P. v. Johnson

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Filed 3/30/21 P. v. Johnson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIAN H. JOHNSON,
Defendant and Appellant.
A158366
(Contra Costa County
Super. Ct. No.
51603604)
Appellant Julian H. Johnson was charged with two murders and
related crimes, but pleaded no contest to two counts of voluntary
manslaughter, as well as one count each of attempted murder and attempted
robbery. He filed a petition for resentencing pursuant to Penal Code1 section
1170.95, which provides for resentencing of individuals convicted of felony
murder or murder under a natural and probable consequences theory if they
can no longer be convicted of murder under January 1, 2019 amendments to
the Penal Code. The superior court summarily denied his petition,
concluding that his voluntary manslaughter and attempted murder
convictions made him ineligible for relief under the statute. We affirm.
1 Undesignated statutory references are to the Penal Code.

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FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2015, appellant drove Clydedale Hoskin and Miguel
Gutierrez to a location in Antioch to acquire narcotics and commit a robbery.2
After appellant parked the car, Hoskin and Gutierrez exited the vehicle
wearing masks and armed with guns and approached a group of people who
were congregated outside. Appellant planned to join the two men but was
delayed while he hid their cell phones inside the car. Hoskin ordered
everyone to the ground and shot into the group, hitting Shannah Tatum in
her head and leg. A man in the group fired back and hit Hoskin, killing him.
Gutierrez returned fire, killing a bystander named Adrian Craig. Gutierrez
returned to the car alone and appellant drove away.
On March 8, 2016, an information was filed charging appellant,
Gutierrez, and co-defendant Teresa O’Sullivan with two counts of murder of
Craig and Hoskin (§ 187, subd. (a), counts one and two), attempted second
degree robbery (§§ 664/211, count three), and attempted murder of Tatum (§§
664/187, subd. (a), count four). As enhancements to the murder counts, the
information alleged two special circumstances: multiple murder (§ 190.2,
subd. (a)(3)) and felony (robbery) murder (§ 190.2, subd. (a)(17)). Four
firearm use enhancements (§ 12022.5, subd (a)) were also alleged against
appellant.
In January 2018, pursuant to a negotiated disposition, appellant
pleaded no contest to two counts of voluntary manslaughter (§ 192, subd. (a))
and to the other two counts as charged, i.e., attempted murder and attempted
robbery. He admitted the firearm enhancement allegations and two prior
prison term enhancements. (§ 667.5.)
2 We draw the facts from the parties’ summaries of the preliminary
hearing evidence below.

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On March 19, 2018, the trial court sentenced appellant to 20 years in
state prison in accordance with the plea agreement, comprised of an upper
term of eleven years for one manslaughter count, consecutive one-third
middle terms for the other manslaughter and the attempted murder and
attempted robbery counts (two years, two years and four months, and eight
months, respectively), a consecutive year plus three one-third year terms for
the arming enhancements (§ 12022, subd. (a)(1)), and two one-year prior
prison term enhancements (§ 667.5, subd. (b)).
In 2018, the Legislature enacted Senate Bill. No. 1437 (2017-2018 Reg.
Sess.) (Senate Bill 1437), which took effect on January 1, 2019. (Stats. 2018,
ch. 1015.) Among other changes, Senate Bill 1437 amended section 189 to
limit liability for murder under a felony murder or natural and probable
consequences theory to a person who is the actual killer, who “with the intent
to kill” aids and abets the actual killer, or who is a major participant in the
underlying felony and acted with reckless indifference to human life. (Stats.
2018, ch. 1015, §§ 1(f), 3(e); see § 189, subd. (e).) Senate Bill 1437 permits an
individual convicted of murder under these theories to petition the sentencing
court to vacate the conviction and to be resentenced on any remaining counts
under certain enumerated procedures. (Stats. 2018, ch. 1015, § 4; see §
1170.95.)
On February 22, 2019, appellant filed a pro se petition for resentencing
of his voluntary manslaughter convictions under section 1170.95. The People
filed an opposition to the petition, arguing that because he had been
convicted of voluntary manslaughter and not murder, he failed to make a
prima facie showing of entitlement to relief. The court appointed counsel to
represent appellant. Through counsel, appellant filed a reply in which he

