c), he was
not entitled to appointed counsel or a hearing. (Verdugo, supra,
44 Cal.App.5th at pp. 332-333 [“If, as here, the court concludes
the petitioner has failed to make the initial prima facie showing
7 Although the superior court focused on the nature of the
killing and not the conviction of conspiracy to commit murder,
“[w]e will affirm the trial court’s ruling if it is correct on any
theory of law applicable to the case, even if for reasons different
than those given by the trial court.” (People v. Evans (2011)
200 Cal.App.4th 735, 742; accord, Young v. Fish & Game Com.
(2018) 24 Cal.App.5th 1178, 1192-1193.)

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required by subdivision (c), counsel need not be appointed.”];
People v. Lewis, supra, 43 Cal.App.5th at p. 1140 [“[T]he trial
court’s duty to appoint counsel does not arise unless and until the
court makes the threshold determination that petitioner ‘falls
within the provisions’ of the statute.”].)
DISPOSITION
The order denying Johnson’s petition for resentencing is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

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