People v. Johnson CA3

Filed 3/25/24 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C097515

Plaintiff and Respondent, (Super. Ct. No. CR199258431) v.

KYLE MARQUES JOHNSON,

Defendant and Appellant.

Defendant Kyle Marques Johnson appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.61 at the prima facie stage. We shall affirm the order.

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6 throughout this opinion.

1

BACKGROUND Defendant’s accomplice testified at trial that defendant shot and killed the victim for failing to pay for drugs he gave her to sell. The jury found defendant guilty of first degree murder but found not true the allegation that defendant personally used a firearm. For first degree murder, the jury was given the standard instruction on deliberate and premeditated murder under CALJIC No. 8.20. This instruction stated: “All murder which is perpetrated by any kind of willful[], deliberate and premeditated killing with express malice aforethought is murder of the first degree.” The jury also was given the instruction on aiding and abetting (CALJIC No. 3.01): “A person aids and abets the commission of a crime when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.” Defendant appealed; we modified defendant’s custody credits and affirmed the judgment as modified. (People v. Johnson (Feb. 16, 1996, C018357) [nonpub. opn.].) In September 2022, defendant filed a petition for resentencing under section 1172.6. The petition alleged he could not now be convicted of murder because he had been convicted under a theory of felony murder or under the natural and probable consequences doctrine. The trial court held a hearing on November 18, 2022, and denied this petition “based on the record before the [c]ourt.” Defendant appeals. DISCUSSION Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, prohibited the use of the natural and probable consequences doctrine and felony-murder rule so that malice can no longer “be imputed to a person based solely on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2, subd. (a)(3).) Senate Bill No. 1437 (2017-2018 Reg. Sess.) also added former section 1170.95 (now section