Filed 7/21/21 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075238
v. (Super.Ct.No. SCR44436)
JESSIE JOHNSON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristen Chenelia and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant Jessie Johnson, Jr., appeals the denial of a petition for
resentencing under Penal Code1 section 1170.95, following an evidentiary hearing on an
order to show cause. Because substantial evidence supports the trial court’s finding that
he was ineligible for section 1170.95 relief, we affirm.
FACTUAL BACKGROUND
The factual background comes directly from the unpublished opinion we issued in
1988, affirming defendant’s convictions in People v. Johnson (Nov. 30, 1988, E004988).
“Defendant worked for his father in a truck tire business. Victim Virginia
Brackney made arrangements to have eight truck tires installed on her diesel truck for the
sum of $1,900. Defendant and codefendant Willie Harris, were dispatched to obtain the
tires, transport and mount them on the truck at the Brackney residence. Upon the pair’s
arrival, Mrs. Brackney went to the bank to obtain the $1,900 cash.
“Later that afternoon, the victim's daughter arrived at the family home to discover
her mother missing. Both defendants were at the residence and told the daughter her
mother had not returned from the bank. Noting both family vehicles at the residence, the
daughter became concerned and began contacting family and friends in an attempt to
locate her mother.
“After defendants left, the victim’s ex-husband searched a truck trailer on the
property and located the victim’s body in a wooden box. The victim had been beaten to
1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 death with one or more hard metal objects. The following day, sheriff’s investigators
found the victim’s empty purse in a dumpster of a nearby 7-Eleven store. Both
defendants were interrogated. Each of them ultimately admitted being present at the
slaying, each saying the other did the actual killing. The motive according to each
defendant was robbery. Johnson also admitted he assisted the codefendant in cleaning up
the crime scene but denied participation in removing or hiding the body. Tire irons
which were taken from [the] defendants by investigators were examined by the
pathologist and determined to be capable of causing injuries consistent with the wounds
suffered by the deceased. In a search of [the] codefendant’s residence, investigators
recovered bloodstained pants. Upon chemical analysis, the blood was consistent with
that of the victim.”
PROCEDURAL BACKGROUND
On or about December 17, 1986, defendant entered a plea agreement and pled
guilty to second degree murder (§ 187, count 1) and robbery (§ 211, count 2). In
exchange, the People agreed to dismiss a deadly weapon enhancement (former § 12022,
subd. (b)) and run the sentence on count 2 concurrent. On December 4, 1987, a trial
court sentenced him to 15 years to life on count 1 and a concurrent five years on count 2,
pursuant to the plea agreement.
On January 25, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95, claiming entitlement to relief since he pled guilty or no contest to first or
second degree murder because he believed he could have been convicted of first or
second degree murder pursuant to the felony-murder rule or the natural and probable
3 consequences doctrine, and he could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189, effective January 1, 2019.
Defendant requested that counsel be appointed on his behalf. In its response to the
petition, the People filed a motion to strike the petition, arguing that Senate Bill No. 1437
was unconstitutional. The People later filed a letter contending that defendant failed to
set forth a prima facie case for relief. Defendant filed a reply brief and requested the
court to issue an order to show cause. Following a hearing on the petition, the trial court
found the petition established a prima facie case, issued an order to show cause, and
ordered a hearing to take place in accordance with subdivision (d) of section 1170.95.
The court held the evidentiary hearing, beginning on January 21, 2020. The
People argued that defendant was a major participant in the underlying felony and acted
with reckless disregard for human life. The prosecutor called codefendant Harris to
testify. Harris said he served 30 years in prison as a result of the incident in this case and
was paroled on June 3, 2016. He testified that on the day of the murder he was working
with defendant. He heard the victim tell defendant that they were to change eight tires
out, and she was leaving for the bank and would come back with the money to pay them.
Harris testified that, when the victim returned to the residence with the money, defendant
struck her with a tire iron, at least a couple times. Then Harris picked up a tire iron and
also struck her with it. He said she fell to the ground, but they did not know if she was
dead. They put her in a brown box to hide her body and then put the box in the back of
her semi-truck. They went back to wipe up the blood and sprayed water to clean it up.
After they cleaned up the area, they went to 7-Eleven and bought some beer. Then they
4 returned to the victim’s house, and defendant had a conversation with the victim’s
daughter. He told her that they were supposed to fix the tires and that the victim left and
never came back. Harris further testified that, after they came back from 7-Eleven, the
only thing they said to each other was, “If you get caught, don’t mention my name. If I
get caught, don’t mention yours.”
