People v. Johnson CA2/7 ( 2023 )

Filed 8/29/23 P. v. Johnson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B321220
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA053603)
v.
ANTWOINE LASHEY
JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Reversed and
remanded with directions.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, William H. Shin and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________
Antwoine Lashey Johnson appeals from a postconviction
order denying his petition for resentencing under Penal Code
1172.61 as to his attempted murder conviction entered pursuant
to a negotiated plea in which he also admitted he personally used
a firearm. After appointing counsel and ordering briefing, the
superior court determined at the prima facie review phase that
Johnson was not entitled to relief because he was the actual
shooter. The court relied on nine police reports, including an
incident report and eight supplemental reports, in which the
victim and multiple witnesses identified Johnson as the shooter,
as well as Johnson’s admission that he personally used a firearm
in commission of the offense.
On appeal, Johnson contends the superior court erred in
relying on the police reports to find him ineligible for relief
because the reports were inadmissible hearsay and not part of
the record of conviction. Johnson also argues his admission he
personally used a firearm does not mean he was the shooter. We
agree with both contentions and reverse. We direct the superior
court to issue an order to show cause and to hold an evidentiary
hearing.
1 Further undesignated statutory references are to the Penal
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Police Reports Describing the Shooting
On June 24, 2011 five deputies and two detectives from the
Los Angeles County Sheriff’s Department interviewed victim
Joshua Bragg and multiple witnesses regarding the shooting of
Bragg that day, and a third detective interviewed two witnesses
four days later. Each officer authored a police report setting
forth the witness statements.
1. Deputy Foster’s incident report
On June 24 Deputy C. Foster responded to a call involving
an assault with a deadly weapon. When Deputy Foster arrived at
the scene, he saw Bragg lying down near the front door of a house
covered in blood. Bragg told Deputy Foster that he was shot by
an “unknown [Black] male adult” (later identified as Johnson)
who left the location in a green Honda. Bragg was then
transported to the hospital.
Bragg’s cousin James Williams stated that when he walked
to the front yard that day, he saw Johnson pull up to the front of
the residence in a green Honda. Johnson asked Bragg, “‘Where
are you from?’” Williams told Johnson that Bragg “does not gang
bang.” Johnson then brandished a small semiautomatic gun and
chased Bragg around a vehicle parked in the driveway. Williams
tackled Johnson, and the gun flew out of Johnson’s hand.
Johnson then retrieved the gun and shot at Bragg three to four
times.
Deputy Foster also interviewed Williams’s mother, Louann
Blocker. She heard arguing in the front yard and saw Bragg
standing near her garage door. Blocker stated Johnson asked
3
Bragg where he was from, then Johnson brandished a handgun,
chased Bragg, and shot at Bragg three to four times.
2. Detective Owen’s and Deputy Edwards’s supplemental
reports
Detective S. Owen also responded to the scene, along with
Sergeant R. Rush. The officers saw Bragg on the ground bleeding
from a gunshot wound to his left arm. Williams told Detective
Owen that neighbors Adrian Benson and Timeshia Sherriel had
spoken with Johnson prior to the incident.
Sherriel told Detective Owen and Sergeant Rush that Bragg
walked by her house before the shooting and said to Sherriel’s
cousin, Chris Prather, “‘What’s up, blood?’” Prather responded,
and Bragg then walked away. A Black man identified by Sherriel
as “G-Face”2 then entered his car and drove in the same direction
as Bragg. Prather said he was “‘going to get into the middle of
this,’” and he rode his bike in the same direction as the other two
men. However, the two women told Prather not to get involved,
grabbed him, and ran back to their home with him.
Deputy Edwards then arrived at the location with his partner
and detained Benson in the back seat of his patrol car, where the
two deputies interviewed her. Benson told the deputies she saw
a man she knew as “G-face” exit a green car with a gun in his
hand. She knew G-face because her “baby’s daddy” was in the
same gang, Blood on Point, and the men were friends. Benson
saw four Black men yelling in the middle of the street, including
G-face and three other Black men she did not know. Benson then
2 Sherriel initially identified the shooter as “Dog,” but after
being detained in the back seat of Detective Knittel’s patrol car,
she stated it was “G-Face” who was the shooter.