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argued for the first time that he was also eligible for resentencing as to his
conviction for attempted murder.
On August 15, 2019, the trial court issued an order summarily denying
the petition. This appeal followed.
DISCUSSION
I. Senate Bill 1437 and Section 1170.95
“Effective January 1, 2019, Senate Bill 1437 amended murder liability
under the felony-murder and natural and probable consequences theories.
The bill redefined malice under section 188 to require that the principal acted
with malice aforethought. Now, ‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)”
(People v. Turner (2020) 45 Cal.App.5th 428, 433 (Turner).) The bill also
amended section 189 to provide that a defendant who was not the actual
killer and did not have an intent to kill is not liable for felony murder unless
he or she “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.” (§ 189, subd. (e)(3).)
Senate Bill 1437 also enacted section 1170.95, which authorizes “[a]
person convicted of felony murder or murder under a natural and probable
consequences theory [to] 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” so long as three conditions are met:
“(1) A complaint, information, or indictment was filed 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 or accepted a plea offer in lieu of a trial at which the petitioner could be

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convicted for first degree or second degree murder. [¶] (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.” (§ 1170.95, subds. (a)(1)-
(a)(3).) Any petition that fails to make “a prima facie showing that the
petitioner falls within the provisions of [section 1170.95]” may be denied
without a hearing. (§ 1170.95, subds. (c) & (d).)
II. Section 1170.95 Does Not Apply to Defendants Convicted of
Voluntary Manslaughter
Appellant contends that where defendants are otherwise eligible for
section 1170.95 relief because of the nature of the prosecution, they may
qualify even if convicted of manslaughter by plea. He acknowledges,
however, that the appellate courts that have considered this contention have
come to the opposite conclusion.
Appellant’s eligibility for relief under section 1170.95 is a question of
law we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; Turner,
supra, 45 Cal.App.5th at p. 435.) “ ‘ “As in any case involving statutory
interpretation, our fundamental task here is to determine the Legislature’s
intent so as to effectuate the law’s purpose.” ’ ” (People v. Scott (2014) 58
Cal.4th 1415, 1421.) We first consider the statutory language, “ ‘ “giving [it] a
plain and commonsense meaning.” ’ ” (Ibid.) “ ‘ “ ‘When [that] language . . . is
clear, we need go no further.’ [Citation.] But where a statute’s terms are
unclear or ambiguous, we may ‘look to a variety of extrinsic aids, including
the ostensible objects to be achieved, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.’ ” ’ ” (Ibid.)
Section 1170.95 allows “[a] person convicted of felony murder or murder
under a natural and probable consequences theory” to file a petition “to have
the petitioner’s murder conviction vacated.” (§ 1170.95, subd. (a), italics

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added.) Should the superior court find that the petitioner has made a prima
facie showing of entitlement to relief and issue an order to show cause, it
“shall hold a hearing to determine whether to vacate the murder conviction
and to recall the sentence” (§ 1170.95, subd. (d)(1), italics added), unless the
parties “waive a resentencing hearing and stipulate that the petitioner is
eligible to have his or her murder conviction vacated” (§ 1170.95, subd. (d)(2),
italics added).
Relying on the italicized language above, the Second and Fourth
District Courts of Appeal have concluded that a person convicted of
manslaughter is not entitled to relief under section 1170.95’s plain terms.
(People v. Sanchez (2020) 48 Cal.App.5th 914, 917 (Sanchez); Turner, supra,
45 Cal.App.5th at p. 432; People v. Flores (2020) 44 Cal.App.5th 985, 993
(Flores); People v. Cervantes (2020) 44 Cal.App.5th 884, 887.) More recently,
in People v. Paige (2020) 51 Cal.App.5th 194, this court reached the same
conclusion, holding that the statute is expressly limited to murder convictions
(id. at 202-204), and that its rational distinction satisfies equal protection (id.
at 205-206). As we discuss further below, the same reasoning has been relied
upon by several appellate courts to disallow persons convicted of attempted
murder from eligibility for resentencing under section 1170.95 as a matter of
law. (E.g., People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review
granted Mar. 11, 2020, S259948 (Medrano); People v. Lopez (2019) 38
Cal.App.5th 1087, 1104, review granted Nov. 13, 2019, S258175 (Lopez).)
Appellant focuses on section 1170.95, subdivision (a)(2), which provides
that one requirement for relief is that “[t]he petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder.” (Italics added.) Since the italicized language does not

