Filed 12/17/21 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNIE DALERAE JOHNSON,

Defendant and Appellant.

D077777

(Super. Ct. No. INF053406)

APPEAL from an order of the Superior Court of Riverside County, John 

D. Molloy, Judge. Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson, Alan L. Amann and Felicity Senoski, Deputy Attorneys General, 

for Plaintiff and Respondent. 
2

A jury in 2008 convicted defendant Johnnie Dalerae Johnson and 

Reggie Allan Bullock, Jr. of second degree murder (Pen. Code, § 187, subd. 

(a))1 for the beating death of fellow inmate Charles Green at the 

Chuckawalla Valley State Prison (Chuckawalla). We affirmed Johnson’s 

conviction in People v. Bullock, et al. (Nov. 21, 2011, D055890 [nonpub. opn.])

(Bullock), concluding Johnson and Bullock were prosecuted as “direct 

perpetrators” of Green’s murder under an implied malice theory and there 

was “no evidence” to support a finding (for purposes of a lesser-included 

offense instruction) that Johnson acted without malice during what we 

described as a “vicious,” unprovoked attack on Green. (Bullock, supra, 

D055890.)

In January 2019, Johnson filed a petition under section 1170.95 to 

vacate his second-degree murder conviction (the Petition). The trial court, 

after appointing Johnson counsel and considering the multiple briefs 

submitted by the parties, initially issued an order to show cause (OSC) why 

the Petition should not be granted. It then subsequently reconsidered that 

ruling and summarily denied the Petition, finding Johnson was ineligible for 

relief under section 1170.95 as a matter of law. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

A. Johnson’s Murder Trial

Chuckawalla is a low-level prison in California’s prison system. In 

June 2005, Bullock and Johnson were housed in building C-7 on C yard. 

1 All further undesignated statutory references are to the Penal Code 

unless indicated otherwise.

2 We derive the factual background primarily from our Bullock opinion, 

which was included in the record.
3

Johnson was scheduled to be released in about six months, after he was 

incarcerated for violating a condition of probation. (Bullock, supra, 

D055890.)

“Frank Barbarossa, Robert Deffenbaugh and Jack Woller also were 

housed in building C–7.[3] Barbarossa was the ‘shot caller’ for white inmates 

in C yard . . . . As a shot caller, Barbarossa had authority over what 

happened in C yard among white inmates; he made decisions and issued 

orders.” (Bullock, supra, D055890.) 

On June 20, 2005, Green was transferred to C Yard. On his arrival, 

Deffenbaugh and Woller asked Green for his “paperwork,” which included his 

commitment offense. “The following day, Deffenbaugh and Woller learned 

that Green was a child molester[.] Barbarossa authorized a ‘hit’ on Green. 

Woller and Deffenbaugh told Barbarossa that Johnson had agreed to assault 

Green. Bullock volunteered to help Johnson.” (Bullock, supra, D055890)

“Johnson wrote an anonymous note to prison guards asking that Green 

be removed because his life was in danger, and Bullock directly warned 

Green that he was in danger. Nonetheless, Bullock and Johnson complied 

with Barbarossa’s directive as transmitted by Deffenbaugh . . . .” (Bullock, 

supra, D055890.)

Sometime after 9:00 p.m. on June 21, Bullock entered the section C 

bathroom, intercepted Green, and punched him in the chest and kicked him 

in the head with the bottom of his boot. Inmate Elton Chubbuck, who was 

near the bathroom, testified he heard a “loud slap and then ‘a kaboom’ ” while 

Green and Bullock were in the bathroom. Immediately after Bullock left the 

3 Barbarossa, Bullock, Deffenbaugh, and Woller are not parties to this 

appeal. 
4

bathroom, Johnson entered. Inmates next heard “slapping, thudding and 

stomping noises coming from the bathroom before Johnson left.” (Bullock, 

supra, D055890.) 

After the attack, Chubbuck entered the bathroom and found Green

lying on the floor. Chubbuck notified correctional officers, and a few minutes 

later a prison medical team responded to treat Green. “A medical technician 

noted that Green had numerous injuries, including a deep laceration to his 

left temple, bruises and hematomas on both temples, a raised red area on his 

sternum and abrasions to his upper back.” Shortly before midnight, Green 

was transported by ambulance to Palo Verde Hospital. A CT scan showed 

that Green had a blood clot on his brain. Due to the severity of his injuries, 

hospital staff contacted three hospitals with trauma centers. At 5:45 a.m., 

Green was flown to San Diego and admitted at 7:40 a.m. to the head trauma 

center at UC San Diego Medical Center. (Bullock, supra, D055890.)

