Filed 3/28/24 P. v. Johnson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH RAY JOHNSON,

Defendant and Appellant.

 B317590

 (Los Angeles County

 Super. Ct. No. NA091413)

APPEAL from an order of the Superior Court of Los 

Angeles County, James D. Otto, Judge. Affirmed.

James M. Crawford, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and David F. Glassman, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *

Kenneth Ray Johnson (defendant) was convicted of murder 

in 2014 when he and two others orchestrated a sham purchase of 

medical marijuana so they could rob the seller at gunpoint; they 

shot the seller and stole his drugs. In 2021, the trial court denied 

defendant’s motion to vacate his conviction under Penal Code 

section 1172.6 (former section 1170.95)1 after an evidentiary 

hearing at which the court found, beyond a reasonable doubt, 

that defendant was a major participant in the robbery who had 

acted with reckless indifference to human life. Substantial 

evidence supports these findings, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In early 2011, Philip Williamson (Williamson) was in the 

business of importing higher grade marijuana called “sour diesel”

from northern California and reselling it to marijuana 

dispensaries in West Los Angeles. He ran the business out of his 

Westside apartment, and kept a gun. Just before March 24, 

2011, Williamson had stowed in his apartment approximately 11 

1 Effective June 30, 2022, section 1170.95 was renumbered 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 

For simplicity’s sake, we will refer to the section by its new 

numbering only.

All further statutory references are to the Penal Code 

unless otherwise indicated.
3

pounds of sour diesel marijuana and somewhere between 

$100,000 and $375,000 or “even more than that” in cash.

Marcel Mackabee (Marcel)2 knew Williamson and would 

sometimes smoke marijuana with him. Marcel decided to rob 

Williamson. Marcel enlisted the aid of Charles Mackbee

(Mackbee), his cousin; Mackbee recruited defendant whom he 

referred to as his “right-hand man” because defendant was a “big, 

aggressive” guy. Mackbee later said they had agreed to “set 

[Williamson] up and [defendant] would be the shooter.”

Defendant spent the night before the robbery getting 

himself “groomed up.” He shaved his whole body; ironed his 

clothes; told his girlfriend he was preparing for a “big job 

interview”; and if everything went well, they would be financially 

“straight.”

The robbery took place on March 24, 2011. Around noon 

that day, Marcel drove his 4-Runner to West Los Angeles: A 

video camera at a West Los Angeles 7-Eleven recorded Marcel 

buying Verizon calling cards at 12:27 p.m., and the receipt for 

that purchase was found in Williamson’s apartment. Marcel’s 

cell phone also “pinged” off of a cell tower near that 7-Eleven at 

the same time.

Later that evening, Marcel drove Williamson to the 

residential garage in Long Beach where defendant and his 

girlfriend lived at the time. Defendant and Mackbee met Marcel 

and Williamson inside the garage. Defendant posed as a 

businessman; he wore a suit and even brought a briefcase. The 

meeting in the garage ended when either defendant or Mackbee 

2 We use his first name to avoid confusion, given the 

similarity of his last name to his cousin’s. We mean no 

disrespect. 
4

shot Williamson once in the head. It is unclear which of the two 

pulled the trigger. Defendant told his girlfriend and others that 

he had shot Williamson and was upset that Mackbee was taking 

credit for the shooting, while Mackbee told others he was the 

shooter.

Defendant, Mackbee and Marcel put Williamson in the 

back of the 4-Runner and dumped him in an alley in just his 

underwear, socks and a T-shirt. Williamson was still alive and 

was gasping for air when paramedics found him. Williamson 

died a few days later from the single gunshot wound to the head.

After dumping Williamson, defendant changed clothes and 

met up with his girlfriend. He told her that he had “messed up,”

that he “fucked up” and that “shit didn’t go right as planned.” As 

they spoke, defendant placed bags of clothing he had sliced up 

with scissors into different dumpsters. That same night, 

defendant visited another friend and looked as if he were about to 

cry. He showed the friend a revolver wrapped in a towel, which 

he then used to wipe down the gun. When police later searched 

Williamson’s apartment, there were no signs of forced entry and 

the cash and marijuana were gone. Marcel told a friend he had 

$100,000 in his car, and police later seized $38,700 in cash from a 

car driven by Marcel's wife; neither defendant nor Mackbee knew 

anything about the additional cash and marijuana in 

Williamson’s apartment.