4
saw G-face point his gun at one of the men. Benson went inside
her house, and shortly thereafter she heard a gunshot. Using
Sheriff’s Department resources, Deputy Edwards determined
Johnson was a “Blood on Point” gang member who went by the
name of “‘G-Face.’” Further, Benson’s “baby’s daddy” was
Johnson’s brother.
3. Deputy Castillo’s supplemental report
Later on June 24 Deputy Y. Castillo interviewed Bragg at
the hospital. Bragg stated he was on the way to the store to meet
his girlfriend when he passed by a group of people standing
outside a house down the street from where he lived. The people
stared at him as he walked by. On his way back to his house
with his girlfriend, Bragg passed by the same house and was
approached by a Black male adult, who stated, “‘What up blood?’”
Bragg responded that he did not “‘bang’” and “he was not a
blood.” Bragg’s girlfriend pulled him away, telling him to ignore
the man. When Bragg and his girlfriend started to walk away,
one of the men said, “‘[S]ave yourself[,] keep walking.’” ~CT 72)~
Shortly after Bragg arrived home, a green Honda pulled up,
and Johnson exited the vehicle and pulled a small gun from his
waistband. Johnson said, “‘So you thought I was gonna leave you
alone huh?’” Bragg approached Johnson and explained he was
not in a gang. Johnson began to chase Bragg around the vehicle
parked in the driveway of Bragg’s home. Williams then tackled
Johnson to the ground at the end of the driveway, and Johnson
dropped his gun in the middle of the street. Bragg tried to grab
the gun, but Johnson reached it first. Johnson ran after Bragg
and shot at him as Bragg ran toward his house. Bragg heard two
5
gunshots and felt his arm “go ‘dead.’” Johnson got back in the
green Honda and drove off.
4. Deputy Tanner’s supplemental report
On June 24 Deputy A. Tanner interviewed neighbor Jesus
Alvarez. Alvarez saw a Black man exit a vehicle, drop his gun,
pick it up, then approach Bragg. The man attempted to fire at
Bragg, but the gun did not fire. Bragg attempted to run away.
The man then fired approximately three shots at Bragg, ran back
to his vehicle, and drove away.
5. Deputy Ruiz’s supplemental report
On June 24 Deputy M. Ruiz interviewed two neighbors,
Katie and Wendy Klingerkamer. Katie stated she saw a group of
people yelling and arguing in Bragg’s front yard. She saw a
Black male in his mid-20’s on the street, pointing a gun toward
Bragg’s house. The man then fired at least three shots in the
direction of Bragg’s house. Katie hid below her window, then
heard a car speed off. Wendy said she was in the back of her
home when she heard at least four gunshots and women
screaming.
6. Detective Bishop’s supplemental report
On June 24 Detective Bishop interviewed Katie
Klingerkamer’s sister Haley. Haley heard people arguing outside
of her house, and she saw two men fighting in the street. She
heard five gunshots and ducked back into her house. She did not
see who fired the shots.
6
7. Detective D. Welle’s supplemental reports
Detective D. Welle interviewed Bragg on June 28. Bragg’s
statements were consistent with his prior statements to Deputy
Castillo. Bragg identified Johnson in a six-pack photographic
lineup as the shooter, indicating he was 70 percent sure Johnson
was the shooter. Deputy Welle also interviewed Williams, who
gave statements consistent with the prior statements he made to
Deputy Foster. Williams identified Johnson in a six-pack
photographic lineup, stating he was 100 percent sure Johnson
was the shooter.
Detective Welle met with Alvarez on June 29. Alvarez
identified Johnson in a six-pack photographic lineup as the
shooter, stating he was 90 percent sure of his identification.