On arrival, doctors found Green in a comatose condition with fixed 

dilated pupils. Doctors determined he had an epidural hemorrhage on the 

right side of his brain, a blood clot, bruising to his brain and swelling as a 

result of “blunt trauma injury.” Green underwent surgery, after which he 

was placed on life support. Three days later, Green remained nonresponsive 

and comatose. After being told Green had an irrecoverable brain injury, his 

family on June 27 decided to withdraw life support. Green died shortly 

thereafter. (Bullock, supra, D055890.)

“Green’s autopsy revealed a minimum of six or seven separate impacts 

to the head. Green suffered all levels of injuries to his head: external 

injuries; skull fractures extending from both eyes; hemorrhages throughout 

his scalp; two epidural hemorrhages, subdural hemorrhages and bleeding 

into the brain. . . . The injuries were unlike those occurring in simple 
5

collapse, fall-type situations. [¶] The medical examiner testified the cause of 

death was blunt-force head injuries.” (Bullock, supra, D055890.)

“When interviewed by a sheriff’s detective two months after the attack 

on Green, Johnson said that he stomped on Green’s head ‘three or four times’

and ‘for a couple minutes.’ Johnson also said that he stomped on Green’s 

nose with the knowledge that if his nose was pushed into his brain with 

sufficient force, it would result in brain damage and death. This information 

was included in a redacted transcript of the interview that was read to the 

jury.” (Bullock, supra, D055890.)

In defense, a neurosurgeon testified that Green should have received 

immediate neurological care. The expert testified that the 10-hour delay in 

getting Green this care was “medically unacceptable and was a substantial 

factor in the cause of death.” (Bullock, supra, D055890.)

B. Appeal

Johnson appealed his second-degree murder conviction. Among other

arguments he contended trial counsel was ineffective for failing to object to 

redactions made to his postarrest statement to police. Johnson also joined 

Bullock in arguing the court erred in failing to instruct the jury sua sponte on 

involuntary manslaughter. (Bullock, supra, D055890.)

In rejecting Johnson’s argument his counsel was ineffective, we 

concluded in the direct appeal that the redacted version of his postarrest 

interview did not leave the jury with a “misleading picture of his role in 

Green’s attack.” To the contrary, we concluded “there [was] no question that 

Johnson’s participation in the attack was extensive and vicious. The jury 

was aware that Bullock initiated the attack on Green and knew that he 

pulled Green down from behind, punched him in the chest and then kicked 

him once in the head. When Johnson entered the bathroom, Green was lying 
6

on the bathroom floor defenseless. Johnson elevated the level of violence by 

repeatedly kicking Green in the head and stomping on his nose. Johnson did 

this knowing that brain damage or death could result if the nose was 

forcefully pushed into the brain.” Based on this same undisputed evidence, 

we also concluded that, even if the court erred in making one or two 

redactions to Johnson’s statement, that error was harmless under “any 

standard of review.” (Bullock, supra, D055890.)

We also rejected Johnson’s argument that the trial court had a sua 

sponte duty to instruct on involuntary manslaughter. We held the evidence 

was undisputed that “Green's fatal injuries were inflicted by the use of great, 

violent force”; that the “attack was an aggravated felony assault by means of 

force likely to produce great bodily injury (§ 245, subd. (a)(1))”; and that, 

based on the nature of the attack, its remote location (i.e., the bathroom), and 

the severity of the injuries Green sustained, “no reasonable jury could find 

Johnson engaged in the type of activity that would support an involuntary 

manslaughter conviction.” (Bullock, supra, D055890.)

But that’s not all. In addressing Johnson’s argument there was 

evidence to support a lesser-included instruction because the “jury could have 

concluded that he did not intend to kill Green,” we found he was “mistaken,” 

and concluded there was “no evidence,” as opposed to merely a lack of 

substantial evidence, to show Johnson acted without implied malice in the 

aggravated assault of Green. (Bullock, supra, D055890.)

C. The Petition

In January 2019, Johnson filed his Petition pursuant to Senate Bill No. 

1437 (Stats. 2018, ch. 1015) (Sen. Bill No. 1437), which had become effective 

on January 1. The court appointed counsel to represent Johnson. On 

January 17, 2020, the court issued an OSC why the Petition should not be 
7

granted. The People in response filed a supplemental opposition to the 

Petition, which Johnson opposed in an OSC brief. The People thereafter filed 

a memorandum of points and authorities on the scope of an OSC hearing

under section 1170.95. Johnson in return filed a reply to the People’s points 

and authorities regarding the scope of an OSC hearing. 

On March 13, 2020, the trial judge returned the matter to the previous 

department for reconsideration of its finding that Johnson had made a prima 

facie showing for relief on his Petition. On July 24, 2020, the trial court that 

had originally issued the OSC heard additional argument and, over the 

defense’s objection, agreed with the People that Johnson’s record of conviction 

showed he was statutorily ineligible for relief under section 1170.95 as a 

matter of law.