In the days after the robbery, defendant asked his 

girlfriend to burn some of his clothes in a fire pit, and then told 

her she was an accessory to murder for doing so. Mackbee also 

burned a jumpsuit in the fire. The garage floor had a big stain 

that looked like “red paint,” and the futon in the garage had blood 

spots. Defendant and Mackbee repeatedly scrubbed the garage 
5

floor with chemicals, put bleach on rugs from the garage floor,

and disposed of the futon. After the robbery, both defendant and 

Mackbee possessed sour diesel marijuana, including a big bag of 

it that they stored in the garage. Defendant started driving a 

black “benz,” and Mackbee told a friend he was “sitting on about 

[$]20,000.”

II. Prosecution, Conviction, and Appeal

In 2012, the People charged defendant and Mackbee with 

first degree murder (§ 187, subd. (a)).3 The People also alleged 

the special circumstance that the murder had been committed 

the course of a robbery (§ 190.2, subd. (a)(17)) and alleged that a 

principal was armed with a firearm (§ 12022, subd. (a)(1)). The 

People further alleged that defendant had served one prior prison 

term (§ 667.5, subd. (b)) and that Mackbee had served four.

Following trial, the jury convicted defendant and Mackbee 

of first degree murder, and found the special circumstance and 

firearm allegations to be true. The court struck the prior prison 

term enhancements. 

Due to the special circumstance finding, the trial court 

sentenced defendant to life without the possibility of parole on 

the murder count; to that, the court added an additional year for 

the firearm allegation. 

On appeal in People v. Johnson et al. (Mar. 24, 2016, 

B256273), in a nonpublished opinion, this court concluded the

trial court’s special circumstances jury instruction omitted an 

element, concluded that omission was not harmless beyond a 

reasonable doubt, and vacated the special circumstance finding 

3 Marcel was charged and tried separately. His conviction 

and sentence were affirmed on appeal. (See People v. Mackabee, 

June 20, 2014, B250143 [nonpub. opn.])
6

and the life without possibility of parole sentence based on that 

finding. We also concluded that the evidence at trial was 

sufficient to support a special circumstance finding, such that the 

People could retry defendant on the special circumstance. We 

remanded for the People to elect whether to retry the special 

circumstance or to have the trial court resentence without the 

special circumstance finding.

On remand, the People elected not to retry the special 

circumstance allegation. Consequently, the trial court 

resentenced defendant to 26 years to life, comprised of 25 years to 

life for the murder plus one additional year for the firearm 

enhancement.

III. Petition to Vacate Under Section 1172.6

In January 2019, defendant filed a petition for resentencing 

under section 1172.6. After appointing counsel to represent 

defendant, and after receiving a response from the People, the 

trial court in March 2021 issued an order to show cause and set 

the matter for an evidentiary hearing. In April 2021, defendant 

filed a further brief in support of his petition.

On November 3, 2021, the trial court held an evidentiary 

hearing. At that hearing, the People introduced the transcripts 

from the original trial. Defendant introduced no new evidence, 

and did not testify.

On November 30, 2021, the trial court issued a three-page 

order denying defendant’s petition. The court stated that 

although “there was substantial evidence that [defendant] was 

the actual shooter,” “it ma[de] no difference” because the court 

independently found beyond a reasonable doubt that defendant

was a “major participant who acted with reckless indifference to 

human life.”
7

IV. Appeal

Defendant filed a petition for a writ of mandate, which we 

construed as a notice of appeal. 

DISCUSSION

Defendant argues that the trial court erred in denying his 

petition to vacate his murder conviction and to resentence him 

under section 1172.6. 

In 2018, our Legislature amended the definition of 

“murder” in our state to preclude a jury from “imput[ing]” the 

“malice” element of that crime “based solely on [a defendant’s] 

participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s 

purpose was to ensure that “[a] person’s culpability for murder 

[is] premised upon that person’s own actions and subjective mens 

rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability 

for murder is limited to persons (1) who are the actual killer; (2) 

who aided and abetted the actual killer in the murder (that is, 

who acted with the intent to kill); or (3) who were a major 

participant in the underlying felony that resulted in the killing, 

but only if they also acted with reckless indifference to human 

life. (§§ 188, subd. (a)(3), 189, subd. (e); e.g., People v. 

Johns (2020) 50 Cal.App.5th 46, 58-59.)