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expressly require a defendant to have accepted a plea offer for murder, he
urges it must be interpreted in his favor to apply to those defendants who
pleaded to manslaughter to avoid being tried for murder based on a theory
that Senate Bill 1437 abolished. To conclude otherwise would render the
italicized language surplusage, since the Legislature was not required to
include this additional language relating to accepted pleas to avoid such
convictions.
Appellant’s contentions are unpersuasive because they “place[] outsized
importance on a single clause to the exclusion of the provision’s other
language. . . . [T]he remaining portions of section 1170.95 repeatedly and
exclusively refer to murder, not manslaughter.” (Flores, supra, 44
Cal.App.5th at p. 995; see Turner, supra, 45 Cal.App.5th at p. 436
[concluding such an interpretation “ignores the introductory language in . . .
subdivision (a) that limits petitions to persons ‘convicted of . . . murder.’ ”].)
We agree that interpreting subdivision (a)(2) to include a person convicted of
voluntary manslaughter after a plea runs counter to the statute’s multiple,
express references to murder convictions.
We also reject appellant’s contention that a contrary reading renders
the italicized language above surplusage. As the appellate court stated in
Sanchez, supra, 48 Cal.App.5th at p. 919, “[s]pecifying that section 1170.95
applies to murder convictions both by trial and by guilty plea clarifies that it
does not matter how the murder conviction was obtained for section 1170.95
to apply. Regardless of whether that clarification was necessary, ‘ “the
Legislature may choose to state all applicable legal principles in a statute
rather than leave some to even a predictable judicial decision.” ’ [Citation.]
Express statutory language defining the class of defendants to whom section
1170.95 applies is not surplusage. [Citation.] Such clarification ‘may

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eliminate potential confusion and avoid the need to research extraneous legal
sources to understand the statute’s full meaning.’ ”
Appellant also contends that “the use of the word ‘murder’ in section
1170.95, subdivision (a), may properly be interpreted as reaching that crime’s
lesser included offenses — among them, manslaughter and attempted
murder,” asserting that a contrary reading produces an absurd result by
granting sentencing relief to more culpable defendants. We disagree. The
Legislature’s exclusion of relief for persons convicted of lesser offenses such
as voluntary manslaughter or attempted murder is not “absurd” because the
Legislature reasonably could have concluded that reform was necessary only
in cases of murder. (See Flores, supra, 44 Cal.App.5th at pp. 996-997
[rejecting the contention that an interpretation “limit[ing] [section 1170.95’s]
ameliorative benefits only to defendants convicted of murder” would be
absurd].) Appellant relies on People v. King (1993) 5 Cal.4th 59, (King),
People v. Jenkins (1995) 10 Cal.4th 234 (Jenkins), and In re R.G. (2019) 35
Cal.App.5th 141 (R.G.) to support his argument, but we find those cases
distinguishable.
King involved a “sentencing anomaly” that resulted from a series of
statutory amendments over the course of years concerning juveniles tried as
adults for homicide offenses. (See People v. Cook (2015) 60 Cal.4th 922, 938,
fn. 2, [summarizing King].) “[A] literal interpretation of interrelated statutes
would have meant that some juveniles convicted of first degree murder would
be eligible to be committed to the former California Youth Authority (CYA)
rather than sentenced to state prison, but the same juveniles who merely
attempted to commit first degree murder would be ineligible for such a
commitment.” (Ibid, italics omitted.) The California Supreme Court held
that the legislative history showed an intent that “both successful and

