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Filed 9/30/22 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

SHIHEIM JOHNSON,

Defendant and 

Appellant.

 A158418

 (Alameda County

 Super. Ct. No. 612650)

Defendant appeals after a jury conviction for murder 

(Pen. Code1, § 187), second degree robbery (§ 211), and unlawful 

possession of a firearm (§ 29820, subd. (b)). He contends the 

felony murder jury instruction explaining the term “reckless 

indifference to human life” given at his trial permitted the jury to 

convict him under an invalid legal theory. He also requests that 

we review for abuse of discretion the trial court’s ruling that it 

would not disclose a key witness’s psychiatric records. We find no 

merit to defendant’s claim that his conviction should be reversed 

because the jury was permitted to convict him under an invalid 

legal theory, and we find that the trial court did not err in ruling 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
2

that the psychiatric records were not to be disclosed. However, 

we remand the matter for certain clerical corrections and for 

resentencing on the determinate portion of defendant’s sentence 

due to recent ameliorative amendments to section 1170.

BACKGROUND

The day before the murder at issue, Joe G. celebrated his 

birthday with his cousin, Torian H., and his friend Tyron I. 

Several other people were at his party, some of whom were 

friends of Joe and some of whom were friends of Tyron. Joe met 

defendant, a friend of Tyron, at the party. 

The morning after the party, Torian and Joe discussed 

purchasing a gun. Knowing that Tyron had a gun, Joe contacted 

him so Torian could arrange to buy the gun. Tyron was to come 

alone to Joe’s house.

Tyron arrived with defendant, and the four met inside Joe’s 

house. Joe then told everyone to move outside because his 

parents would be returning home. Once outside, Torian pulled 

out money to buy the gun, and defendant and Tyron pulled out 

guns. Tyron pointed his gun at Torian, and defendant pointed 

his gun at Joe’s head. Tyron told Torian and Joe to give them 

“everything you got.” Torian responded, “I’m not letting this shit 

happen to me.” He struck Tyron with his fists. As they 

struggled, Joe yelled, “Put the gun down.” On direct 

examination, Joe testified that, several times, defendant yelled, 

“Shoot that [N-word].” On cross-examination, defense counsel 

impeached Joe with his preliminary hearing testimony wherein 

Joe described defendant’s statements as “kind of like 
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whispering.” Joe acknowledged the statements were not made as 

part of a conversation between defendant and Tyron, and Tyron 

did not respond. Tyron fired a shot that killed Torian, and Tyron 

and defendant ran. Defendant took money and a cell phone from 

Joe. 

The District Attorney filed an information charging 

defendant with murder (§ 187, subd. (a), count 1); second degree

robbery (§ 211, count 2); and two counts of possession of a firearm 

by a prohibited person (§ 29820, subd. (b), counts 3 & 4). The 

information also alleged enhancements for personal use of a 

firearm for counts 1 and 2 (§§ 12022.5, subd. (a), 12022.53, 

subds. (b), (g)), and a prior strike conviction (§§ 667, subd. (e)(1), 

1170.12, subd. (c)(1)).

On count 1, the jury found defendant guilty of first degree 

felony murder, it found true the allegations that defendant was a 

major participant who acted with reckless indifference and who 

personally used a firearm, but it found not true that defendant 

aided and abetted or assisted in the murder with the intent to 

kill. On count 2, the jury found defendant guilty and found true 

that he personally used a firearm. On counts 3 and 4, the jury 

found defendant guilty. At a bench trial, the court found the 

prior strike allegation to be true. 

At sentencing, the court exercised its discretion to strike 

defendant’s prior conviction and the firearm enhancements for 

counts 1 and 2. Defendant received 25 years to life for count 1, a 

consecutive determinate term of 5 years for count 2, and the mid-
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term of eight months for counts 3 and 4 to run concurrently with 

the sentence for count 2.

DISCUSSION

I. The “Reckless Indifference” Instruction

A. Additional Background

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill No. 1437) became law (Stats. 2018, 

ch. 1015, § 3), and, as is relevant here, amended the definition of 

felony murder in section 189, subdivision (e)(3) to limit liability 

thereunder to cases where a non-killer defendant was a major 

participant in the underlying felony who acted with reckless 

indifference to human life, tracking the requirements for a felonymurder special-circumstance conviction under section 190.2. 

(§ 189, subd. (e)(3).)2 Under section 190.2, felony-murder is one of 

the 22 special circumstances that determine eligibility for the 

death penalty or life without possibility of parole in murder cases. 