Section 1172.6 is the procedural vehicle by which persons 

convicted in now-final judgments can seek to vacate convictions 

that do not satisfy the now-current definition of “murder.” 

Where, as here, a defendant files a facially sufficient petition and 

the record does not otherwise foreclose relief as a matter of law, 

the trial court must issue an order to show cause and convene an 

evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, the 

People have the burden of proving to the trial court, acting as an 
8

independent factfinder, that a defendant is guilty of murder on a 

still-valid theory. (§ 1172.6, subd. (d)(3).)

As pertinent here, the trial court found beyond a 

reasonable doubt that defendant was guilty under the still-valid 

theory that he was a major participant in the robbery that 

resulted in Williamson’s death and that he acted with reckless 

indifference to human life. Our task is to assess whether 

“substantial evidence”—that is evidence that is reasonable, 

credible, and of solid value—supports the trial court’s 

independent finding that defendant acted with reckless 

indifference. (People v. Nieber (2022) 82 Cal.App.5th 458, 476.) 

In so doing, we view the evidence in the light most favorable to 

the court’s finding, drawing all reasonable inferences in support 

of that finding. (Ibid.)

I. Pertinent Legal Principles

Because the propriety of the trial court’s denial of 

defendant’s section 1172.6 turns on whether substantial evidence 

supports its finding that defendant was a major participant in 

the robbery who acted with reckless indifference to the value of 

human life, further explication of those terms is helpful.

A. Major participant

In People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court 

defined a “major participant” in a robbery as someone whose 

“personal involvement” is “substantial”; such a participant “need 

not be the ringleader,” but his involvement must be “greater than 

the actions of an ordinary aider and abettor.” (People v. Williams

(2015) 61 Cal.4th 1244, 1281; Banks, at pp. 801-802.) Courts are 

to examine the totality of the circumstances when evaluating the 

extent of participation, including several factors our Supreme 
9

Court identified in Banks as relevant but not dispositive on the 

issue: (1) the defendant’s role in planning the robbery; (2) his role 

in supplying or using lethal weapons; (3) his awareness of the 

“particular dangers posed by the nature of the crime, weapons 

used, or past experience or conduct of the other participants”; (4) 

his presence at the scene of the killing and thus whether he was 

“in a position to facilitate or prevent the actual murder”; and (5) 

his actions after the use of lethal force. (Banks, at p. 803; Clark, 

at p. 611.)

B. Reckless indifference to human life

In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 

Cal.4th 522, our Supreme Court spelled out that a defendant acts 

with reckless indifference to human life when he ““‘knowingly 

engag[es] in criminal activities known to carry a grave risk of 

death.”’” (Banks, at p. 801, quoting People v. Estrada (1995) 11 

Cal.4th 568, 577, quoting Tison v. Arizona (1987) 481 U.S. 137, 

157.) This standard “has a subjective and an objective”

component. (In re Scoggins (2020) 9 Cal.5th 667, 677

(Scoggins).) To satisfy the subjective component, “‘[t]he 

defendant must be aware of and willingly involved in the violent 

manner in which the [underlying felony] is committed,’ and . . . 

must consciously disregard ‘the significant risk of death his or 

her actions create.’” (Ibid., quoting Banks, at p. 801.) The key is 

whether the defendant evinces “a willingness to kill (or to assist 

another in killing) to achieve a distinct aim, even if the defendant 

does not specifically desire that death as the outcome of his 

actions.” (Clark, p. 617.) To satisfy the objective component, the 

risk of death “‘“must be of such a nature and degree that, 

considering the nature and purpose of the [defendant’s] conduct 

and the circumstances known to him . . . , its disregard involves a 
10

gross deviation from the standard of conduct that a law-abiding 

person would observe in the [defendant’s] situation.”’” (Scoggins, 

at p. 677, quoting Clark, at p. 617.)

Our Supreme Court has identified a number of 

considerations bearing on whether a defendant has acted 

with reckless indifference to human life. “No one of these 

considerations is necessary, nor is any one of them necessarily 

sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is 

the totality of the considerations (Scoggins, supra, 9 Cal.5th at p. 

677). The considerations are: (1) “Did the defendant use or know 

that a gun would be used during the [underlying] felony,” and, 

relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was 

the defendant physically present at the crime,” such that he had 

“the opportunity to restrain the crime or aid the victim?”; (3) 

“What was the duration of the interaction between the 

perpetrators of the [underlying] felony and the victims?”; (4) 

“What was the defendant’s knowledge of his . . . confederate’s 

propensity for violence or likelihood of using lethal force?”; and 

(5) “What efforts did the defendant make to minimize the risks of 

violence during the felony?” (Ibid., citing Clark, supra, 63 

Cal.4th at pp. 618-623.)