In reaching its decision, the trial court exclusively relied on our opinion 

in the direct appeal. In Bullock, we concluded “there was no question that 

Johnson’s participation in the attack was extensive and vicious”; and no 

evidence Johnson acted without implied malice (Bullock, supra, D055890). 

Because Bullock established as a matter of law that Johnson would be 

convicted of murder notwithstanding the change to section 188, the trial 

court summarily denied the Petition.

II. DISCUSSION

A. Guiding Principles

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to 

amend 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 
8

reckless indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 

959 (Lewis); see People v. Gentile (2020) 10 Cal.5th 830, 843.)

As relevant here, Senate Bill No. 1437 achieves these goals by 

amending section 188 to provide that, “[e]xcept as stated in subdivision (e) of 

Section 189 [applicable to felony murder],4 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.” 

(§ 188, subd. (a)(3).)

In addition to amending sections 188 and 189, Senate Bill No. 1437 

added section 1170.95, which provides a procedure for convicted murderers—

who could not be convicted under the law as amended—to seek relief 

retroactively. Under this statute, an offender must file a petition in the 

sentencing court averring that:

“(1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder or murder under 

the natural and probable consequences doctrine[;]

“(2) The petitioner was convicted of first degree or second 

degree murder following a trial or accepted a plea offer in 

lieu of a trial at which the petitioner could be convicted for 

first degree or second degree murder[; and]

“(3) The petitioner could not be convicted of first or second 

degree murder because of changes to Section 188 or 189 

made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-

(3).) 

4 To be found guilty for murder under newly amended section 189, a 

person must have been the “actual killer”; or acted with an “intent to kill” 

and aided and abetted the actual killer in committing first degree murder; or 

been a “major participant in the underlying felony and acted with reckless 

indifference to human life.” (§ 189, subd. (e)(1)-(3).)
9

Counsel must be appointed if requested by petitioner and if his or her 

petition is facially valid. (Lewis, supra, 11 Cal.5th at p. 970.) “The court 

shall review the petition and determine if the petitioner has made a prima 

facie showing that the petitioner falls within the provisions of this section.” 

(§ 1170.95, subd. (c).) “If the petitioner makes a prima facie showing that he 

or she is entitled to relief, the court shall issue an order to show cause.” 

(Ibid.)

Key to the instant case, the Supreme Court recently held that a trial 

court can rely on a petitioner’s record of conviction in determining whether he 

or she has made a prima facie showing of eligibility under section 1170.95. 

(See Lewis, supra, 11 Cal.5th at p. 971 [the “record of conviction will 

necessarily inform the trial court’s prima facie inquiry under section 1170.95, 

allowing the court to distinguish petitions with potential merit from those 

that are clearly meritless”].) This inquiry is consistent with the overall 

purpose of section 1170.95, which is “to ensure that murder culpability is 

commensurate with a person’s actions, while also ensuring that clearly 

meritless petitions can be efficiently addressed as part of a single-step prima 

facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).)” (Lewis, at

p. 971.)

Although the prima facie inquiry under subdivision (c) of section 

1170.95 is “limited”(Lewis, supra, 11 Cal.5th at p. 971), if the record of 

conviction, “including the court’s own documents, ‘contain[s] facts refuting 

the allegations made in the petition,’ then ‘the court is justified in making a 

credibility determination adverse to the petitioner.’ ” (Ibid., quoting People v. 

Drayton (2020) 47 Cal.App.5th 965, 979 (Drayton).) Even though appellate 

opinions are part of the record of conviction, their “probative value” is to be 

determined on a case-by-case basis and such opinions “ ‘might not supply all 
10

answers.’ ” (Lewis, at p. 972.) In those instances, a trial court “should not 

engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion’ ” in determining whether a petitioner has made a prima facie 

showing of eligibility under section 1170.95. (Lewis, at p. 972, quoting 

Drayton, at p. 980.)

We review de novo the question of whether the trial court properly 

reviewed Johnson’s record of conviction in determining he was ineligible for 

relief. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; see People v. Duchine

(2021) 60 Cal.App.5th 798, 811 (Duchine) [applying de novo review to claims 

of error based on the interpretation of section 1170.95].)

B. Analysis

Johnson contends the trial court erred in denying his Petition because 

“the issue of malice was disputed at trial where he was tried with four other 

inmates and the jurors easily could have been confused as to whether or how 

to apply the natural and probable aiding and abetting instructions read after 

closing arguments.” We find this contention unavailing. 

First, the trial court properly relied on Johnson’s record of conviction, 

including our opinion in the direct appeal, in determining whether he made a 

prima facie showing of eligibility for relief under section 1170.95. (See Lewis, 

supra, 11 Cal.5th at pp. 970-971; Drayton, supra, 47 Cal.App.5th at p. 979.)

