People v. Johnson CA4/1 ( 2021 )

Filed 12/17/21 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077777
Plaintiff and Respondent,
v.
(Super. Ct. No. INF053406)
JOHNNIE DALERAE JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County, John
D. Molloy, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Alan L. Amann and Felicity Senoski, Deputy Attorneys General,
for Plaintiff and Respondent.
A jury in 2008 convicted defendant Johnnie Dalerae Johnson and
Reggie Allan Bullock, Jr. of second degree murder (Pen. Code, § 187, subd.
(a))1 for the beating death of fellow inmate Charles Green at the
Chuckawalla Valley State Prison (Chuckawalla). We affirmed Johnson’s
conviction in People v. Bullock, et al. (Nov. 21, 2011, D055890 [nonpub. opn.])
(Bullock), concluding Johnson and Bullock were prosecuted as “direct
perpetrators” of Green’s murder under an implied malice theory and there
was “no evidence” to support a finding (for purposes of a lesser-included
offense instruction) that Johnson acted without malice during what we
described as a “vicious,” unprovoked attack on Green. (Bullock, supra,
D055890.)
In January 2019, Johnson filed a petition under section 1170.95 to
vacate his second-degree murder conviction (the Petition). The trial court,
after appointing Johnson counsel and considering the multiple briefs
submitted by the parties, initially issued an order to show cause (OSC) why
the Petition should not be granted. It then subsequently reconsidered that
ruling and summarily denied the Petition, finding Johnson was ineligible for
relief under section 1170.95 as a matter of law. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 2
A. Johnson’s Murder Trial
Chuckawalla is a low-level prison in California’s prison system. In
June 2005, Bullock and Johnson were housed in building C-7 on C yard.
1 All further undesignated statutory references are to the Penal Code
unless indicated otherwise.
2 We derive the factual background primarily from our Bullock opinion,
which was included in the record.
2
Johnson was scheduled to be released in about six months, after he was
incarcerated for violating a condition of probation. (Bullock, supra,
D055890.)
“Frank Barbarossa, Robert Deffenbaugh and Jack Woller also were
housed in building C–7.[3] Barbarossa was the ‘shot caller’ for white inmates
in C yard . . . . As a shot caller, Barbarossa had authority over what
happened in C yard among white inmates; he made decisions and issued
orders.” (Bullock, supra, D055890.)
On June 20, 2005, Green was transferred to C Yard. On his arrival,
Deffenbaugh and Woller asked Green for his “paperwork,” which included his
commitment offense. “The following day, Deffenbaugh and Woller learned
that Green was a child molester[.] Barbarossa authorized a ‘hit’ on Green.
Woller and Deffenbaugh told Barbarossa that Johnson had agreed to assault
Green. Bullock volunteered to help Johnson.” (Bullock, supra, D055890)
“Johnson wrote an anonymous note to prison guards asking that Green
be removed because his life was in danger, and Bullock directly warned
Green that he was in danger. Nonetheless, Bullock and Johnson complied
with Barbarossa’s directive as transmitted by Deffenbaugh . . . .” (Bullock,
supra, D055890.)
Sometime after 9:00 p.m. on June 21, Bullock entered the section C
bathroom, intercepted Green, and punched him in the chest and kicked him
in the head with the bottom of his boot. Inmate Elton Chubbuck, who was
near the bathroom, testified he heard a “loud slap and then ‘a kaboom’ ” while
Green and Bullock were in the bathroom. Immediately after Bullock left the
3 Barbarossa, Bullock, Deffenbaugh, and Woller are not parties to this
appeal.
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bathroom, Johnson entered. Inmates next heard “slapping, thudding and
stomping noises coming from the bathroom before Johnson left.” (Bullock,
supra, D055890.)
After the attack, Chubbuck entered the bathroom and found Green
lying on the floor. Chubbuck notified correctional officers, and a few minutes
later a prison medical team responded to treat Green. “A medical technician
noted that Green had numerous injuries, including a deep laceration to his
left temple, bruises and hematomas on both temples, a raised red area on his
sternum and abrasions to his upper back.” Shortly before midnight, Green
was transported by ambulance to Palo Verde Hospital. A CT scan showed
that Green had a blood clot on his brain. Due to the severity of his injuries,
hospital staff contacted three hospitals with trauma centers. At 5:45 a.m.,
Green was flown to San Diego and admitted at 7:40 a.m. to the head trauma
center at UC San Diego Medical Center. (Bullock, supra, D055890.)