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intended first degree murderers under the age of 18” be eligible for CYA
commitment. (King, supra, 5 Cal.4th at p. 67.) The court reasoned that
when the Legislature amended the punishment for attempted murder, “[i]t
did not intend a lesser included offense to have potentially harsher penal
consequences than the greater offense.” (Id. at p. 69.) The court determined
that “[t]he clear legislative intent . . . should prevail over any irrational result
caused by the amendment of different statutes in separate codes at different
times for unrelated purposes.” (Ibid.)
In considering an argument similar to appellant’s regarding the crime
of attempted murder, the appellate court in People v. Munoz (2019) 39
Cal.App.5th 738 review granted Nov. 26, 2019, S258234, observed that unlike
the statutory amendments at issue in King, Senate Bill 1437’s “plain
language is not the result of a disjointed series of amendments over time . . .
from which we might infer inadvertence or irrationality. Instead, the
relevant provisions are contained in a single cohesive bill.” (Munoz, at p.
759.) Moreover, “in King the effect of the series of amendments and judicial
interpretations was stark: first degree murderers under 18 were eligible for
CYA, whereas persons of the same age who committed attempted murder
were not. Here, in contrast, Senate Bill 1437 does not mandate that persons
convicted of attempted murder are punished more severely than persons
convicted of murder. Attempted murderers are statutorily subject to a lesser,
not a greater, penalty than murderers. Senate Bill 1437 does not require
that attempted murderers receive a harsher sentence, or prohibit them from
receiving a more lenient sentence, than murderers. On its face, Senate Bill
1437 does not present the same clear-cut distinction as in King.”3 (Ibid.,
3 Similarly, People v. Bullard (2020) 9 Cal.5th 94, 105 and People v.
Jenkins, supra, 10 Cal.4th at p. 247, on which defendant also relies, involved

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italics added.) We agree. In any event, “[t]he remedy for any potentially
inequitable operation of section 1170.95 lies with the Legislature. If the
Legislature concludes it is unwise or inequitable to exclude attempted
murderers from Senate Bill 1437’s reach, it has only to amend the law.” (Id.
at p.760.)
Appellant’s reliance on R.G., supra, is similarly unavailing. In R.G.,
the appellate court concluded that section 1170.95 applies to juvenile
offenders despite the statute’s use of terms generally inapplicable in juvenile
proceedings, such as “conviction” and “sentence.” (R.G., supra, 35
Cal.App.5th at pp. 146, 151.) However, R.G.’s holding “was premised on
several considerations specific to the juvenile law, including, inter alia, that
provisions of the Welfare and Institutions Code specifically contemplate
incorporating substantive criminal laws into juvenile proceedings, and
excluding juveniles from . . . section 1170.95’s reach could run afoul of the
requirement that a juvenile may not be held in physical confinement for a
period exceeding that which could be imposed upon an adult convicted of the
same offense.” (Munoz, supra, 39 Cal.App.5th at p. 756, fn. 19, rev. granted.)
R.G. did not construe Senate Bill 1437 to apply to manslaughter or attempted
murder.
The rule of lenity does not alter our conclusions. Lenity “ ‘generally
requires that “ambiguity in a criminal statute should be resolved in favor of
lenity, giving the defendant the benefit of every reasonable doubt on
questions of interpretation.” ’ ” (People v. Nuckles (2013) 56 Cal.4th 601,
611.) This doctrine does not apply under the particular circumstances of this
appeal because there are multiple, reasonable interpretations of a penal
the interpretation of legislation to avoid the consequence that less serious
criminal conduct be punished more severely than more culpable conduct.

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statute. (Ibid.) The rule of lenity applies only in cases of egregious
ambiguity, where we can only guess what the Legislature intended. (Ibid.)
No such uncertainty exists here. Accordingly, we decline to apply the rule of
lenity to interpret subdivision (a)(2) in a manner at odds with the remainder
of the statute.
III. Section 1170.95 Does Not Apply to Defendants Convicted of Attempted
Murder
Appellant asserts that while Senate Bill 1437 included no specific
reference to attempted (as opposed to completed) murder, “as a matter of
logic, the legislative changes should be fully applicable to both.”4 He argues
that, as applied to attempted murder, the aider of a non-homicide crime
cannot have specifically intended to commit murder, and that “[g]iven the
express legislative purpose of tying the crime of murder to direct individual
culpability [citation], it would be anomalous to loosen those ties for attempted
murder.”
The Courts of Appeal have reached different conclusions regarding
whether Senate Bill 1437 applies to the crime of attempted murder in cases
that are not yet final, and the issue is currently before the California
Supreme Court.5 However, all of these courts are in accord that section
4 The People incorrectly assert that appellant forfeited any argument
concerning his conviction for attempted murder because he raised the request
in his reply brief and trial court’s order did not address this request or this
conviction. The trial court did reach this issue in its order, finding the
argument to be unpersuasive.
5 The California Supreme Court has framed the issue as follows: “Does
Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder
liability under the natural and probable consequences doctrine?” (Lopez,
supra, 38 Cal.App.5th 1087 rev. granted; 2019 Cal.LEXIS 8414)