II. Analysis

Before examining whether substantial evidence supports 

the trial court’s findings that defendant was a major participant 

in the robbery and that he acted with reckless indifference, we 

explain why several arguments defendant makes are irrelevant. 

He argues that there is no evidence that he was the actual 

shooter and no evidence that he acted with the intent to kill. 

This does not matter: As explained above, a murder conviction is 

valid if it relies on proof that the defendant was the actual killer, 
11

that he acted with the intent to kill, or that he was a major 

participant in an underlying felony and acted with reckless 

indifference to human life; whether there is evidence of the first 

two is irrelevant to whether there is evidence of the third.4

Defendant argues that the prosecutor at the original trial made 

arguments to the jury that were inconsistent with how the law 

changed four years later. This also does not matter: What 

matters is whether the trial court hearing defendant’s section 

1172.6 petition applied the law as it exists today, not whether the 

trial prosecutor accurately prognosticated what our Legislature 

might do years later. Relief under section 1172.6 does not turn 

on clairvoyance. Defendant argues that not all participants in a 

robbery automatically qualify as major participants acting with 

reckless indifference to the value of human life. This also does 

not matter because, as discussed next, we evaluate whether the 

evidence shows something more—namely, that defendant acted 

as a major participant in this robbery and so acted with reckless 

indifference to human life.

A. Major participant

Substantial evidence supports the trial court’s finding that 

defendant was a major participant in the robbery of Williamson. 

Defendant, Mackbee and Marcel certainly had a plan: Marcel 

induced Williamson to come with him to Long Beach, ostensibly 

on the promise of having a buyer lined up, and drove Williamson 

to defendant’s garage; defendant posed as that buyer, going so far 

as to specially groom himself, put on a suit, and bring a briefcase; 

and defendant and Mackbee brought at least one gun to the 

4 Defendant is also wrong that there is no evidence that he 

was the actual killer; defendant told others that he had shot 

Williamson.
12

garage to force Williamson to hand over the marijuana he 

brought with him. Defendant knew of the plan, commenting 

later that the robbery did not go “as planned.” And defendant’s 

role was integral to that robbery plan. Although there is no 

direct evidence that defendant was the sole planner, defendant’s 

central role as the faux buyer supports a reasonable inference 

that defendant was at least partially involved in planning how 

the robbery would go down. The evidence also supports the 

inference that defendant may have been the shooter (and hence 

used lethal weapons), because defendant admitted as much to his 

girlfriend and also had a gun in his possession soon after the 

robbery. Mackbee also told others that the plan—in advance—

was for defendant to be “the shooter.” Although there was no 

evidence that defendant knew Mackbee had engaged in violence 

in the past, it is fair to infer that defendant knew of the 

“particular dangers” posed by bringing a gun into a small,

enclosed garage in order to rob a drug dealer. Defendant was 

present in the garage when Williamson was shot, and hence in a 

position to stop the shooting. And after the use of lethal force, 

defendant and Mackbee worked together to strip Williamson out 

of his clothes and then transport and dump his body in an 

alleyway—all while Williamson was still breathing. 

Defendant musters what boils down to three arguments in 

response.5 First, and without any citation to the record,

5 Defendant makes two other arguments, but they rest on a 

misreading of the record. In his opening brief, defendant argues

that he was not present at the scene of the robbery and murder, 

but this is patently wrong—as defendant concedes in his reply 

brief. Defendant also argues that he did not participate in the 

“kidnapping,” but the special circumstance in this case was based 

on a killing in the course of a robbery, not a kidnapping. 
13

defendant argues that he had “little role” in planning the robbery 

and that Marcel was the “mastermind.” Aside from having no 

basis in the record, this argument ignores defendant’s key and 

critical role in the robbery itself, which required him to act in a 

certain way—and hence required some modicum of advanced 

planning. Second, defendant notes that there is no evidence in 

the record that he was aware of Mackbee’s tendency to engage in 

violence. Defendant is correct, but the absence of this particular 

fact does not undermine the totality of evidence tending to show 

that defendant was a major participant in the robbery. Third and 

lastly, defendant argues that there is no evidence that his 

“inaction” in not helping Williamson while he stripped him and 

dumped his body in an alley played a role in Williamson’s death. 

