People v. Johnson CA1/1 ( 2022 )

Filed 1/19/22 P. v. Johnson CA1/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A158366
v.
JULIAN H. JOHNSON, (Contra Costa County
Super. Ct. No. 51603604)
Defendant and Appellant.
In our March 2021 opinion in this matter, we ruled that appellant
Julian H. Johnson was ineligible for resentencing under the procedures set
forth in Penal Code1 section 1170.95 because he had been convicted of
voluntary manslaughter and attempted murder, not murder. (People v.
Johnson (Mar. 30, 2021, A158366) [nonpub. opn.] (Johnson I).) In
December 2021, our Supreme Court directed us to reconsider the cause in
light of Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate Bill 775), which
clarifies that section 1170.95 does apply to persons convicted of voluntary
manslaughter and attempted murder.
Both appellant and the Attorney General agree that this matter should
be remanded to the trial court for further consideration. We concur.
1 All statutory references are to the Penal Code.
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Accordingly, we vacate our prior opinion, reverse the order denying
appellant’s resentencing petition, and remand the matter to the trial court
with directions.
FACTUAL AND PROCEDURAL BACKGROUND
As we recounted in our prior opinion, “[o]n June 17, 2015, appellant
drove Clydedale Hoskin and Miguel Gutierrez to a location in Antioch to
acquire narcotics and commit a robbery. 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.” (Johnson I, supra, A158366, fn. omitted.)
In 2016, appellant and two codefendants were charged with two counts
of murder (§ 187, subd. (a)), one count of attempted second degree robbery
(§§ 664/211), and one count of attempted murder (§§ 664/187, subd. (a)).
Several enhancements were also alleged against appellant, including four
firearm use enhancements. (§ 12022.5, subd. (a).)
In 2018, 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 also admitted the firearm use
enhancement allegations and two prior prison term enhancements. (§ 667.5.)
The trial court sentenced him to a determinate term of 20 years in state
prison.
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Effective January 1, 2019, the Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.) “to amend the felony murder rule and the natural and
probable consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) As
part of this legislation, the bill added section 1170.95 to provide a procedure
for those convicted of a qualifying offense to seek vacature of their conviction
and resentencing on any remaining counts. (See former § 1170.95, subd. (a).)
In 2019, appellant filed a petition for resentencing pursuant to
section 1170.95. At that time, section 1170.95 expressly applied to persons
“convicted of felony murder or murder under a natural and probable
consequences theory.” (Former § 1170.95, subd. (a).) The trial court
appointed counsel, received briefing, and then summarily denied the petition
on the ground that the statute did not apply to persons who pleaded guilty
to voluntary manslaughter and attempted murder as lesser offenses of
murder.
In March 2021, this court issued a nonpublished opinion affirming the
trial court’s order denying appellant’s petition for resentencing. (Johnson I,
supra, A158366.) We held that persons convicted of voluntary manslaughter
and attempted murder were ineligible for resentencing under
section 1170.95. (Johnson I, supra, A158366.) The following month,
appellant filed a petition for review with the Supreme Court (S268537).
While this matter was pending, the Legislature enacted Senate
Bill 775, which amended section 1170.95 to clarify that persons convicted of
manslaughter and attempted murder may be eligible for resentencing under
that section. As amended, section 1170.95 expressly applies to persons
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“convicted of . . . attempted murder under the natural and probable
consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)
On December 29, 2021, S268537, the Supreme Court transferred
appellant’s case back to this court with directions to vacate our prior decision
and reconsider the cause in light of Senate Bill 775. We received a
supplemental brief from appellant arguing that the case must be remanded
to the trial court in light of the recent amendments to section 1170.95 that
permit persons convicted of voluntary manslaughter and attempted murder
to seek resentencing under this this law. The Attorney General submitted a
letter agreeing that appellant is entitled to a remand for further proceedings.
We agree with the parties and will remand the matter to the trial court with
directions.
DISCUSSION
Prior to the enactment of Senate Bill 775, California Courts of Appeal
were uniform in concluding that persons who pleaded guilty to manslaughter
or attempted murder as lesser offenses of murder were not eligible for
resentencing under section 1170.95. (See, e.g., People v. Turner (2020)
45 Cal.App.5th 428, 435–436.) One of the Legislature’s stated purposes in
enacting Senate Bill 775 was to clarify that section 1170.95 is applicable to
manslaughter and attempted murder convictions. (See Stats. 2021, ch. 551,
§ 1, subd. (a) [“[T]his legislation . . . [¶] . . . [c]larifies that persons who were
convicted of attempted murder or manslaughter under a theory of felony
murder and the natural [and] probable consequences doctrine are permitted
the same relief as those persons convicted of murder under the same
theories”].)
Senate Bill 775 was passed as nonurgency legislation during the
regular session and became effective on January 1, 2022. (Cal. Const.,
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art. IV, § 8, subd. (c)(1); see People v. Camba (1996) 50 Cal.App.4th 857, 862.)
Because appellant’s appeal from the denial of his resentencing petition was
not final by this date, and he is eligible to benefit from this remedial
legislation. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia
(2018) 28 Cal.App.5th 961, 973.)
The amendments to section 1170.95 under Senate Bill 775 compel the
conclusion that appellant’s resentencing petition is entitled to further
consideration under section 1170.95. On remand, the trial court must
determine whether appellant has stated a prima facie case for relief under
section 1170.95. (§ 1170.95, subd. (c).) If the court finds a prima facie case is
stated, it shall issue an order to show cause and hold a hearing “to determine
whether to vacate the . . . attempted murder, or manslaughter conviction[s]
and to recall the sentence and resentence [appellant] on any remaining
counts in the same manner as if [he] had not previously been sentenced,
provided that the new sentence, if any, is not greater than the initial
sentence.” (§ 1170.95, subd. (d)(1).) We express no opinion as to the
appropriate outcome of any further proceedings.
DISPOSITION
The order denying appellant’s petition for resentencing under
section 1170.95 is reversed. Upon remand, the superior court shall conduct
further proceedings consistent with this opinion.
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SANCHEZ, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A158366
People v. Johnson
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