Filed 2/22/24 P. v. Johnson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT JOHNSON,

Defendant and Appellant.

 B324960

 (Los Angeles County

 Super. Ct. No. TA037534)

APPEAL from an order of the Superior Court of 

Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed. 

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys 

General, for Plaintiff and Respondent.

____________________________
2

In 1998, a jury convicted petitioner Robert Johnson of the 

murder of Corie Williams and the attempted murder of Tyrone 

Lewis. Johnson appeals from the order denying his June 2022 

Penal Code1 section 1172.6 petition for resentencing, formerly 

numbered section 1170.95. Johnson argues the record of 

conviction does not necessarily show either that he was the 

actual killer or that he acted with malice aforethought. We 

disagree and affirm. 

BACKGROUND

1. Johnson’s Description of the Background Facts2

“ ‘The 118 East Coast Crips claim the area around Avalon 

Boulevard and Imperial Highway as their territory. Bounty 

Hunter Bloods who attend Centennial High School ride the MTA 

bus through that territory. There is a long-standing rivalry 

between Bloods and Crips gangs in general and between the 

118 East Coast Crips and Bounty Hunter Bloods in particular. 

1 Undesignated statutory citations are to the Penal Code. 

2 For purposes of this appeal, we accept the “facts” as 

Johnson recites them in his opening brief. He relies on the 

statement of facts in People v. Pugh (Mar. 23, 2021, B301904) 

[nonpub. opn.] (Pugh), which in turn relied on the statement of 

facts in People v. Johnson et al. (June 14, 2001, B129670) 

[nonpub. opn.] (Johnson). By relying exclusively on the factual 

background in our prior appellate opinion and failing to 

summarize the evidence before the resentencing court, Johnson

has forfeited any objection to inadmissibility of the evidence 

described in the prior opinion. (See People v. Vance (2023) 

94 Cal.App.5th 706, 713.) 
3

The 118 East Coast Crips use certain insults to intimidate 

Bloods. . . .

“ ‘In 1996 and 1997, there had been persistent problems 

between the 118 East Coast Crips and Bloods who rode the 

number 53 MTA bus that passed by Avalon Boulevard and 

Imperial Highway. Specifically, Bloods would display gang signs 

while passing through the Crips’ territory. The 118 East Coast 

Crips considered this disrespectful. . . .

“ ‘[Robert] Johnson [Pugh’s confederate] is a member of the 

118 East Coast Crips. He is known as “Baby Kiko.” Defendant 

Pugh likewise is a member of this Crips gang. He is known as 

“Li’l Evil.” Defendant Pugh was the leader of the “little ones,” or 

very young gang members such as defendant Johnson.’ [Johnson, 

supra, B129670.] 

“On January 15, 1997[,] Pugh and Johnson ‘said it was 

disrespectful for Bloods to be coming through the neighborhood. 

They were annoyed at Bloods displaying gang signs and yelling 

out the bus windows as they passed through the neighborhood. 

Defendants Pugh and Johnson discussed getting on the bus the 

next time Bloods were aboard, going to the back, beating up 

Bloods, then getting off at the next stop. They picked Thursday, 

January 16, as a good day for the attack. . . .’ (Johnson, supra, 

B129670.) 

“On January 16, 1997, Pugh said, ‘ “Y’all ready?” ’ and 

boarded the bus with Johnson and Randall Amado. (Johnson, 

supra, B129670.) Amado had a handgun. (Ibid.) Pugh ‘led the 

group across the street’ to the bus. (Ibid.) Pugh boarded the bus 

and he and his confederates ‘identified themselves as 118 East 

Coast Crips, then demeaned Bloods with epithets. At least one of 

them shouted, “Shoot this . . . bus up[.]” ’ (Ibid.)
4

“Johnson used a pistol to shoot two victims, one of whom 

died as a result of a gunshot wound to the neck. (Johnson, supra, 

B129670.) After the shooting, the ‘Crips ran’ away and were 

heard ‘laughing about the shooting. They said they heard they 

had shot a girl.’ (Ibid.)” (Pugh, supra, B301904, italics added.) 

