People v. Johnson CA5

Filed 1/9/23 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F083551 Plaintiff and Respondent, (Super. Ct. No. BF102899A) v.

LONNY LORENZO JOHNSON, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Christina H. Simpson and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and De Santos, J.

Appellant Lonnie Lorenzo Johnson appeals the denial of his petition under Penal Code1 former section 1170.952 for resentencing on his murder conviction. The denial was based, in part, on a finding that appellant was ineligible for relief because his conviction includes a special circumstance allegation that the murder was committed during the commission of a robbery. (See § 190.2, subd. (a)(17)(A).) Our Supreme Court has since clarified that the mere fact of such a conviction is insufficient to deny appellant’s petition at the prima facie eligibility stage. (See People v. Strong (2022) 13 Cal.5th 698 (Strong).) Accordingly, for the reasons set forth below, we agree with appellant that on the current record an evidentiary hearing is required and therefore remand for the trial court to conduct that hearing. FACTUAL AND PROCEDURAL BACKGROUND In 2005, appellant was convicted of murder (§ 187, subd. (a)) with the additional allegations that the murder was committed while appellant was engaged in a robbery (§ 190.2, subd. (a)(17)(A)) and that appellant personally used a deadly weapon in the commission of the murder (§ 12022, subd. (b)(1)). By way of background 3 and as detailed in our prior opinion, appellant was charged with the stabbing and asphyxiation death of Yolonda Espinoza, an individual who had

1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at that time, although prior changes had been implemented effective January 1, 2022. There is no dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the statute as section 1172.6. 3 We have summarized portions of the statement of facts from this court’s prior opinion affirming appellant’s conviction (People v. Johnson (May 14, 2007, F049490) [nonpub. opn.]). With respect to the facts provided, we include these facts only for background concerning the nature of appellant’s conviction. (See People v. Clements (2022) 75 Cal.App.5th 276, 292, quoting § 1172.6, subd. (d)(3) [“effective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to ‘consider the procedural history of the case recited’ ”]; see also People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 [“Senate Bill