People v. Partner CA2/5

Filed 9/14/21 P. v. Partner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, B309748
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. A626198)
v.
ORDER MODIFYING
JOHNNY PARTNER, OPINION
[No change in judgment]
Defendant and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on September 14,
2021, is modified as follows:
On the caption page, delete case number B309749 and
replace it with B309748.
There is no change in judgment.
___________________________________________________________
RUBIN, P. J. MOOR, J. KIM, J.
Filed 9/14/21 P. v. Partner CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, B309749
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A626198)
v.
JOHNNY PARTNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
__________________________
In 1984, a jury found defendant Johnny Partner guilty of
first-degree murder (Pen. Code, § 187, subd. (a))1 and found true
the allegation that defendant had personally used a firearm in
the commission of the murder (§ 12022.5). The trial court
sentenced him to life without parole.
On April 6, 2020, defendant filed a petition to vacate his
murder conviction and for resentencing pursuant to section
1170.95. Defendant checked a box on the form petition indicating
he had been convicted of first or second degree murder at trial
under a felony murder rule or the natural and probable
consequences doctrine. The District Attorney filed a response
arguing that defendant was ineligible for relief under section
1170.95 because he was the actual killer. The response attached
the reporter’s transcript of defendant’s sentencing hearing
showing the jury found true that defendant had personally used a
firearm in committing the murder. Defendant, through counsel,
filed his reply arguing, among other things, that the Supreme
Court was currently reviewing whether trial courts may consider
the record of conviction in determining whether a defendant has
made a prima facie showing under section 1170.95.2
1 All statutory references are to the Penal Code.
2 The Supreme Court has since resolved this issue holding
that the trial court may review the record of conviction in
assessing whether a petitioner has made a prima facie case for
2
On December 2, 2020, the trial court held a hearing on
defendant's petition and, following argument, denied it, stating:
“He was the only one charged with murder. He was found guilty
of first degree murder, and the allegation was found true that he
personally used a firearm. . . . No other individuals being
charged, it appears that the petitioner, Mr. Partner, was in fact
the actual shooter in this case . . . .”
Defendant timely appealed, and we appointed counsel to
represent him. Counsel filed an opening brief in accordance with
People v. Wende (1979) 25 Cal.3d 436 requesting that we
independently review the entire record to determine if there are
any arguable issues. Defendant filed a supplemental brief
challenging his underlying conviction on the grounds that law
enforcement suppressed evidence, witnesses perjured themselves,
the prosecutor committed misconduct, and defendant’s counsel
rendered ineffective assistance. Defendant did not address
section 1170.95 in his supplemental brief.
We have reviewed the record and are satisfied that
defendant's appointed appellate counsel has fully complied with
her responsibilities and no arguable issues exist. (People v. Cole
(2020) 52 Cal.App.5th 1023, 1039, 1040, review granted Oct. 14,
2020, S264278; People v. Serrano (2012) 211 Cal.App.4th 496,
relief under section 1170.95. (People v. Lewis (2021) 11 Cal.5th
952, 971.)
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503; People v. Wende, supra, 25 Cal.3d at p. 441.) Any claimed
error at defendant’s trial is not before us in this appeal from the
trial court’s denial of his resentencing petition. As we have
observed, defendant raises no argument as to the ruling on his
section 1170.95 petition. Because the record demonstrates
defendant was the actual killer, he cannot demonstrate eligibility
for relief under section 1170.95 as a matter of law. (People v.
Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22,
2020, S262835.)
DISPOSITION
The order denying defendant’s section 1170.95 petition for
resentencing is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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