B. The Information, Negotiated Plea, and Sentencing
The information charged Johnson with the attempted
willful, deliberate, and premeditated murder of Bragg. (§§ 187,
subd. (a), 664.) The information specially alleged the offense was
committed for the benefit of, at the direction of, or in association
with a criminal street gang within the meaning of section 186.22,
subdivision (b)(4). The information also specially alleged Johnson
personally used a firearm and personally and intentionally
discharged a firearm causing great bodily injury to Bragg within
the meaning of section 12022.53, subdivisions (b), (c), and (d).
On February 25, 2012, pursuant to a negotiated disposition,
Johnson pleaded no contest to attempted murder. Johnson
admitted he personally used a firearm within the meaning of
section 12022.5, subdivision (a), and that the offense was
committed for the benefit of a criminal street gang pursuant to
section 186.22, subdivision (b)(1)(C). In joining in the plea,
7
Johnson’s counsel stipulated “to a factual basis as alleged in the
police report.” The trial court accepted Johnson’s plea and
sentenced him to an aggregate term of 23 years in state prison,
comprised of the upper term of nine years for attempted murder,
plus the middle term of four years for the firearm enhancement
and 10 years for the gang enhancement.
C. Johnson’s Petition for Resentencing
On January 7, 2022 Johnson, representing himself, filed a
form petition for resentencing in which he argued he was eligible
under section 1170.95 (now section 1172.6) because he pleaded no
contest to attempted murder, he could have been convicted at
trial under the felony murder doctrine or based on the natural
and probable consequences theory, and he could not presently be
convicted of attempted murder because of changes made to
sections 188 and 189, effective January 1, 2019. On January 12,
2022 the court appointed counsel to represent Johnson.
In their June 8, 2022 response, the People argued Johnson
did not qualify for resentencing because the police reports showed
“[Johnson] was the sole perpetrator of the attempted murder of
Joshua Braggs” and, based on the police reports, “there is no
evidence that felony-murder or natural and probable
consequences theories of murder were available to the
prosecution for the commission of this crime.” The People
asserted the police reports were part of the record of conviction
because the attorneys stipulated the reports provided “the factual
bases in the negotiated plea.” The People added that Johnson’s
admission he personally used a firearm in the commission of the
attempted murder also showed he was the actual shooter. The
People attached the police incident report and eight supplemental
8
police reports as exhibits to the response. Johnson did not file a
reply.
At the outset of the June 14, 2022 hearing, the superior
court indicated it had read the People’s moving papers (Johnson’s
attorney did not file a brief). Johnson’s attorney submitted
without presenting an argument. The court denied Johnson’s
petition, explaining, “The defendant is, in fact, the sole shooter in
this matter. And in reviewing the plea colloquy, he does admit to
personally using the firearm as noted, and the court doesn’t find
a prima facie showing has been made.”
Johnson timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) eliminated the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony-murder rule. (People
v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952 (Lewis), 957; People v. Gentile (2020) 10 Cal.5th
830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981,
984.) Section 188, subdivision (a)(3), now prohibits imputing
malice based solely on an individual’s participation in a crime
and requires proof of malice to convict a principal of murder,
except under the revised felony-murder rule as set forth in
section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842-
843.) Section 189, subdivision (e), now requires the People to
prove specific facts relating to the defendant’s individual
culpability: The defendant was the actual killer (§ 189,
9
subd. (e)(1)); although not the actual killer, the defendant, with
the intent to kill, assisted in the commission of murder in the
first degree (§ 189, subd. (e)(2)); or the defendant was a major
participant in an underlying felony listed in section 189,
subdivision (a), and acted with reckless indifference to human life
as described in section 190.2, subdivision (d) (the felony-murder
special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong,
at p. 708.) Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 551, § 2), effective January 1, 2022, expanded the scope
of potential relief by applying Senate Bill No. 1437’s ameliorative
changes to individuals convicted of attempted murder and
voluntary manslaughter. (See § 1172.6, subd. (a).)