(§ 190, subd. (a)(1)–(22).) For defendants who are non-killers but 

who may be exposed to liability under the felony-murder specialcircumstance provision (§ 190.2, subd. (a)(17)), section 190.2, 

subdivision (d) imposes an actus reus component—major 

participation—and a mens rea requirement—reckless 

2 Section 189, subdivision (e)(3) currently states, “A 

participant in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable 

for murder only if one of the following is proven: [¶] . . . [¶] [ ] 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.”
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indifference to human life. (In re Scoggins (2020) 9 Cal.5th 667, 

674.)

Prior to the enactment of Senate Bill No. 1437, the 

California Supreme Court in People v. Banks (2015) 61 Cal.4th 

788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), 

interpreted the “major participant” and “reckless indifference” 

language in section 190.2, subdivision (d) to incorporate the 

standards set by Tison v. Arizona (1987) 481 U.S. 137, and 

Enmund v. Florida (1982) 458 U.S. 782, regarding the minimum 

culpability required to impose a sentence of death under the 

Eighth Amendment. Our Supreme Court derived from Tison, 

Enmund, and subsequent cases a series of factors helpful in 

determining whether the “major participation” and “reckless 

indifference” components of section 190.2, subdivision (d), have 

been met (Banks, at p. 803; Clark, at pp. 618–6233). Our high 

court then applied those factors in reviewing the defendants’ 

substantial evidence challenges to the findings therein. (Ibid.)

At his trial in March 2019, following Clark and Senate Bill 

No. 1437, defendant requested a jury instruction defining 

“reckless indifference” that included the factors discussed in 

3 The Clark factors are: the defendant’s knowledge of 

weapons, and the use and number of weapons; the defendant’s 

proximity to the crime and opportunity to stop the killing or aid 

the victim; the duration of the offense, that is, “whether a murder 

came at the end of a prolonged period of restraint of the victims 

by defendant”; the defendant’s awareness that his or her 

confederate was likely to kill; and the defendant’s efforts to 

minimize the possibility of violence during the crime. (Clark, 

supra, 63 Cal.4th at pp. 618–623.)
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Clark. Defendant’s proposed instruction also stated that 

participation in an armed robbery, without more, does not 

constitute engaging in criminal activity that involves a grave risk 

of death. The trial court elected to give the prosecution’s 

proposed instruction, finding that it tracked the then-operative 

jury instruction for a reckless indifference finding under section 

190.2, subdivision (d) (CALCRIM No. 703), and it was less 

confusing than the instruction proposed by defendant. The court 

instructed the jury, “A person acts with reckless indifference to 

human life when he knowingly engages in criminal activity that 

he knows involves a grave risk of death.”4 

1. Analysis

On appeal, defendant argues that, in the absence of his 

requested admonition that participation in an armed robbery, 

without more, does not constitute engaging in criminal activity 

that involves a grave risk of death, the jurors reasonably would 

have believed that participation in a felony involving a 

foreseeable risk of death was sufficient to establish reckless 

indifference. On this basis, he asserts that his jury was 

4 In 2020, the Judicial Council Advisory Committee on 

Criminal Jury Instructions added optional language to 

CALCRIM Nos. 703 (Special Circumstances: Intent Requirement 

for Accomplice) and 540B (Felony Murder: First Degree—

Coparticipant Allegedly Committed Fatal Act) designed to 

capture the culpability factors enunciated in Clark. (See Bench 

Note to CALCRIM No. 703 (Apr. 2020 rev.), pp. 449–450, 452; 

Bench Note to CALCRIM No. 540B (Apr. 2020 rev.), pp. 269, 

272.)
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permitted to convict him on a legally invalid theory. We are 

unpersuaded. 

To succeed in showing that his jury was permitted to 

convict him under a legally invalid theory, defendant must 

demonstrate the instruction conveyed a theory contrary to law. 

(People v. Guiton (1993) 4 Cal.4th 1116, 1125 [an instruction 

contains a legal error if it includes an incorrect statement of law; 

a factual error exists if an otherwise valid legal theory is not 

supported by the facts or evidence in a case]; People v. Aledamat 

(2019) 8 Cal.5th 1, 7–8 [same]; see, e.g., People v. Stutelberg 

(2018) 29 Cal.App.5th 314, 318 [instruction that a box cutter 

could be an inherently deadly object was an incorrect statement 

of law]; People v. Green (1980) 27 Cal.3d 1, 67 [instruction that 

asportation element for kidnapping could be satisfied by 

transporting victim 90 feet was an incorrect statement of law].)