On arrival, doctors found Green in a comatose condition with fixed
dilated pupils. Doctors determined he had an epidural hemorrhage on the
right side of his brain, a blood clot, bruising to his brain and swelling as a
result of “blunt trauma injury.” Green underwent surgery, after which he
was placed on life support. Three days later, Green remained nonresponsive
and comatose. After being told Green had an irrecoverable brain injury, his
family on June 27 decided to withdraw life support. Green died shortly
thereafter. (Bullock, supra, D055890.)
“Green’s autopsy revealed a minimum of six or seven separate impacts
to the head. Green suffered all levels of injuries to his head: external
injuries; skull fractures extending from both eyes; hemorrhages throughout
his scalp; two epidural hemorrhages, subdural hemorrhages and bleeding
into the brain. . . . The injuries were unlike those occurring in simple
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collapse, fall-type situations. [¶] The medical examiner testified the cause of
death was blunt-force head injuries.” (Bullock, supra, D055890.)
“When interviewed by a sheriff’s detective two months after the attack
on Green, Johnson said that he stomped on Green’s head ‘three or four times’
and ‘for a couple minutes.’ Johnson also said that he stomped on Green’s
nose with the knowledge that if his nose was pushed into his brain with
sufficient force, it would result in brain damage and death. This information
was included in a redacted transcript of the interview that was read to the
jury.” (Bullock, supra, D055890.)
In defense, a neurosurgeon testified that Green should have received
immediate neurological care. The expert testified that the 10-hour delay in
getting Green this care was “medically unacceptable and was a substantial
factor in the cause of death.” (Bullock, supra, D055890.)
B. Appeal
Johnson appealed his second-degree murder conviction. Among other
arguments he contended trial counsel was ineffective for failing to object to
redactions made to his postarrest statement to police. Johnson also joined
Bullock in arguing the court erred in failing to instruct the jury sua sponte on
involuntary manslaughter. (Bullock, supra, D055890.)
In rejecting Johnson’s argument his counsel was ineffective, we
concluded in the direct appeal that the redacted version of his postarrest
interview did not leave the jury with a “misleading picture of his role in
Green’s attack.” To the contrary, we concluded “there [was] no question that
Johnson’s participation in the attack was extensive and vicious. The jury
was aware that Bullock initiated the attack on Green and knew that he
pulled Green down from behind, punched him in the chest and then kicked
him once in the head. When Johnson entered the bathroom, Green was lying
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on the bathroom floor defenseless. Johnson elevated the level of violence by
repeatedly kicking Green in the head and stomping on his nose. Johnson did
this knowing that brain damage or death could result if the nose was
forcefully pushed into the brain.” Based on this same undisputed evidence,
we also concluded that, even if the court erred in making one or two
redactions to Johnson’s statement, that error was harmless under “any
standard of review.” (Bullock, supra, D055890.)
We also rejected Johnson’s argument that the trial court had a sua
sponte duty to instruct on involuntary manslaughter. We held the evidence
was undisputed that “Green's fatal injuries were inflicted by the use of great,
violent force”; that the “attack was an aggravated felony assault by means of
force likely to produce great bodily injury (§ 245, subd. (a)(1))”; and that,
based on the nature of the attack, its remote location (i.e., the bathroom), and
the severity of the injuries Green sustained, “no reasonable jury could find
Johnson engaged in the type of activity that would support an involuntary
manslaughter conviction.” (Bullock, supra, D055890.)
But that’s not all. In addressing Johnson’s argument there was
evidence to support a lesser-included instruction because the “jury could have
concluded that he did not intend to kill Green,” we found he was “mistaken,”
and concluded there was “no evidence,” as opposed to merely a lack of
substantial evidence, to show Johnson acted without implied malice in the
aggravated assault of Green. (Bullock, supra, D055890.)
C. The Petition
In January 2019, Johnson filed his Petition pursuant to Senate Bill No.
1437 (Stats. 2018, ch. 1015) (Sen. Bill No. 1437), which had become effective
on January 1. The court appointed counsel to represent Johnson. On
January 17, 2020, the court issued an OSC why the Petition should not be
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granted. The People in response filed a supplemental opposition to the
Petition, which Johnson opposed in an OSC brief. The People thereafter filed
a memorandum of points and authorities on the scope of an OSC hearing
under section 1170.95. Johnson in return filed a reply to the People’s points
and authorities regarding the scope of an OSC hearing.