Senate Bill 1437 also provided a procedure (now codified in
section 1172.6) for an individual convicted of felony murder or
murder under the natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if the individual could not
have been convicted of murder under Senate Bill 1437’s changes
to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959;
People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the sentencing court must appoint counsel to
represent the petitioner upon his or her request pursuant to
section 1172.6, subdivision (b)(3). Further, upon the filing of a
facially sufficient petition, the court must direct the prosecutor to
file a response to the petition and permit the petitioner to file a
reply, and the court must determine whether the petitioner has
made a prima facie showing of entitlement to relief. (See
10
§ 1172.6, subd. (c).) Where a petitioner makes the requisite
prima facie showing the petitioner falls within the provisions of
section 1172.6 and is entitled to relief, the court must issue an
order to show cause and hold an evidentiary hearing to determine
whether to vacate the murder, attempted murder, or
manslaughter conviction and resentence the petitioner on any
remaining counts. (§ 1172.6, subds. (c) & (d)(1).)
B. The Superior Court Erred in Denying Johnson’s Petition
Without Issuing an Order To Show Cause
Johnson contends the superior court erred in relying on the
police reports to deny his petition without issuing an order to
show cause and holding an evidentiary hearing. He also argues
the court improperly relied on Johnson’s admission that he
personally used a firearm in the commission of attempted murder
to show he was the actual shooter. The People contend the police
reports were part of the record of conviction and show Johnson
was the actual shooter and therefore ineligible for relief under
section 189, subdivision (e)(1)). Although we recognize it is
unlikely Johnson would be able to rebut a showing by the People
that he was the actual shooter in light of the eight individuals
who appear to have witnessed Johnson as the lone gunman
shooting at Bragg, we agree that Johnson made a prima facie
showing of eligibility for relief and is therefore entitled to an
evidentiary hearing at which the People will have the burden of
proof.
As discussed, where a defendant makes a prima facie
showing of eligibility for relief under section 1172.6, the court
must issue an order to show cause and hold an evidentiary
hearing. (§ 1172.6, subds. (c) & (d)(1).) Johnson averred in his
11
petition for resentencing that he pleaded no contest to attempted
murder in lieu of going to trial; the People could have proceeded
at trial under the felony murder rule or the natural and probable
consequences doctrine; and he could not now be convicted of
murder or attempted murder under the 2019 amendments to
sections 188 and 189. These statements under penalty of perjury
establish a prima facie case of eligibility for relief under
section 1172.6.
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under former section
1170.95, subdivision (c), “[l]ike the analogous prima facie inquiry
in habeas corpus proceedings, ‘“the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ [Citations.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, 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.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
However, “[i]n reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)
Rather, the court’s review at this stage is limited to “‘readily
ascertainable facts’” in the record, such as the jury instructions,
the record of the crimes committed, and jury findings on the
enhancements. (People v. Duchine (2021) 60 Cal.App.5th 798,
12
815; see People v. Harden (2022) 81 Cal.App.5th 45, 50
[considering jury instructions and verdicts to determine whether
the record of conviction conclusively established that defendant
was actual killer]; People v. Ervin (2021) 72 Cal.App.5th 90, 106
[considering as part of record of conviction the jury instructions,
closing arguments, and verdicts, which did not show defendant
was ineligible for relief based on jury’s true findings on felony-
murder special-circumstance allegation].) We independently
review whether Johnson has made a prima facie case of eligibility
for relief. (Harden, at p. 52; see People v. Flores (2022)
76 Cal.App.5th 974, 991 (Flores) [“it is now well-settled that the
prima facie determination is a question of law”].)3
The Courts of Appeal are divided as to whether a
preliminary hearing or grand jury transcript (like a police report)
may be considered as part of the record of conviction where a
petitioner admits the transcript provides a factual basis for the
3 The People contend Johnson forfeited his contention the
superior court erred in relying on the police reports because his
attorney failed to object to consideration of the police reports in
the superior court. Because we independently review the record
to determine whether Johnson as a matter of law made a prima
facie showing of eligibility for relief, we decline to find forfeiture.
