Filed 2/7/22 P. v. Johnson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Reversed.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

In 2006, Ronnie Edward Johnson was convicted of, among other things, the murder of Charles Trice (Pen. Code, § 187, subd. (a)) with burglary-murder and robbery-murder special circumstance findings (§ 190.2, subd. (a)(17)).[1] In 2019, Johnson filed a petition for resentencing under section 1170.95. The court denied the petition, and Johnson filed this appeal. He contends the trial court erred when it concluded as a matter of law that he did not qualify for resentencing due to the jury’s special circumstance findings. Johnson also argues, and the People concede, that the court erred when it weighed the evidence at the prima facie stage of the proceedings to find Johnson was either the actual killer or a direct aider and abettor who had the intent to kill. We reverse and remand for issuance of an order to show cause.

PROCEDURAL BACKGROUND

1. The Conviction and Appeal

On October 10, 2003, Patrice Trice found her father, Charles, laying on the floor of his home bound at his ankles and wrists with duct tape. He was dead. The coroner determined Charles died from asphyxia, due to neck compression with blunt force trauma to the head as a contributing factor.[2]

Johnson and Ernest Scott were jointly charged with Charles’s murder, but their trials were severed. At Johnson’s trial, the People presented evidence he and Scott planned to rob Charles and were hired to kill him. A jury found Johnson guilty of first degree murder in violation of section 187, subdivision (a). The jury found true the special circumstance allegations that the murder was committed during the commission of a burglary and a robbery within the meaning of section 190.2, subdivision (a)(17).[3] The jury also found Johnson guilty of the underlying robbery and burglary counts. The trial court sentenced him to life in prison without the possibility of parole for the murder, with a consecutive four-year term for the robbery conviction. Sentence on the burglary conviction was stayed pursuant to section 654.

Johnson appealed, asserting the trial court committed a number of evidentiary errors. On July 10, 2008, a different panel of this court affirmed the judgment. (People v. Johnson, supra, B197179 [nonpub. opn.].)

2. Johnson Files A Petition Under Section 1170.95

In 2018, the Legislature passed and the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which became effective on January 1, 2019, and which invalidated the natural and probable consequences doctrine as it relates to murder and narrowed liability for felony murder. (People v. Lewis (2021) 11 Cal.5th 952 (Lewis).) SB 1437 also created a procedure, set forth in section 1170.95, by which a defendant previously convicted of murder under those theories could petition for resentencing.

On May 1, 2019, Johnson filed a petition under section 1170.95, asserting he was entitled to vacatur of his felony murder conviction and resentencing. The trial court appointed counsel and the parties submitted briefs on the issue.[4] The People argued Johnson was ineligible for resentencing as a matter of law because the jury found true the felony murder special circumstance allegations pursuant to section 190.2, which tracks the language for felony murder under section 189, subdivision (e)(3), as amended by SB 1437.[5]

On January 7, 2021, the trial court denied Johnson’s petition. It found his conviction for murder with felony murder special circumstance findings rendered him ineligible for resentencing under section 1170.95 as a matter of law. The court alternatively found Johnson to be ineligible because he was “one of the actual killers (or at the very least, a direct aider and abettor) and personally participated in beating and kicking the victim which were contributing factors to the victim’s untimely death.” Johnson timely appealed.

DISCUSSION

The People concede the trial court erred when it weighed the evidence to determine Johnson was either the actual killer or a direct aider and abettor. The remaining issue on appeal is whether the jury’s special circumstance findings rendered Johnson ineligible for relief under section 1170.95 as a matter of law. We conclude, as we have in previous opinions, that Johnson is not ineligible on this basis.

Johnson contends the trial court erred when it denied his petition based on the burglary-murder and robbery-murder special circumstance findings, relying on our opinion in People v. Torres (2020) 46 Cal.App.5th 1168, 1179 (Torres), abrogated on different grounds in Lewis, supra, 11 Cal.5th 952. The People argue Torres was wrongly decided. We adhere to the rule we expressed in Torres, as well as in People v. Smith (2020) 49 Cal.App.5th 85, 93 (Smith), review granted July 22, 2020, S262835 and People v. York (2020) 54 Cal.App.5th 250, 260–263 (York), review granted Nov. 18, 2020, S264954. In Torres, we held that a felony murder special circumstance finding that predates the Supreme Court’s clarification of the meaning of “major participant” and “reckless indifference to human life” in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) is an insufficient basis for a trial court to deny a petition for relief at the prima facie stage of section 1170.95 proceedings. (Torres, supra, 46 Cal.App.5th at p. 1179.)

The People argue that even if Torres is correct and a pre-Banks and Clark special circumstance finding does not render Johnson ineligible for relief as a matter of law, this court may determine de novo whether Johnson’s conviction satisfies Banks and Clark. ~(RB 17, 26)~ If the de novo determination shows that the Banks and Clark requirements were satisfied, any Torres error by the trial court under section 1170.95 would be harmless.

We have also previously rejected this argument. (Smith, supra, 49 Cal.App.5th at p. 95; York, supra, 54 Cal.App.5th at p. 262; Torres, supra, 46 Cal.App.5th at p. 1179; contra People v. Law (2020) 48 Cal.App.5th 811, 816, 822, review granted July 8, 2020, S262490.) Whether a defendant was a major participant acting with reckless indifference within the meaning of Banks and Clark is a factual determination which cannot be made by simply reviewing the existing record at this stage of the proceedings. (Lewis, supra, 11 Cal.5th at p. 972.) The prior factual record “is not the only consideration that the trial court must take into account for purposes of section 1170.95. Where the record of conviction does not preclude a petitioner from making a prima facie showing that he falls within the statute’s provisions as a matter of law, the petitioner is not confined to presenting evidence contained in the record of conviction in seeking relief.” (Smith, supra, 49 Cal.App.5th at p. 95.) Once a prima facie case has been made, factual determinations must be deferred to the order to show cause hearing under section 1170.95, subdivision (d), at which the parties have the right to “offer new or additional evidence.” (§ 1170.95, subd. (c)(3).)

DISPOSITION

The trial court’s order denying Johnson’s resentencing petition is reversed and the matter remanded for the trial court to issue an order to show cause and conduct a hearing pursuant to section 1170.95, subdivision (d).

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

[1] All undesignated statutory references are to the Penal Code.

[2] A full recitation of the facts of the underlying crime and criminal trial may be found in our previous opinion at People v. Johnson (July 10, 2008, B197179) [nonpub. opn.]).

[3] In relevant part, the felony murder special circumstance statute, in 2003 and now, provides a penalty of death or life imprisonment without the possibility of parole for a defendant who was "not the actual killer” but who, “with reckless indifference to human life and as a major participant,” aids and abets the commission of an enumerated felony, including robbery and burglary, which resulted in the death of a person. (§ 190.2, subds. (a)(17)(A) & (G), (d).)

[4] The parties submitted extensive briefing in the trial court on the constitutionality of SB 1437. The parties do not address this issue on appeal, and we do not discuss it.

[5] Section 189, subdivision (e) now provides that “[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [(in this case, robbery and burglary)] in which a death occurs is liable for murder only if one of the following is proven: [¶] . . . [¶] (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.”