On March 13, 2020, the trial judge returned the matter to the previous
department for reconsideration of its finding that Johnson had made a prima
facie showing for relief on his Petition. On July 24, 2020, the trial court that
had originally issued the OSC heard additional argument and, over the
defense’s objection, agreed with the People that Johnson’s record of conviction
showed he was statutorily ineligible for relief under section 1170.95 as a
matter of law.
In reaching its decision, the trial court exclusively relied on our opinion
in the direct appeal. In Bullock, we concluded “there was no question that
Johnson’s participation in the attack was extensive and vicious”; and no
evidence Johnson acted without implied malice (Bullock, supra, D055890).
Because Bullock established as a matter of law that Johnson would be
convicted of murder notwithstanding the change to section 188, the trial
court summarily denied the Petition.
II. DISCUSSION
A. Guiding Principles
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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
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reckless indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952,
959 (Lewis); see People v. Gentile (2020) 10 Cal.5th 830, 843.)
As relevant here, Senate Bill No. 1437 achieves these goals by
amending section 188 to provide that, “[e]xcept as stated in subdivision (e) of
Section 189 [applicable to felony murder], 4 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.”
(§ 188, subd. (a)(3).)
In addition to amending sections 188 and 189, Senate Bill No. 1437
added section 1170.95, which provides a procedure for convicted murderers—
who could not be convicted under the law as amended—to seek relief
retroactively. Under this statute, an offender must file a petition in the
sentencing court averring that:
“(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 convicted for
first degree or second degree murder[; and]
“(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, subd. (a)(1)-
(3).)
4 To be found guilty for murder under newly amended section 189, a
person must have been the “actual killer”; or acted with an “intent to kill”
and aided and abetted the actual killer in committing first degree murder; or
been a “major participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e)(1)-(3).)
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Counsel must be appointed if requested by petitioner and if his or her
petition is facially valid. (Lewis, supra, 11 Cal.5th at p. 970.) “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.”
(§ 1170.95, subd. (c).) “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.”
(Ibid.)
Key to the instant case, the Supreme Court recently held that a trial
court can rely on a petitioner’s record of conviction in determining whether he
or she has made a prima facie showing of eligibility under section 1170.95.
(See Lewis, supra, 11 Cal.5th at p. 971 [the “record of conviction will
necessarily inform the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit from those
that are clearly meritless”].) This inquiry is consistent with the overall
purpose of section 1170.95, which is “to ensure that murder culpability is
commensurate with a person’s actions, while also ensuring that clearly
meritless petitions can be efficiently addressed as part of a single-step prima
facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).)” (Lewis, at
p. 971.)
Although the prima facie inquiry under subdivision (c) of section
1170.95 is “limited” (Lewis, supra, 11 Cal.5th at p. 971), if the record of
conviction, “including the court’s own documents, ‘contain[s] facts refuting
the allegations made in the petition,’ then ‘the court is justified in making a
credibility determination adverse to the petitioner.’ ” (Ibid., quoting People v.
Drayton (2020) 47 Cal.App.5th 965, 979 (Drayton).) Even though appellate
opinions are part of the record of conviction, their “probative value” is to be
determined on a case-by-case basis and such opinions “ ‘might not supply all
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answers.’ ” (Lewis, at p. 972.) In those instances, a trial court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion’ ” in determining whether a petitioner has made a prima facie
showing of eligibility under section 1170.95. (Lewis, at p. 972, quoting
Drayton, at p. 980.)
We review de novo the question of whether the trial court properly
reviewed Johnson’s record of conviction in determining he was ineligible for
relief. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; see People v. Duchine
(2021) 60 Cal.App.5th 798, 811 (Duchine) [applying de novo review to claims
of error based on the interpretation of section 1170.95].)
B. Analysis
Johnson contends the trial court erred in denying his Petition because
“the issue of malice was disputed at trial where he was tried with four other
inmates and the jurors easily could have been confused as to whether or how
to apply the natural and probable aiding and abetting instructions read after
closing arguments.” We find this contention unavailing.
First, the trial court properly relied on Johnson’s record of conviction,
including our opinion in the direct appeal, in determining whether he made a
prima facie showing of eligibility for relief under section 1170.95. (See Lewis,
supra, 11 Cal.5th at pp. 970-971; Drayton, supra, 47 Cal.App.5th at p. 979.)