(People v. Runyan (2012) 54 Cal.4th 849, 859, fn 3 [court “may
consider new arguments that present pure questions of law on
undisputed facts”]; In re S.B. (2004) 32 Cal.4th 1287, 1293
[“application of the forfeiture rule is not automatic”].) The People
argue that had Johnson objected to consideration of the police
reports in the superior court, the People could have identified
which of the eight police reports supported their position. But it
does not matter whether the People relied on one or eight police
reports—the eight reports were consistent but were not part of
the record of conviction and included inadmissible hearsay.
13
plea. (Compare Flores, supra, 76 Cal.App.5th at p. 991
[preliminary hearing transcript may not be relied on to establish
ineligibility for relief even with stipulation that transcript
provided factual basis for plea] and People v. Rivera (2021)
62 Cal.App.5th 217, 238 (Rivera) [stipulation to grand jury
transcript as factual basis for plea did not constitute admission
by defendant that he committed murder with malice] with People
v. Patton (2023) 89 Cal.App.5th 649, 657 (Patton), review granted
June 28, 2023, S279670 [superior court properly denied petition
at prima facie review stage because testimony at preliminary
hearing showed defendant was sole perpetrator of attempted
murder]4 and People v. Davenport (2021) 71 Cal.App.5th 476, 481
[rejecting the argument “the preliminary hearing transcript is
never part of the record of conviction” but finding superior court
erred in considering facts from the preliminary hearing
transcript because the defendant did not stipulate to the facts as
a factual basis for his plea]; People v. Nguyen (2020)
53 Cal.App.5th 1154, 1167 [concluding pre-Lewis that defendant
did not make prima facie showing of eligibility for relief at the
prima facie review stage because “the transcripts from the
preliminary and plea hearings demonstrate Nguyen was
convicted of second degree murder as a direct aider and
abettor”].)
We find the reasoning of the First District in Rivera and
the Fifth District in Flores persuasive. As the court in Rivera
4 The Supreme Court granted review in People v. Patton,
S279670, to decide whether “the trial court engage[d] in
impermissible judicial factfinding by relying on the preliminary
hearing transcript to deny defendant’s Penal Code section 1172.6
petition at the prima facie stage.”
14
observed, “Under section 1192.5, a trial court taking a plea must
make ‘an inquiry . . . of the defendant to satisfy itself . . . that
there is a factual basis for the plea.’ ‘The factual basis required
by section 1192.5 does not require more than establishing a
prima facie factual basis for the charges.’” (Rivera, supra,
62 Cal.App.5th at p. 235, quoting People v. Holmes (2004)
32 Cal.4th 432, 441; accord, Flores, supra, 76 Cal.App.5th at
p. 990.) Further, “‘[a] defendant is not required to personally
admit the truth of the factual basis of the plea, which may be
established by defense counsel’s stipulation to a particular
document. [Citation.] Thus, absent an indication that a
defendant admitted the truth of particular facts, the stipulation
to a factual basis for the plea does not ‘constitute[] a binding
admission for all purposes.’” (Rivera, at p. 235; accord, Flores, at
p. 990; see People v. Hiller (2023) 91 Cal.App.5th 335, 349 (Hiller)
[although defendant stipulated as part of plea that declarations
of probable cause established factual basis for plea, the
stipulation was not an admission of the truth of the specific
statements in the declarations to support a finding prior
convictions of out-of-state robberies were serious or violent
felonies in California].) Johnson’s admission through his
attorney that the police reports provided a factual basis for the
plea constituted an admission there was a sufficient factual basis
to convict him of attempted murder, but the stipulation was not
an admission that all the statements in the police reports
describing how the shooting occurred were true.
The People urge us to follow the reasoning of Division
Three of this district in Patton, supra, 89 Cal.App.5th at
page 657, review granted, in which the Court of Appeal affirmed
the denial of the defendant’s section 1172.6 petition at the prima
15
facie review stage based the preliminary hearing testimony
showing the defendant was the sole shooter. (Id. at p. 657.) The
court explained, “Police officers testified at the preliminary
hearing that they had watched the surveillance video and they
knew and recognized [the defendant] as the sole perpetrator, who
approached [the victim] as he stood at the motel clerk’s desk and
fired several rounds at him. Those officers were personally
involved in the investigation of the shooting of [the victim], and
they were subject to cross-examination at the preliminary
hearing.” (Ibid.)
