People v. Johnson

THE PEOPLE, Plaintiff and Respondent, v. JULIAN H. JOHNSON, Defendant and Appellant.

A158366

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

March 30, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(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.

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.)

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 heargued 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 beconvicted 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), italicsadded.) 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...