Second, we agree with the trial court that Johnson is not entitled to
relief under the statute as a matter of law. In Bullock, we held there was no
evidence Johnson acted without malice in the murder of Green. The trial
court thus found our opinion in the direct appeal dispositive in denying
Johnson relief under section 1170.95. (See People v. Murillo (2020)
54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978 [a denial of
a defendant’s petition at the prima facie stage under section 1170.95 is
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proper “if the record of conviction demonstrates that ‘the petitioner is
ineligible for relief as a matter of law’ ”]; cf. Duchine, supra, 60 Cal.App.5th
at p. 816 [reversing denial of a petition for resentencing because trial court
engaged in “judicial factfinding on issues not conclusively resolved by the
record of conviction”].)
Third, our conclusion in the direct appeal distinguishes the instant case
from those decisions that have recently come under scrutiny based on their
application of a substantial evidence test. (See, e.g., People v. Garcia (2020)
57 Cal.App.5th 100, 106, review granted February 10, 2021, S265692
[concluding a petitioner failed to carry his burden at the prima facie stage
because “the record of conviction contains substantial evidence based on
which a reasonable trier of fact could find the petitioner guilty of murder
beyond a reasonable doubt under current law despite the changes made by
Senate Bill 1437”]; contra, People v. Aleo (2021) 64 Cal.App.5th 865, 872
[recognizing the majority of appellate courts disagree with Garcia and have
found the substantial evidence test has no application at the prima facie
stage]; People v. Secrease (2021) 63 Cal.App.5th 231, 246 (Secrease), review
granted June 30, 2021, S268862 [“In a section 1170.95 proceeding, the
ultimate question is not a backward-looking inquiry into whether a past
conviction finds support in substantial evidence,” but “instead whether,
applying changes brought about by Senate Bill 1437, there is a prima facie
case ‘that [the defendant] did not, in fact, act or harbor the mental state
required, for a murder conviction under current law’ ”].)
Fourth, for the same reason(s) we also reject Johnson’s argument that
the jury could have been “confused,” much less “easily confused” as he
contends, by the trial court’s aiding and abetting instructions. As we made
clear in the direct appeal, Johnson and Bullock were tried and convicted as
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director perpetrators in Green’s murder, while Barbarossa, Deffenbaugh, and
Woller were prosecuted on an aiding and abetting theory. (Bullock, supra,
D055890 [“In this joint trial, Bullock and Johnson were prosecuted as direct
perpetrators of the murder under a theory they acted with implied malice”
(italics added)]; (Bullock, supra) [“Bullock and Johnson were tried along with
Barbarossa, Deffenbaugh and Woller on the murder charge [and] [t]he latter
three were prosecuted on an aiding and abetting theory rather than as direct
perpetrators,” (italics added)].) The prosecutor also made clear during closing
that Barbarossa, Deffenbaugh, and Woller were liable, if at all, as aiders and
abettors and therefore, unlike Johnson, were not being prosecuted as direct
participants under an implied malice theory. (See People v. White (2014) 223
Cal.App.4th 512, 525 [the record of conviction may include the parties’ closing
arguments].)
Fifth, we reject Johnson’s contention the trial court erred because in
Bullock we allegedly did not address what he claims is an open-ended issue
regarding the accuracy of his postarrest interview transcript. Initially, we
note the issue of the accuracy of the transcript was expressly litigated in the
direct appeal. We held in Bullock the redactions did not leave “the jury with
a misleading picture of [Johnson’s] role in Green’s attack” (Bullock, supra,
D055890); Johnson was not prejudiced by the redactions; and any error was
harmless under any standard of review. (Bullock, supra.)
In addition, “[n]othing in the language of section 1170.95 suggests it
was intended to provide redress for allegedly erroneous prior factfinding. In
particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous
prior findings or the possibility of proving contrary facts if given a second
chance. Rather, it requires that the petitioner could not be convicted of
murder because of the changes to sections 188 and 189, not because a prior
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fact finder got the facts wrong. The purpose of section 1170.95 is to give
defendants the benefit of amended sections 188 and 189 with respect to
issues not previously determined, not to provide a do-over on factual disputes
that have already been resolved.” (People v. Allison (2020) 55 Cal.App.5th
449, 461, (italics omitted); see also Secrease, supra, 63 Cal.App.5th at pp. 254-
255 (review granted) [“section 1170.95, subdivision (c) cannot reasonably be
read to permit a ‘do-over’ of factual issues that were necessarily resolved
against a section 1170.95 petitioner by a jury”].)
III. DISPOSITION
The order denying Johnson’s section 1170.95 petition is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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