Patton is distinguishable in that the court relied on the fact
the surveillance video and sworn testimony of the police officers
based on the video provided uncontroverted evidence the
defendant was the shooter, thereby requiring no judicial
factfinding. (Patton, supra, 89 Cal.App.5th at p. 658, review
granted.) The question before us not whether sworn preliminary
hearing testimony may be considered as part of the record of
conviction, but rather, whether the fact Johnson stipulated to a
factual basis for the plea was an admission that the specific
witness statements in the police reports were true. As discussed,
in stipulating to a factual basis, Johnson made no such
admission.
The People also rely on People v. Gallardo (2017) 4 Cal.5th
120, 136 (Gallardo) to support their contention the superior court
properly considered the witness statements in the police reports.
Gallardo does not assist them. The Supreme Court in Gallardo
held the trial court violated the defendant’s Sixth Amendment
right to a jury trial by finding the defendant’s prior conviction of
assault was a serious offense (because it was committed with a
deadly weapon) for purposes of increasing the sentence for the
16
current offense. (Id. at pp. 124-125.) The People point to the
language in Gallardo that the court’s role in considering whether
to impose an increased sentence is “limited to identifying those
facts that were established by virtue of the conviction itself—that
is, facts the jury was necessarily required to find to render a
guilty verdict, or that the defendant admitted as the factual basis
for a guilty plea.” (Id. at p. 136.) The Gallardo court observed
the trial court had relied on a transcript from the preliminary
hearing at which the victim testified the defendant used a knife
during the altercation, but “[n]othing in the record shows that
defendant adopted the preliminary hearing testimony as
supplying the factual basis for her guilty plea.” (Ibid.) The court
therefore remanded the matter to allow the trial court to
determine what facts the defendant admitted in entering her plea
under the standard set forth in Gallardo. (Id. at p. 139.)
The People contend that because Johnson’s attorney
stipulated that the police reports provided a factual basis for his
plea, under Gallardo, all the statements in the reports may be
considered part of the record of conviction. We do not read
Gallardo so broadly. As the Supreme Court explained in People
v. Holmes, supra, 32 Cal.4th at page 441, the factual basis for a
plea required by section 1192.5 “does not require more than
establishing a prima facie factual basis for the charges.” And it
was Johnson’s attorney, not Johnson, who stipulated the police
reports provided a sufficient factual basis. As the Hiller, Flores,
and Rivera courts clarified, the attorney’s stipulation to a factual
basis does not constitute an admission of the truth of specific
facts in the applicable document (here, the police reports). (See
Hiller, supra, 91 Cal.App.5th at p. 349; Flores, supra,
17
76 Cal.App.5th at p. 990; Rivera, supra, 62 Cal.App.5th at
p. 235.)
The Hiller court rejected a similar argument that Gallardo
authorized the trial court to consider all the facts set forth in a
declaration of probable cause relied on to establish a factual basis
for the defendant’s plea, to show the defendant’s prior conviction
was a serious or violent felony. (Hiller, supra, 91 Cal.App.5th at
p. 350.) The court explained, “Even if defendant had admitted to
the factual allegations in the probable cause declarations, those
allegations do not conclusively establish—although they strongly
suggest—his intent to keep the property. Defendant neither
admitted such an intent, nor did a jury find it beyond a
reasonable doubt, and we conclude that under Gallardo, the
sentencing court may not infer such intent in order to impose a
sentencing enhancement, no matter how strongly the facts would
support such an inference.” (Ibid.) Here, the fact Johnson was
involved in the shooting of Bragg—whether as the actual shooter
or an accomplice—provided a sufficient factual basis for the trial
court to accept the plea to attempted murder under
section 1172.5, but the attorney’s stipulation does not mean
Johnson was admitting the witnesses’ description of how the
shooting occurred.