“In a pretrial interview, Johnson told police that he, Pugh, 

and others gathered. (Johnson, supra, B129670.) ‘ “Everyone 

was talking about getting the Bloods who ride the bus.” The plan 

was to drag some Bloods off of the bus, after which they would 

“torture them and kill them.” He [Johnson] started to get on the 

bus but another gang member pulled him off. Defendant Johnson 

walked to the rear of the bus. He pointed a .40 caliber Glock at 

the rear window. Everyone was yelling at him to shoot. He put 

the gun into the rear window next to the rear door, then fired 

four times. . . . He was shooting at two Bloods at the rear of the 

bus.’ (Ibid.)

“In a pretrial written statement, Pugh stated that he ‘was 

waiting at the bus stop at Imperial Highway and Avalon 

Boulevard with his girlfriend, Natasha Barnes (Barnes). He 

intended to take Barnes to his grandmother’s house . . . . 

Defendant Pugh identified himself as an East Coast Crip. He 

was dressed in blue as he waited at the bus stop. There just 

happened to be eight East Coast Crips at the bus stop that day. 

When the bus stopped, a woman got on, followed by Barnes and 

defendant Pugh. As he was about to pay his fare, defendant 

Johnson went to the back of the bus, where approximately 

10 Bounty Hunter Bloods were seated. After an exchange of 

words, defendant Johnson got off the bus.’ (Johnson, supra,

B129670.) Pugh ‘saw a hand holding a gun come through the 

back of the bus as the door closed and the bus began to pull away 
5

from the bus stop . . . . He heard approximately 12 shots.’ (Ibid.)” 

(Pugh, supra, B301904).) 

2. Procedural Background

Johnson was tried in a joint trial with Pugh and Amado, 

with one jury for Johnson and the other for Pugh and Amado. 

Only Johnson’s jury heard Johnson’s pretrial admission that he 

was the shooter. The court instructed the juries together. 

Johnson’s counsel’s argued that although “Mr. Johnson 

acknowledged his guilt for the crimes,” Amado “was the killer in 

this case.” Johnson’s counsel further argued, “[W]e know that 

Mr. Johnson was not the shooter. And we know that it’s probable 

that Mr. Amado is the shooter.” 

a. Instructions

The instruction on natural and probable consequences 

identified the target crime of assault with a firearm and 

potentially permitted an aider and abettor in an assault with a 

firearm to be convicted of murder.3 The natural and probable 

3 The natural and probable consequence instruction 

provided: “One who aids and abets [another] in the commission 

of a crime [or crimes] is not only guilty of [those crimes], but is 

also guilty of any other crime committed by a principal which is a 

natural and probable consequence of the crime[s] originally aided 

and abetted. 

“In order to find a defendant guilty of the crime[s] of 

murder, assault with a firearm & shooting into an occupied 

vehicle . . . you must be satisfied beyond a reasonable doubt that:

“1. The crime of assault or assault with firearm was 

committed;
6

consequence instruction did not include attempted murder. A 

conspiracy instruction incorporated natural and probable 

consequence doctrine, but applied that doctrine only to assault 

with a firearm and shooting at an occupied vehicle, not murder or 

attempted murder. 

The court instructed the juries on deliberate and 

premeditated murder and that instruction required “express 

malice aforethought.” The final portion of the instruction 

provided: “To constitute a deliberate and premediated killing, 

the slayer must weigh and consider the question of killing and 

the reasons for and against such a choice and, having in mind the 

consequences, [he] decides to and does kill.” 

With respect to murder, the court instructed the juries on 

transferred intent: “[O]ne attempts to kill a certain person, but 

“2. That the defendant aided and abetted that crime;

“3. That a co-principal in that crime committed the 

crime[s] of murder and assault with a firearm; and

“4. The crime[s] of murder and assault with a firearm 

[were] a natural and probable consequence of the 

commission of the crime[s] of assault or assault with a 

firearm. 