On cross-examination, defense counsel confirmed with Harris that he had had six
parole hearings and asked if he told the parole board at his last hearing in 2016 that he did
not hit the victim with a tire iron. Defense counsel said Harris changed his statement at
every hearing, which Harris denied. Defense counsel had Harris read the transcript from
the last parole hearing in order to show him he did not admit to the board that he picked
up a tire iron and hit the victim. Harris said the parole board never asked him if he
picked up a tire iron. Defense counsel kept trying to get Harris to say that his statement
that he hit the victim was completely different than his previous statements, and that he
had been lying about what happened for 30 years.
The defense introduced into evidence the transcripts of several of Harris’s parole
review hearings. Throughout those hearings, Harris said he participated in the crime, but
asserted that defendant hit the victim with the tire iron. After defendant hit her, Harris
asked what he was doing, and defendant said he needed the money. Harris said he helped
by putting the victim’s body in the box and putting the box in the trailer.
The People moved into evidence the transcript from the preliminary hearing. At
that hearing, the pathologist who performed the autopsy on the victim’s body testified
that the victim received a minimum of 10 blows and died from multiple blunt injuries.
5 He could not say which of the injuries caused her death, but the potential fatal blows
were to her head and abdomen. He further testified that these two injuries had to have
been inflicted with a large amount of force, similar to that of a grown man swinging a tire
iron like a baseball bat, with a full-strength swing. In addition, a bank teller testified that
the victim cashed a check for approximately $2,000 and told her the money was for some
tires. Furthermore, an employee of the 7-Eleven testified that he found the victim’s purse
behind one of the store’s dumpsters, and there was no money in it.
After reviewing the evidence, the court denied defendant’s section 1170.95
petition. In doing so, it issued a lengthy oral and written statement. The court began by
acknowledging that Harris’s statements about this murder had historically lacked
credibility since they “appeared less than candid regarding [his] own involvement.” It
noted that his testimony at the petition hearing significantly modified and added to the
story, with his admission that he personally participated in the beating that killed the
victim. The court opined that there was no reason for Harris to say defendant physically
attacked the victim unless it was true and that Harris persuasively claimed he had no
motive to falsely accuse defendant. The court further stated that it shared the public
defender’s concerns regarding Harris’s credibility and conceded that his testimony,
standing alone, might be insufficient to support its denial; however, it said that
defendant’s own actions “should not be overlooked and cannot be ignored.” The court
then stated:
“Harris’ uncontradicted testimony that both actually beat the victim is suggestive
that the incident did not just spontaneously erupt. It is undisputed the Defendant was
6 present when the victim was beaten. . . . Defendant did not stop the beating after it
started, and Defendant did not render aid to the victim. Defendant could have summoned
medical aid but never did. From the evidence presented, Defendant was in a position to
at least try and prevent the victim’s death. Defendant’s choice to permit the victim to be
stuffed in the wood box (she may still have been alive) as opposed to calling the police
and summoning medical help is powerful circumstantial evidence the Defendant was not
just a bystander, and it corroborates Harris’ testimony Defendant was an actual
participant in the beating that killed the victim.”
The court further commented that defendant was instrumental in cleaning up the
crime scene, which it described as “a deceptive activity designed to avoid detection.”
The court also noted that defendant and Harris went to 7-Eleven and disposed of the
victim’s purse, which was another effort to avoid detection. Furthermore, defendant lied
to the victim’s daughter when he said they were waiting for the victim to return with the
payment. The court observed that defendant had multiple opportunities to alert others
that the victim had been beaten, including her daughter, her daughter’s friend who came
to see her daughter, the people at 7-Eleven, and his father. However, instead of telling
anyone what happened, defendant fabricated a story to avoid detection of the murder, and
he and Harris reached an agreement that if either was caught, neither was to mention the
other.
7 The court concluded by finding “by proof beyond a reasonable doubt that
Defendant Jesse Johnson, Jr.[2] is ineligible for resentencing.” It then denied the petition.
DISCUSSION
The Evidence Was Sufficient to Support the Court’s Finding That Defendant Was
Ineligible for Relief
Defendant contends the prosecution failed to prove beyond a reasonable doubt that
he was ineligible for resentencing under section 1170.95. He states that the issue before
this court is “whether substantial evidence supports the trial court’s finding that Willie
Harris . . . was credible in testifying that appellant precipitated and participated in the
killing of [the victim].”