People v. Estrada (1995) 11 Cal.4th 568 (Estrada) precludes 

defendant from making the requisite showing. In Estrada, our 

Supreme Court rejected the argument that the trial court had a 

sua sponte duty to further define “reckless indifference to human 

life” in section 190.2, subdivision (d) for the jury. (Estrada, at pp. 

580–581.) The court held that “the generally accepted meaning of 

the phrase, ‘reckless indifference to human life,’ in common 

parlance amply conveys to the jury the requirement of a 

defendant’s subjective awareness of the grave risk to human life

created by his or her participation in the underlying felony. . . . 

The phrase therefore does not have a technical meaning peculiar 

to the law.” (Id. at p. 578, italics added.) The court further 
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instructed that, if a request for further instruction on the 

meaning of the term is made, the trial court should instruct that 

“reckless indifference to human life” means “knowingly engaging 

in criminal activities known to carry a grave risk of death.” (Id.

at p. 580.) The instruction in this case was virtually identical to 

the one Estrada approved to further define “reckless indifference 

to human life.” “[T]he reckless indifference to human life 

standard, especially as defined by the trial court in its 

instruction, is one that a jury may reasonably be expected to 

understand.” (People v. Price (2017) 8 Cal.App.5th 409, 444 

[discussing a similar instruction].) The instruction given was 

thus a correct statement of law. 

Nor does defendant show a reasonable likelihood that the 

jury impermissibly understood the instruction given to mean 

that, if the target felony is the kind of felony that involves a 

foreseeable risk of lethal force, the mere act of committing that 

felony is sufficient to establish reckless indifference. Again, the 

court instructed that a person acts with reckless indifference to 

human life when he “knowingly engages in criminal activity that 

he knows involves a grave risk of death.” (Italics added.) Per 

Estrada, a reasonable juror understands that “reckless 

indifference to human life” means subjective awareness of the 

grave risk to human life created by the defendant’s participation 

in the felony at issue. (Estrada, supra, 11 Cal.4th at p. 578.) It 

logically follows, then, that a reasonable juror understands the 

meaning of a “grave risk.” And dictionary definitions akin to the 

one defendant refers to in his briefing and our Supreme Court 
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jurisprudence recognize that participation in conduct involving a 

“grave risk” of death is commonly understood to occur where the 

conduct at issue is likely to produce death. (Merriam-Webster 

Dict. Online <https://www.merriamwebster.com/dictionary/grave> (as of July 12, 2022) [grave as an 

adjective means “likely to produce great harm or danger, a grave 

mistake”]; Banks, supra, 61 Cal.4th at pp. 800–802 [recognizing 

that, under section 190.2 and the United States Supreme Court 

jurisprudence codified therein, those who “subjectively 

appreciated that their acts were likely to result in the taking of 

innocent life” may be punished with death].) Given this, we 

cannot conclude that a reasonable juror would understand an 

instruction requiring awareness that the defendant’s conduct 

poses a “grave risk” of death to be satisfied where the defendant 

merely participates in a felony that involves the bare possibility 

of lethal harm. 

Defendant thus fails to persuade us that the instruction in 

this case presented a legally invalid theory because it omitted the 

Clark factors or that such omission would cause a juror to believe 

participation in armed robbery was alone sufficient to show 

reckless indifference. Clark does not compel “a more explicit jury 

instruction on particular factors or facts that must be proven to 

establish” reckless indifference. (People v. Price, supra,

8 Cal.App.5th at p. 451.) 

Defendant points out that, after his trial, CALCRIM 

Nos. 703 and 540B were altered to include optional language for 

the Clark factors, and those instructions now include optional 
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language for both the Banks and Clark factors. However, this 

language remains optional. In the context of holding that a preBanks and Clark felony-murder special-circumstance finding 

does not bar a petitioner from stating a prima facie claim for 

relief under section 1172.65, our Supreme Court recently 

discussed the substantial guidance Banks and Clark provided for 

the “major participant” and “reckless indifference” standards 

governing a felony-murder special-circumstance finding. (People 

v. Strong (2022) 13 Cal.5th 698, 705–707 (Strong).) At the same 

time, however, the court stated that “the mandatory [jury] 

instructions [for a felony-murder special-circumstance finding] 

did not change in the wake of Banks and Clark,” and it 

recognized that the additional language instructing on the Banks 

and Clark factors in CALCRIM No. 703 remains optional. 