“[You are not required to unanimously agree as to which 

originally contemplated crime the defendant aided and abetted, 

so long as you are satisfied beyond a reasonable doubt and 

unanimously agree that the defendant aided and abetted the 

commission of an identified and defined target crime and that the 

crimes of murder and assault with a firearm & shooting into an 

occupied vehicle was a natural and probable consequence of the 

commission of that target crime.]”
7

by mistake or inadvertence kills a different person, the crime, if 

any, so committed is the same as though the person originally 

intended to be killed, had been killed.” 

The court also instructed the juries on aiding and abetting 

as follows: “A person aids and abets the [commission] [or] 

[attempted 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 or encouraging or 

facilitating the commission of the crime, and [¶] (3) by act or 

advice aids, promotes, encourages or instigates the commission of 

the crime.” 

The court instructed the juries that to convict for attempted 

murder, it had to find that the defendant harbored “express 

malice aforethought, namely, a specific intent to kill unlawfully 

another human being.” The court further instructed on the 

definition of willful, deliberate, and premeditated attempted 

murder: “To constitute willful, deliberate, and premeditated 

attempted murder, the would-be slayer must weigh and consider 

the question of killing and the reasons for and against such a 

choice and, having in mind the consequences, decides to kill and 

makes a direct but ineffectual act to kill another human being. 

[¶] The People have the burden of proving the truth of this 

allegation. If you have a reasonable doubt that it is true, you 

must find it to be not true.”

Although the court instructed the juries on second degree 

felony murder, neither jury found Johnson or his confederates 

guilty of second degree murder. 

As to the firearm allegation, the trial court instructed the 

juries that it was alleged Johnson personally used and personally 

discharged a firearm at an occupied motor vehicle in the 
8

commission of the murder and attempted murder. The court 

further instructed the jury that if it found Johnson guilty of one 

or more charged crimes it had to determine whether he 

personally used and personally discharged a firearm at an 

occupied vehicle in the commission of the crimes.

b. Verdict

We focus on those aspects of the verdict relevant to 

Johnson’s resentencing petition.

The Johnson jury convicted him of the first degree murder 

of Corie Williams. The jury further found a principal was armed 

with a handgun and Johnson personally used a handgun. The 

jury found that, in the commission of the murder, Johnson

discharged a firearm at an occupied motor vehicle. The jury also 

convicted Johnson of the attempted murder of Tyrone Lewis and 

found that the attempted murder was committed willfully, 

deliberately, and with premeditation. The jury further found 

that a principal was armed with a handgun and Johnson 

personally used a handgun in the commission of the attempted 

murder. In addition, the jury found Johnson discharged a 

firearm at an occupied vehicle.4

For the murder, the trial court sentenced Johnson to an 

indeterminate 25-year-to-life term and a determinate six-year 

term for one of the firearm enhancements. For the attempted 

murder, the court sentenced Johnson to a concurrent sentence of 

4 The jury also convicted Johnson of assault with a firearm 

on Tammy Freeman, another passenger on the bus with Williams 

and Lewis, and found Johnson personally used a firearm, 

personally discharged a firearm at an occupied vehicle, and 

personally inflicted great bodily injury on Freeman. Finally, the

jury convicted Johnson of shooting at an occupied vehicle.
9

life with the possibility of parole. The court sentenced Johnson to 

an additional four year determinate term for the assault with a 

firearm and shooting at an inhabited dwelling. The court stayed 

the sentence on the firearm enhancements for each offense other 

than the six-year term for the murder. 

On June 20, 2022, Johnson petitioned for resentencing. 

The court appointed counsel and counsel argued Johnson “met 

his burden of establishing a prima facie showing that he is 

entitled to relief.” After a hearing, the court denied the petition, 

finding Johnson ineligible for resentencing as a matter of law. 

The court stated that “it was the petitioner Mr. Johnson that took 

a handgun and fired it into the rear window of the bus . . . .” 

DISCUSSION

Johnson argues the resentencing court erred in finding that 

he was ineligible for resentencing because the record neither 

shows as a matter of law that he was the actual killer nor that he 

acted with malice aforethought. 