He specifically claims that there was no credible evidence as to who committed
the killing and how it was done, since the only evidence came from previous statements
made by Harris and Harris’s testimony at the hearing on the petition. Defendant asserts
that “Harris was and is a self-serving liar . . . [and] [t]here is absolutely no reason to give
any credence to anything Harris said.” The People argue that substantial evidence
demonstrates that defendant was a major participant who acted with reckless disregard
for human life.3 The People further assert that defendant is essentially asking us to
reweigh Harris’s credibility, which we cannot do. We agree with the People.
2 Defendant’s first name is spelled alternately as “Jesse” and “Jessie” in the record.
3 In the alternative, the People contend that there was substantial evidence that defendant was the actual killer. However, since the court did not make that finding, we decline to reach that issue. 8 A. Standard of Review
On appeal from a denial of relief following an evidentiary hearing under section
1170.95, subdivision (d), we review the trial court’s factual findings for substantial
evidence. (People v. Lopez (2020) 56 Cal.App.5th 936, 953-954, review granted Feb. 10,
2021, S265974.) Under that familiar standard, “ ‘we review the entire record in the light
most favorable to the judgment to determine whether it contains substantial evidence—
that is, evidence that is reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Morales (2020) 10 Cal.5th 76, 88.) “ ‘We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.
Whisenhunt (2008) 44 Cal.4th 174, 200.) “ ‘We do not reweigh evidence or reevaluate a
witness’s credibility.’ ” (Ibid.)
B. Senate Bill No. 1437
“Senate Bill 1437 ‘amend[ed] 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 reckless indifference to
human life.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
“To further that purpose, Senate Bill 1437 added three separate provisions to the
Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189,
subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the following is
9 proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder in the first
degree. [¶] (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.’” (Gentile, supra, 10 Cal.5th at p. 842.)
“Second, to amend the natural and probable consequences doctrine, Senate Bill
1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony-
murder liability] as stated in subdivision (e) of Section 189, 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.’ ” (Gentile, supra,
10 Cal.5th at pp. 842-843.)
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those
convicted of felony murder or murder under the natural and probable consequences
doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra, 10
Cal.5th at p. 843.) “Section 1170.95 lays out a process for a person convicted of felony
murder or murder under a natural and probable consequences theory to seek vacatur of
his or her conviction and resentencing. First, the person must file a petition with the trial
court that sentenced the petitioner declaring, among other things, that the petitioner
‘could not be convicted of first or second degree murder because of changes to Section
188 or 189.’ (§ 1170.95, subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) Then, the trial
court must ‘review the petition and determine if the petitioner has made a prima facie
10 showing that the petitioner falls within the provisions of th[e] section.’ (§ 1170.95,
subd. (c).) If so, the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder conviction and to resentence the petitioner on
any remaining counts. (§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution
must ‘prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’
(§ 1170.95, subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective burdens.’ ”
(Gentile, at p. 853.)
C. The Evidence Was Sufficient to Support the Court’s Finding That Defendant
Was Ineligible for Relief
In People v. Banks (2015) 61 Cal.4th 788 (Banks), the Supreme Court examined
the conduct for which an accomplice who lacks the intent to kill may be liable under
principles of aiding and abetting felony murder. (Id. at pp. 802-803.) The Court set forth
various considerations to determine the ultimate question of whether the defendant’s
conduct amounted to major participation “ ‘in criminal activities known to carry a grave
risk of death.’ ” (Id. at p. 803.) Those circumstances, posed as questions, include:
“What role did the defendant have in planning the criminal enterprise that led to one or
more deaths? What role did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to facilitate or prevent the
11 actual murder, and did his or her own actions or inaction play a particular role in the
death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted.)
The Court again addressed aiding and abetting principles under felony murder in
People v. Clark (2016) 63 Cal.4th 522 to consider circumstances in which an aider and
abettor harbors the requisite mental state (reckless indifference to human life) for felony
murder liability. (Id. at p. 615.) Those circumstances often overlap with those set forth
in Banks for major participation, and include the following: the number of firearms used
during the predicate crime (here, robbery), the defendant’s knowledge they would be
used, and whether the defendant used a firearm; the defendant’s presence during the
robbery and opportunity to restrain the crime or aid the victim; the duration of the
robbery; the defendant’s knowledge that one of his cohorts would likely kill; and the
defendant’s efforts, if any, to minimize the possibility of violence during the robbery.
(Id. at pp. 615, 618-623.) “ ‘[N]o one of these considerations is necessary, nor is any one
of them necessarily sufficient.’ ” (Id. at p. 618.)