Moreover, a police report containing witness statements,
such as the reports here, contains inadmissible hearsay. Under
section 1172.6, subsection (d)(3), at an evidentiary hearing on a
resentencing petition, “[t]he admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing
or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.”
18
Although section 1172.6, subdivision (d)(3), only applies at the
evidentiary hearing, it would be incongruous to allow the
superior court to rely on hearsay statements at the prima facie
review stage to deny a petitioner relief but bar the use of the
same evidence at the evidentiary hearing. (See Flores, supra,
76 Cal.App.5th at p. 988, fn. 9 [“[W]e fail to see how evidence that
cannot establish a petitioner’s ultimate eligibility for
resentencing could establish a petitioner’s ineligibility for
resentencing at the prima facie stage.”].) As the Supreme Court
observed in Lewis, in holding judicial factfinding is improper at
the prima facie review stage, the “‘prima facie bar was
intentionally and correctly set very low.’” (Lewis, supra,
11 Cal.5th at pp. 971-972.)
The police reports relied upon by the superior court in this
case involve two levels of hearsay. The police reports were
prepared by Sheriff’s deputies and detectives outside the
courtroom and were offered for the truth of the statements in the
reports. (Evid. Code, § 1200, subd. (a) [“‘Hearsay evidence’ is
evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the
truth of the matter stated.”]; People v. Sanchez (2016) 63 Cal.4th
665, 674 [“Documents like letters, reports, and memoranda are
often hearsay because they are prepared by a person outside the
courtroom and are usually offered to prove the truth of the
information they contain.”].) And significantly, the reports
contained out-of-court statements by Bragg and the other
witnesses recounting how the shooting took place. “Multiple
hearsay may not be admitted unless there is an exception for
each level.” (Sanchez, at p. 675; accord, Walker v. Superior Court
(2021) 12 Cal.5th 177, 192 [“Each level of out-of-court statement,
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from the evaluation reports to the probation and police reports to
the victim statements, ordinarily must fall under a hearsay
exception to be admitted into evidence.”].)
The police reports could fall within the official records
exception to the hearsay rule upon a showing the Sheriff’s
deputies and detectives prepared the reports within the scope of
their duty as public employees, the reports were made on or near
the date of the shooting, and “[t]he sources of information and
method and time of preparation were such as to indicate [their]
trustworthiness.” (See Evid. Code, § 1280, subd. (c); Lake v. Reed
(1997) 16 Cal.4th 448, 461; People v. Hall (2019) 39 Cal.App.5th
831, 843 [“‘Assuming satisfaction of the exception’s other
requirements, “[t]he trustworthiness requirement . . . is
established by a showing that the written [arrest] report is based
upon the observations of public employees who have a duty [as
the arresting deputies had] to observe the facts and report and
record them correctly.”’”].) However, no hearsay exception
applies to the out-of-court statements made by the eight
witnesses in the police reports, nor do the People point to an
applicable exception. Therefore, the statements are inadmissible.
The superior court also erred in relying on Johnson’s
admission to the allegation of “personally using a firearm” to
deny his resentencing petition. As the Supreme Court explained
in People v. Jones (2003) 30 Cal.4th 1084, 1119 to 1120, in
rejecting the argument the defendant’s admission of personal use
of a firearm necessarily meant he was the actual killer of a
restaurant manager where he and a confederate robbed the
restaurant, “The finding of personal use, however, would not in
itself prove defendant was the actual killer. If two robbers
display guns to intimidate robbery victims and one shoots and
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kills a victim, both robbers could be found to have personally
used a gun in the robbery and the felony murder, even though
only one is the actual killer.” Similarly, it is possible that
Johnson personally used a firearm in the commission of
attempted murder by brandishing the firearm as an accomplice to
an assault by the perpetrator, who shot the victim as a natural
and probable consequence of the assault.
DISPOSITION
The order denying Johnson’s petition for resentencing is
reversed. On remand, the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1172.6, subdivision (d).
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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