(Strong, at p. 719 & fn. 4.) Accordingly, we cannot conclude that 

the instruction deemed acceptable in Estrada is a legally 

incorrect statement of law for reckless indifference under section 

190.2, subdivision (d) or section 189, subdivision (e)(3). As 

defendant frames his claim of error, the relevant inquiry is 

whether the jury instruction given contained legal error and 

whether there was a reasonable likelihood that the jury 

construed it in a legally impermissible manner. Under Estrada, 

5 This provision was originally codified as section 1170.95. 

In the wake of People v. Lewis (2021) 11 Cal.5th 952, the 

Legislature amended section 1170.95 to adopt certain of Lewis’s 

holdings. (Stats. 2021, ch. 551, § 1, subd. (b).) The Legislature 

then renumbered the provision without substantive change, 

effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
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the instruction was correct as given, and, as previously explained 

herein, it is not reasonably likely the instruction would be 

construed as defendant contends. 

Even if we were to find error in the trial court’s failure to 

give the Clark factors, the circumstances of this case lead us to 

conclude the error was harmless beyond a reasonable doubt. (See 

People v. Merritt (2017) 2 Cal.5th 819, 831 [finding jury 

instruction omitting elements of robbery subject to Chapman

harmless error analysis].)

The Banks and Clark factors significantly overlap (Strong, 

supra, 13 Cal.5th at p. 706), and the jury here was instructed 

under Banks to consider the role defendant played in planning 

the criminal enterprise that led to death; the role defendant 

played in supplying or using legal weapons; defendant’s 

awareness of particular dangers posed by the nature of the crime, 

any weapons used, or past experience or conduct of the other 

participant; defendant’s presence at the scene of the killing in a 

position to facilitate or prevent the actual murder; whether 

defendant’s own actions or inactions played a particular role in 

the death; and what defendant did after lethal force was used. 

(See Banks, supra, 61 Cal.4th at p. 803.)

The prosecution argued the same evidence supported 

findings of major participation and reckless indifference. 

Specifically, the prosecution argued that defendant arrived on the 

scene with Tyron I. to commit the robbery; he had his own gun; 

he actually robbed Joe G.; defendant and Tyron took out their 

guns at the same time, showing planning in advance; there was 
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evidence Tyron and defendant had guns on multiple occasions 

before the robberies; from a few short feet away, defendant 

encouraged Tyron to shoot the victim; and defendant fled the 

scene with Tyron after the crimes. Defendant offered little 

contradiction, challenging Joe G.’s memory of the statement 

made right before the shooting in an attempt to negate intent to 

kill, but otherwise relying heavily on an identity defense. 

The jury, having considered the evidence and the Banks

factors, found that defendant was a major participant. On this 

record, no reasonable jury that considered the Banks factors and 

made a major participant finding could have failed to find 

reckless indifference if instructed it could consider the Clark 

factors. (People v. Merritt, supra, 2 Cal.5th at pp. 831–833.) Any 

instructional error was therefore harmless. 

2. Discoverability of Psychiatric Records

Defendant requested that this court independently review a 

key witness’s psychiatric records to determine whether the trial 

court’s decision not to disclose these records to the defense was 

proper. The People did not oppose this request. 

“Evidence Code section 1014 generally privileges 

confidential communication between a patient and his or her 

psychotherapist.” (People v. Dworak (2021) 11 Cal.5th 881, 912 

(Dworak).) Under People v. Hammon (1997) 15 Cal.4th 1117, 

psychiatric material is generally undiscoverable prior to trial. 

(Ibid.) “ ‘Parties who challenge on appeal trial court orders 

withholding information as privileged or otherwise 

nondiscoverable “must do the best they can with the information 
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they have, and the appellate court will fill the gap by objectively 

reviewing the whole record.” ’ ” (Dworak, at p. 912.) 

We have reviewed the record and agree with the trial 

court’s assessment that the records at issue did not contain any 

information warranting disclosure. The trial court did not abuse

its discretion in rejecting disclosure of these materials. (Dworak, 

supra, 11 Cal.5th at p. 912 [reviewing trial court’s decision 

rejecting disclosure of psychological and psychiatric records for 

abuse of discretion].)