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1170.95 provides no post-sentencing relief for the crime of attempted murder.
(See, e.g., People v. Munoz, supra, 39 Cal.App.5th 738, 753, rev. granted Nov.
26, 2019, S258234 [does not apply]; Lopez, supra, 38 Cal.App.5th 1087 at p.
1103, rev. granted [does not apply]; People v. Dennis (2020) 47 Cal.App.5th
838, 844-847, review granted July 29, 2020, S262184 [does not apply]; People
v. Alaybue (2020) 51 Cal.App.5th 207, 222 (Alaybue) [does not apply]; People
v. Larios (2019) 42 Cal.App.5th 956, 961, 964-968, review granted Feb. 26,
2020, S259983 [Senate Bill 1437 applies to attempted murder but section
1170.95 provides no relief for the crime of attempted murder]; Medrano,
supra, 42 Cal.App.5th 1001 at pp. 1013-1016 rev. granted [same]; People v.
Sanchez (2020) 46 Cal.App.5th 637, 642-644, review granted June 10, 2020,
S261768 [Senate Bill 1437 applies to attempted murder; no discussion of
section 1170.95].) We agree and conclude that persons convicted of
attempted murder are ineligible for resentencing under section 1170.95.
Appellant argues that applying section 1170.95 solely to murder
convictions can only lead to an absurd result because it lessens sentences for
defendants whose victims were actually killed while preserving sentences
where the victims lived. Appellant may view this legislative choice as
unwise, but that does not render the statutory scheme absurd. Moreover,
“[i]n deciding to omit attempted murder from the ambit of Senate Bill 1437,
the Legislature could have reasonably concluded that the need to address
sentencing reform was more appropriately directed at persons convicted of
murder as opposed to attempted murder. This is so because the punishment
for attempted murder is generally far less than the punishment imposed for
murder.” (Alaybue, supra, 51 Cal.App.5th at p. 224; see §§ 190, subds. (a),
(e), 664, subd. (a), 3046, subd. (a)(1).) As discussed previously, appellant’s
absurdity claim falls short for the reasons expressed in Munoz, supra, 39

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Cal.App.5th at p. 759, rev. granted, and other court decisions. We need not
repeat them here.
Having concluded that section 1170.95 unambiguously applies only to
petitioners convicted of murder, we need not examine in any depth
appellant’s arguments regarding legislative intent. As the Fourth District
Court of Appeal explained in Turner, the legislative history of Senate Bill
1437 confirms that the Legislature did intend to limit eligibility for
resentencing to persons convicted of murder. (Turner, supra, 45 Cal.App.5th
at pp. 436-438.) We find Turner’s analysis on this point persuasive, and
appellant offers us no reason to depart from it.
IV. Equal Protection
Appellant contends that if section 1170.95 provides retroactive relief to
offenders convicted of murder but not those convicted of manslaughter and
attempted murder, the law violates the equal protection clauses of the state
and federal constitutions. We disagree.
The equal protection clause (U.S. Const., 14th Amend.; Cal. Const., art.
I, § 7, subd. (a)) requires those who are similarly situated with respect to a
law’s legitimate purposes be treated equally. (People v. Brown (2012) 54
Cal.4th 314, 328.) Thus, the first step in an equal protection analysis is to
determine whether the defendant is similarly situated with those who are
entitled to the statutory benefit. (Cervantes, supra, 44 Cal.App.5th at p. 888.)
Here persons convicted of attempted murder and manslaughter are not
similarly situated with those convicted of murder. They are different crimes
with different attendant punishments. When the Legislature reforms one
area of the law, it is not required to reform other areas of the law.
(Cervantes, supra, 44 Cal.App.5th at p. 888.) The Legislature’s decision to
reform a particular aspect of the law of murder does not require it to make

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wholesale changes in the law of homicide. The decision not to include
attempted murder and manslaughter in section 1170.95 falls within the
Legislature’s “line-drawing” authority as a rational choice that is not
constitutionally prohibited. (Id., at p. 888.)
DISPOSITION
The order denying appellant’s section 1170.95 petition is affirmed.

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SANCHEZ, J.
We concur.
HUMES, P.J.
BANKE, J.
(A158366)

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