Here, substantial evidence supports the trial court’s finding that defendant was a
major participant in the robbery and acted with reckless indifference to human life. We
note the court did not expressly find that defendant was a major participant and acted
with reckless indifference, but instead stated that the proof showed beyond a reasonable
doubt that he was ineligible for resentencing. However, in view of the court’s order, and
as the parties acknowledge, it is clear the court found he was a major participant. The
court pointed out that Harris’s testimony was uncontradicted that both he and defendant
beat the victim. It noted that defendant was present when the victim was beaten, she was
12 hit with tire irons, defendant did not stop the beating after it started, and he did not render
aid to the victim. Furthermore, the court found he could have summoned medical help,
but never did. It found that defendant’s choice to permit the victim to be stuffed in the
wood box, as opposed to calling the police and summoning medical help, was “powerful
circumstantial evidence” that he was not just a bystander but an actual participant. The
court noted that the weapons of choice were tire irons, which were highly lethal when
“swung like a baseball bat” by grown men. Moreover, defendant cleaned up the crime
scene, which indicated he was trying to avoid detection of the crime, and he later lied to
the victim’s daughter when he told her they were still waiting for the victim to return with
the money. In addition, defendant showed a reckless indifference to life in that he had
multiple opportunities to tell others that the victim had been beaten, including the
victim’s daughter and the people at 7-Eleven. Instead of telling anyone what happened,
he covered up the crime and deceived others to avoid detection. Furthermore, he and
Harris agreed not to tell on the other person if they got caught.
Defendant does not contend that Harris’s testimony did not demonstrate that he
was a major participant and acted with reckless indifference to human life. Instead, he
argues the evidence was insufficient to support the trial court’s ruling since Harris’s
testimony was not credible. Defendant points to the magistrate’s finding at the
preliminary hearing that there was “barely sufficient” evidence to hold him to answer.
He cites multiple instances in which Harris’s testimony at the petition hearing was
inconsistent with his prior statements at past parole board hearings. He also points out
that the parole board commissioners opined Harris lacked credibility and lied about his
13 part in the incident. Defendant then directs this court to “read the entirety of those parole
suitability hearings in order to get a true understanding of why nothing Harris has to say
about this offense should be given any credit.”
Defendant is essentially asking us to evaluate Harris’s credibility, discredit him,
and thereby find the evidence insufficient to support the court’s denial of his petition.
However, we cannot do so. “ ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People v. Zamudio
(2008) 43 Cal.4th 327, 357 (Zamudio).)
Moreover, the court here was well aware of Harris’s past statements that may have
been inconsistent with his testimony at the hearing. It began its denial order by
acknowledging that his statements had historically lacked credibility since they “appeared
less than candid regarding [his] own involvement.” The court acknowledged that his
testimony at the hearing added the admission that he personally participated in the
beating that killed the victim. However, it opined that there was no reason for Harris to
say defendant physically attacked the victim unless it was true and that Harris
persuasively claimed he had no motive to falsely accuse defendant. In other words, the
court found his testimony credible having carefully considered all of the evidence and
14 observing Harris’s demeanor at the hearing.4 The trial court thoughtfully performed its
duty to determine the credibility of the witness. Defendant contends that the trial court
was incorrect in finding there was no reason for Harris to lie in his testimony at the
hearing and that “nothing Harris has to say about this offense should be given any credit.”
At the same time, he argues the trial court did not actually credit Harris’s testimony;
otherwise, it would have concluded that defendant was the actual killer, and there would
have been no reason to find him guilty as a major participant. We respectfully disagree
with this assertion. It is clear that the trial court did credit Harris’s testimony having
determined that there was no reason for Harris to say defendant physically attacked the
victim unless it was true and that Harris persuasively claimed he had no motive to falsely
accuse defendant. It was the exclusive province of the trial judge to determine Harris’s
credibility “and the truth or falsity of the facts upon which a determination depends,” and
“[w]e resolve neither credibility issues nor evidentiary conflicts.” (Zamudio, supra, 43
Cal.4th at p. 357.)
Viewing the evidence in the light most favorable to the judgment, as we must, we
conclude there was sufficient evidence to support the court’s conclusion that defendant
was ineligible for resentencing under section 1170.95.
4 We note that “[i]t is well settled that ‘unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 281.) Nothing in Harris’s testimony about what occurred appears to be physically impossible or inherently improbable. 15 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
MILLER Acting P. J.
SLOUGH J.