3. Remand for Determinate Resentencing and Clerical

Corrections

Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 

No. 567) recently amended section 1170, subdivision (b), to 

specify that, when a sentencing court chooses a term from a 

statutory triad, the chosen term shall not exceed the middle term, 

unless the facts supporting the aggravating circumstances are (1) 

established by the defendant’s stipulation, (2) proven to a jury (or 

to a court, if jury is waived) beyond a reasonable doubt, or (3) 

based on prior convictions evidenced by a certified record of 

conviction. (Stats. 2021, ch. 731, §§ 1.3, 3, subd. (c), adding 

§ 1170, subd. (b)(1)–(3), by amendment.) Senate Bill No. 567 also 

added a provision that requires the trial court to impose the low 

term if the defendant’s psychological, physical, or childhood 

trauma was a contributing factor in the commission of the 

offense, “unless the court finds that the aggravating 

circumstances outweigh the mitigating circumstances [so] that 

imposition of the lower term would be contrary to the interests of 
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justice.” (Stats. 2021, ch. 731, §§ 1.3, 3, subd. (c), adding § 1170, 

subd. (b)(6), by amendment.)6

The trial court here imposed a five-year, upper-term 

sentence for count 2. The parties agree that the above-mentioned 

ameliorative amendments apply retroactively to this case, and 

the matter should be remanded for resentencing on the 

determinate portion of defendant’s sentence under current 

section 1170. We agree. (People v. Flores (2022) 73 Cal.App.5th 

1032, 1038–1039 [remanding for resentencing under section 1170 

as amended by Senate Bill No. 567].) 

Next, as defendant notes, the sentencing minute order 

incorrectly states that his 1,330 presentence custody credits 

consist of 665 days of actual custody credits and 665 days of 

conduct credits, when the trial court’s oral pronouncement 

awarded him 1,330 days of actual custody credits. The People

6 As we read the legislation, Senate Bill No. 567 added 

subdivision (b)(6) to section 1170. (Stats. 2021, ch. 731, §§ 1.3, 3, 

subd. (c).) Senate Bill No. 567, Assembly Bill No. 124 (2021–2022 

Reg. Sess.), and Assembly Bill No. 1540 (2021–2022 Reg. Sess.) 

all proposed various changes to the Penal Code, including 

amendments to section 1170. All three bills were passed by the 

Legislature in September 2021 and approved by the Governor on 

October 8, 2021. (See Stats. 2021, ch. 695, § 5 [Assembly Bill 

No. 124], effective Jan. 1, 2022; Stats. 2021, ch. 719, § 2 

[Assembly Bill No. 1540], effective Jan. 1, 2022; Stats. 2021, 

ch. 731, § 1.3 [Senate Bill No. 567], effective Jan. 1, 2022.) The 

three bills overlapped in that they proposed similar, but not 

identical amendments to section 1170. Because Senate Bill 

No. 567 was the last bill signed by the Governor and has the 

highest chapter number, its amendments to section 1170 prevail 

over the amendments to that code section specified in the other 

two bills. (People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.)
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agree that the minute order should be modified to accurately 

reflect the court’s oral pronouncement, and we order the 

correction. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) 

On remand, the trial court should ensure that the operative 

abstracts of judgment accurately state the number and nature of 

presentence credits awarded to defendant.

Finally, the parties also agree that the first pages of the 

abstracts of judgment reflect an incorrect sentencing hearing 

date of September 19, 2019, rather than September 10, 2019. We 

order the trial court to correct this date on the indeterminate 

abstract of judgment on remand.7

DISPOSITION

Defendant’s determinate sentence is vacated, and the 

matter is remanded to the trial court to resentence defendant on 

the determinate portion of his sentence under Penal Code section 

1170, as amended by Senate Bill No. 567. On remand, the trial 

court is directed to enter an amended minute order for the 

sentencing hearing on September 10, 2019, that accurately 

reflects defendant’s presentence credits as of that date, and to 

ensure that the abstracts of judgment accurately state 

defendant’s presentence credits. The trial court is also directed 

to issue an amended indeterminate abstract of judgment that 

accurately reflects the sentencing date as set forth herein, and to 

send certified copies of the new abstracts of judgment to the 

7 Because the trial court must issue a new determinate 

abstract of judgment after resentencing, we need not order 

correction to the previously-issued determinate abstract of 

judgment.
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Department of Corrections and Rehabilitation. The judgment is 

otherwise affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

People v. Johnson (A158418)