A. Legal Resentencing Principles

Prior to 2019, a jury could convict a defendant of murder 

under the felony-murder rule and natural and probable 

consequences doctrine without finding malice. Under the felonymurder rule as it existed before 2019, malice was imputed if the 

defendant intended to commit the underlying qualifying felony. 

(People v. Chun (2009) 45 Cal.4th 1172, 1184 [“ ‘The felonymurder rule imputes the requisite malice for a murder conviction 

to those who commit a homicide during the perpetration of a 

felony inherently dangerous to human life.’ ”].) Under the 

natural and probable consequences doctrine, as it existed before 

2019, an aider and abettor could be held liable for any offense 
10

that was the natural and probable consequence of the crime aided 

and abetted. (People v. Chiu (2014) 59 Cal.4th 155, 158 

[describing former law].) 

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

Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2–4) modified the law 

relating to accomplice liability for murder, eliminating the 

natural and probable consequences doctrine as a murder theory 

(People v. Gentile (2020) 10 Cal.5th 830, 842–843) and more 

narrowly defining felony murder. (People v. Strong (2022) 

13 Cal.5th 698, 703 (Strong); §§ 188, subd. (a)(3), 189, 

subd. (e)(3)). Senate Bill No. 1437 also added former 

section 1170.95 providing the procedure for a defendant convicted 

of felony murder or murder based on the natural and probable 

consequences doctrine to request resentencing relief. (Gentile, at 

p. 843.) 

Effective January 1, 2022, Senate Bill No. 775 (2021–2022 

Reg. Sess.) (Stats. 2021, ch. 551, § 2) amended section 1170.95. 

In addition to convictions based on the natural consequences and 

felony murder doctrines, persons convicted on a “theory under 

which malice is imputed to a person based solely on that person’s 

participation in a crime” are eligible for resentencing relief. 

(§ 1172.6, subd. (a); see also former § 1170.95, subd. (a).) The bill 

clarified that persons convicted of attempted murder or 

manslaughter also may petition for resentencing. (People v. 

Whitson (2022) 79 Cal.App.5th 22, 30.) It further clarified that 

the burden of proof applicable in the evidentiary hearing is 

beyond a reasonable doubt. (People v. Owens (2022) 

78 Cal.App.5th 1015, 1020–1021.) The Legislature then 

renumbered former section 1170.95 to section 1172.6 without 
11

substantive change. (Strong, supra, 13 Cal.5th at p. 708, fn. 2, 

citing Stats. 2022, ch. 58, § 10.) 

Section 1172.6 describes a multipart process for 

resentencing petitions. The first step is making a prima facie 

case for relief. “When the trial court receives a petition 

containing the necessary declaration and other required 

information, the court must evaluate the petition ‘to determine 

whether the petitioner has made a prima facie case for relief.’ 

[Citation.] If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the trial 

court may dismiss the petition.” (Strong, supra, 13 Cal.5th at 

p. 708.) When evaluating a petition, the resentencing court may 

consider the record of conviction. (People v. Lewis (2021) 

11 Cal.5th 952, 972.) “ ‘[A] court should not reject the petitioner’s 

factual allegations on credibility grounds without first conducting 

an evidentiary hearing.’ [Citation.] ‘However, if the record, 

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.” ’ 

[Citation.]” (Lewis, at p. 971.) 

In People v. Curiel (2023) 15 Cal.5th 433, our Supreme 

Court held that “a petitioner who alleges that he or she could not 

currently be convicted of a homicide offense ‘because of changes 

to Section 188 or 189 made effective January 1, 2019’ (§ 1172.6, 

subd. (a)(3)) puts at issue all elements of the offense under a valid 

theory.” (Curiel, at p. 462.) The allegation “is not refuted by the 

record unless the record conclusively establishes every element of 

the offense. If only one element of the offense is established by 

the record, the petitioner could still be correct that he or she 
12

could not currently be convicted of the relevant offense based on 

the absence of other elements.” (Id. at p. 463.)5 

B. Johnson Is Ineligible for Resentencing

On appeal, Johnson’s principal argument is that “nothing 

in appellant’s record of conviction shows as a matter of law that 

appellant was the actual killer.” Johnson’s argument contradicts 

his statement of facts on appeal, which includes his admission 

that he “used a pistol to shoot two victims, one of whom died as a 

result of a gunshot wound to the neck.” (Artal v. Allen (2003)

111 Cal.App.4th 273, 275, fn. 2 [noting that a statement in a brief 

may be deemed an admission of fact or law against the party 

making it].) 