Second, we agree with the trial court that Johnson is not entitled to 

relief under the statute as a matter of law. In Bullock, we held there was no 

evidence Johnson acted without malice in the murder of Green. The trial 

court thus found our opinion in the direct appeal dispositive in denying 

Johnson relief under section 1170.95. (See People v. Murillo (2020) 

54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978 [a denial of 

a defendant’s petition at the prima facie stage under section 1170.95 is 
11

proper “if the record of conviction demonstrates that ‘the petitioner is 

ineligible for relief as a matter of law’ ”]; cf. Duchine, supra, 60 Cal.App.5th 

at p. 816 [reversing denial of a petition for resentencing because trial court 

engaged in “judicial factfinding on issues not conclusively resolved by the 

record of conviction”].)

Third, our conclusion in the direct appeal distinguishes the instant case 

from those decisions that have recently come under scrutiny based on their 

application of a substantial evidence test. (See, e.g., People v. Garcia (2020) 

57 Cal.App.5th 100, 106, review granted February 10, 2021, S265692 

[concluding a petitioner failed to carry his burden at the prima facie stage 

because “the record of conviction contains substantial evidence based on 

which a reasonable trier of fact could find the petitioner guilty of murder 

beyond a reasonable doubt under current law despite the changes made by 

Senate Bill 1437”]; contra, People v. Aleo (2021) 64 Cal.App.5th 865, 872

[recognizing the majority of appellate courts disagree with Garcia and have 

found the substantial evidence test has no application at the prima facie 

stage]; People v. Secrease (2021) 63 Cal.App.5th 231, 246 (Secrease), review 

granted June 30, 2021, S268862 [“In a section 1170.95 proceeding, the 

ultimate question is not a backward-looking inquiry into whether a past 

conviction finds support in substantial evidence,” but “instead whether, 

applying changes brought about by Senate Bill 1437, there is a prima facie 

case ‘that [the defendant] did not, in fact, act or harbor the mental state 

required, for a murder conviction under current law’ ”].)

Fourth, for the same reason(s) we also reject Johnson’s argument that 

the jury could have been “confused,” much less “easily confused” as he 

contends, by the trial court’s aiding and abetting instructions. As we made 

clear in the direct appeal, Johnson and Bullock were tried and convicted as 
12

director perpetrators in Green’s murder, while Barbarossa, Deffenbaugh, and 

Woller were prosecuted on an aiding and abetting theory. (Bullock, supra, 

D055890 [“In this joint trial, Bullock and Johnson were prosecuted as direct 

perpetrators of the murder under a theory they acted with implied malice” 

(italics added)]; (Bullock, supra) [“Bullock and Johnson were tried along with 

Barbarossa, Deffenbaugh and Woller on the murder charge [and] [t]he latter 

three were prosecuted on an aiding and abetting theory rather than as direct 

perpetrators,” (italics added)].) The prosecutor also made clear during closing 

that Barbarossa, Deffenbaugh, and Woller were liable, if at all, as aiders and 

abettors and therefore, unlike Johnson, were not being prosecuted as direct 

participants under an implied malice theory. (See People v. White (2014) 223 

Cal.App.4th 512, 525 [the record of conviction may include the parties’ closing 

arguments].)

Fifth, we reject Johnson’s contention the trial court erred because in 

Bullock we allegedly did not address what he claims is an open-ended issue 

regarding the accuracy of his postarrest interview transcript. Initially, we 

note the issue of the accuracy of the transcript was expressly litigated in the 

direct appeal. We held in Bullock the redactions did not leave “the jury with 

a misleading picture of [Johnson’s] role in Green’s attack” (Bullock, supra, 

D055890); Johnson was not prejudiced by the redactions; and any error was 

harmless under any standard of review. (Bullock, supra.)

In addition, “[n]othing in the language of section 1170.95 suggests it 

was intended to provide redress for allegedly erroneous prior factfinding. In 

particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous 

prior findings or the possibility of proving contrary facts if given a second 

chance. Rather, it requires that the petitioner could not be convicted of 

murder because of the changes to sections 188 and 189, not because a prior 
13

fact finder got the facts wrong. The purpose of section 1170.95 is to give 

defendants the benefit of amended sections 188 and 189 with respect to 

issues not previously determined, not to provide a do-over on factual disputes 

that have already been resolved.” (People v. Allison (2020) 55 Cal.App.5th 

449, 461, (italics omitted); see also Secrease, supra, 63 Cal.App.5th at pp. 254-

255 (review granted) [“section 1170.95, subdivision (c) cannot reasonably be 

read to permit a ‘do-over’ of factual issues that were necessarily resolved 

against a section 1170.95 petitioner by a jury”].)

III. DISPOSITION

The order denying Johnson’s section 1170.95 petition is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.