This argument seems to rest on a notion that this factor does not 

count against defendant unless his callousness had a causal link 

to Williamson’s death. Defendant is wrong. This factor is 

relevant to the major participant analysis because his actions 

may continue to reflect his integral role in the robbery, and here 

it did. Defendant was actively involved in disposing of the 

robbery victim’s body after the fact, and thus continued to play a 

vital role in the robbery.

B. Reckless indifference to human life

Substantial evidence supports the trial court’s finding that 

defendant knowingly engaged in criminal activities known to 

carry a grave risk of death by evincing a willingness to kill that 

entailed a gross deviation from the standard of conduct that a 

law-abiding person would observe, and hence acted with reckless 

indifference to human life. 

Defendant’s lack of involvement in any kidnapping is therefore 

irrelevant.
14

More generally, defendant and his cohorts engaged in 

conduct that carries with it a particularly high risk of violence 

because they chose to plan and lead a crime with a 

particularly high risk of violence—armed robbery of a drug 

dealer. (In re McDowell (2020) 55 Cal.App.5th 999, 1013.) 

Defendant also played a central and integral role in the robbery,

invoking the maxim that “the greater the defendant’s 

participation in the [underlying] felony . . . , the more likely he or 

she acted with reckless indifference to human life.” (People v. 

Garcia (2020) 46 Cal.App.5th 123, 146-148.) 

More specifically, the pertinent Banks and Clark factors 

confirm that defendant acted with reckless indifference to human 

life. Although there is no evidence that defendant had 

foreknowledge of Mackbee’s propensity for violence or likelihood 

of using lethal force, and the record does not indicate how long 

Mackbee and defendant interacted with Williamson in the garage 

before shooting him, most of the other factors support the trial 

court’s finding of reckless indifference. Defendant knew a gun 

would be used to rob Williamson; indeed, Mackbee later said that 

the plan was for defendant to “shoot” Williamson. Defendant was 

physically present at the scene of the robbery and was in a 

position to render aid to Williamson after he was shot. He did 

not; instead, he indifferently pulled off Williamson’s clothes, 

stuffed him a car, and dumped his body in an alleyway—all as 

Williamson was still struggling to breathe. Although defendant 

argues that there is no evidence that defendant was close enough 

to Mackbee to prevent Mackbee from taking a sudden action to 

harm Williamson, we reject this argument: The robbery occurred 

in a garage, not a stadium; no one was more than a few steps and 

an arm’s length away from anyone else. And defendant took no 
15

effort to minimize the risk of violence during the felony. Instead, 

he helped his friend maneuver a drug deal into a small, enclosed

space, while they were armed with a gun, in order to wrest drugs 

from their intended victim. 

Defendant makes what boils down to three arguments in 

response. First, he argues that it is not enough to show that he 

knew Mackbee was planning to rob Williamson. This is true, but 

the evidence here shows much more than defendant’s awareness 

that he was going to participate in a robbery. Second, defendant 

asserts that he “did not want anyone to get killed.” Although 

defendant stated after the fact that he felt that he “messed up” 

and that “shit didn’t go right as planned,” that may evince killer’s 

remorse rather than the contemporaneous absence of an intent to 

kill—particularly in light of Mackbee’s statement that the plan 

all along was for defendant to shoot Williamson. Third and 

lastly, defendant seems to suggest that our prior appellate 

opinion forecloses a finding that defendant acted with reckless 

indifference. He is wrong. To be sure, we found that the 

instructional error on the special circumstance was not harmless 

beyond a reasonable doubt because the evidence as to whether 

defendant acted with reckless indifference cut both ways (and 

thus presented a “closer issue” for the jury to resolve than the 

question of whether defendant was a “major participant,” on 

which the evidence was overwhelming). But we went on to find 

that the evidence cutting in the People’s favor could support a 

finding that defendant acted with reckless indifference. Here, 

the trial court independently found the evidence cutting in favor 

of a finding of reckless indifference to be more persuasive. Our 

review for substantial evidence obligates us to accept the trial 

court’s view of the evidence. Once we do, we agree with our prior 
16

determination that this evidence—so viewed—is amply sufficient 

to support a finding that defendant acted with reckless 

indifference to the value of human life.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST 

_________________________, J.

CHAVEZ