Johnson’s argument is also inconsistent with the record of 

conviction, which demonstrates Johnson was the only person who 

discharged a firearm during the commission of the murder and 

attempted murder. Reaffirming this conclusion is the Johnson 

jury’s finding that he discharged a firearm at an occupied vehicle, 

the only such vehicle being the bus in which the victims were 

riding. Put simply, Johnson’s jury necessarily rejected the 

argument of Johnson’s trial counsel that Amado, rather than 

Johnson, was the shooter. In his reply brief on appeal, Johnson

asserts, “[T]he jury could . . . have decided that an accomplice 

may have shot and killed the murder victim . . . .” There are 

5 We asked the parties for supplemental briefs to address 

what impact, if any, Curiel has on the issues in this appeal. 

Johnson responded that Curiel shows “discerning care must be 

taken . . . in assessing whether any of the jury’s verdicts or 

findings show as a matter of law that appellant was the actual 

killer . . . .”
13

two problems with this argument. First, it is bereft of citation to 

the record. Second, Johnson’s contention conflicts with his 

admission in his statement of facts and his jury’s findings that he 

was the person who discharged a firearm during both the murder 

and attempted murder. 

Johnson next argues that standing alone, the firearm 

enhancement does not show malice aforethought. We agree with 

that statement as a general principle. (People v. Offley (2020) 

48 Cal.App.5th 588, 598.) In this case, however, additional 

information in the record of conviction shows the jury “must have 

convicted the defendant on the basis of his own malice 

aforethought.” (Id. at p. 599.) 

Given the trial court’s instructions on attempted murder 

and willful, deliberate, and premediated attempted murder, the

jury could not have found him guilty of attempted murder 

without also finding he intended to kill. To reiterate, the trial 

court instructed the jury that a necessary element of attempted 

murder is that “[t]he person committing the act harbored express 

malice aforethought, namely, a specific intent to kill unlawfully 

another human being.” (See p. 7, ante.) Also, in accordance with 

the trial court’s instructions, by finding the attempted murder 

willful, deliberate, and premediated, the jury reaffirmed that 

Johnson weighed the killing and decided to kill another human 

being. (See ibid.) 

With respect to the murder, the jury necessarily found 

Johnson harbored intent to kill when it convicted him of first 

degree murder rather than second degree murder. The first 

degree murder instruction included that “[t]o constitute a 

deliberate and premeditated killing, the slayer must weigh and 

consider the question of killing and the reasons for and against 
14

such a choice and, having in mind the consequences, [he] decides 

to and does kill.”6 His conviction of first degree murder belies his 

counsel’s argument that the record of conviction fails to 

demonstrate he harbored malice aforethought. 

Johnson acknowledges on appeal, that if he “was the sole 

shooter, acting with express malice, as the prosecution asserted 

in closing argument, then he would of course be ineligible for 

relief.” (See People v. Garrison (2021) 73 Cal.App.5th 735, 743–

744 [actual killer ineligible for resentencing].) The finding in a 

joint trial that Johnson was the only person who discharged a 

firearm in connection with the murder and attempted murder 

shows he was the actual killer. Further it shows Johnson’s jury 

necessarily rejected Johnson’s alternate theory that Amado was 

the shooter. The instructions combined with the verdict 

demonstrate as a matter of law, that Johnson acted with express 

malice, i.e. intent to kill when he premeditated the murder and 

the attempted murder. As a matter of law, Johnson is thus 

ineligible for resentencing. 

6 See page 6, ante. 
15

DISPOSITION

The order denying Robert Johnson’s resentencing petition 

is affirmed. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.