1

Filed 1/1 9 /22 P. v. Johnson CA1/1 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. JULIAN H. JOHNSON, Defendant and Appellant. A158366
(Contra Costa County Super. Ct. No. 51603604)

In our March 2021 opinion in this matter, we ruled that appellant Julian H. Johnson was ineligible for resentencing under the procedures set forth in Penal Code 1 section 1170.95 because he had been convicted of voluntary manslaughter and attempted murder , not murder

. ( People v.
Johnson ( Mar

. 30 , 20 21 , A 158366 ) [nonpub. opn.] ( Johnson I ) .) In
December 2021, o ur Supreme Court directed us to reconsider the cause in light of Senate Bill No. 775 ( 2020

– 2021 Reg. Sess. ) (Senate Bill 775) , which clarifie s that section 117 0 .95 does apply to persons convicted of voluntary manslaughter and attempted murder

. Both a ppellant and the Attorney General agree that this matter should
be remanded to the trial court for further consideration. We concur

.

1 All statutory references are to the Penal Code.2

Accordingly , w e vacate our prior opinion, reverse the order denying appellant’s resentencing petition, and remand the matter to the trial court
with directions.

FACTUAL AND PRO CEDURAL BACKGROUND
As we recounted in our prior opinion, “[o] n June 17, 2015, appellant drove Clydedale Hoskin and Miguel Gutierrez to a location in Antioch to acquire narcotics and commit a robbery. After appellant parked the car,
Hoskin and Gutierrez e xited the vehicle wearing masks and armed with guns and approached a group of people who were congregated outside. Appellant planned to join the two men but was delayed while he hid their cell phones
inside the car. Hoskin ordered everyone to the ground and shot into the group, hitting Shannah Tatum in her head and leg. A man in the group fired back and hit Hoskin, killing him. Gutierrez returned fire, killing a bystander named Adrian Craig. Gutierrez returned to the car alone and appellant drove away. ” ( Johnson I , supra , A 158366, fn. omitted.)
In 2016 , appellant and two codefendants were charged with two counts of murder (§ 187, subd. (a) ) , one count of attempted second degree robbery (§§ 664/211), and one count of attempted murder (§§ 664/187, subd. (a))

. Several enhancements were also alleged against appellant , including four
firearm use enhancements

. (§ 12022.5, subd

. (a)

. ) In 2018, appellant pleaded no contest to two counts of voluntary manslaughter (§ 192, subd. (a)) and to th e other two counts as charged, i.e., attempted murder and attempted robbery . He also admitted the firearm use enhancement allegations and two prior prison term enhancements

. (§ 667.5

. )
The trial court sentenced him to a determinate term of 20 years in s tate prison.3

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences doctrine

. . . to ensure that murder liability is not imposed on a person who is not th e actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) As part of th is legislation , the bill added sectio n 1170.95 to provide a procedure for those convicted of a qualifying offense to seek vacature of their conviction
and resentencing on any remaining counts

. ( See f ormer § 1170.95 , subd. ( a ).)
In 2019 , appellant filed a petition for resentencing pursuant to
section 1170.95. At that time, section 1170.95 expressly applied to persons “convicted of felony murder or murder under a natural and probable consequences theory .” (Former § 1170.95, subd. (a).) The trial court appointed counse l, received briefing, and then summarily denied the petition 

### on the ground that the statute did not apply to persons who pleaded guilty

to voluntary manslaughter and attempted murder as lesser offenses of
murder.
In March 2021, this court issued a nonpublished opinion affirming the trial court’s order denying appellant ’ s petition for resentencing. ( Johnson I,

supra , A158366 .) We held that persons convicted of voluntary manslaughter and attempted murder were in eligible fo r resentencing under
section 1170.95. ( Johnson I, supra , A158366

. ) The following month,

a ppellant filed a petition for review with the Supreme Court (S268537)

. While this matter was pending, the Legislature enacted Senate
Bill 775 , which amended section 1170.95 to clarify that persons convicted of manslaughter and attempted murder may be eligible for resentencing under
that section. As amended, s ection 1170.95 expressly applies to persons4

“ convicted of

. . . attempted murder under the natural and probable consequences doctrine, or manslaughter

. ” (§ 1170.95, subd. (a).) On December 29, 2021 , S268537 , the Supreme Court transferred appellant’s case back to this court with directions to vacate our prior decision
and reconsider the cau se in light of Senate Bill 775

. We received a supplemental brief from appellant arguing that the case must be remanded
to the trial court in light of the recent amendments to section 1170.95 that permit persons convicted of voluntary manslaughter and atte mpted murder to seek resentencing under this this law

. The Attorney General submitted a letter agreeing that appellant is entitled to a remand for further proceedings

. We agree with the parties and will remand the matter to the trial court with
directions. DISCUSSION Prior to the enactment of Senate Bill 775, California Courts of Appeal were uniform in concluding that persons who pleaded guilty to manslaughter or attempted murder as lesser offenses of murder were not eligible for resentencing un der section 1170.95. ( See , e.g., People v. Turner (2020)
45 Cal.App.5th 428, 43 5

– 436 .) On e of t he Legislature ’ s stated purpose s in enacting Senate Bill 775 was to clarify that section 1170.95 is applicable to manslaughter and attempted murder convictions

. ( See Stats. 2021, ch. 551, § 1, subd. (a) [“ [T] his legislation

. . . [ ¶] .

. . [c]larifies that persons who were convicted of attempted murder or manslaughter under a theory of felony
murder and the natural [ and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories” ]

. ) Senate Bill 775 was passed as nonurgency legislation during the regular session and became effective on January 1, 2022. (Cal. Const.,5

art. IV, § 8, subd. (c)(1); see People v. Camba (1996) 50 Cal.App.4th 857, 862.)
Because a ppellant’s appeal from the denial of his resentencing petition was not final by this date , and he is eligible to benefit from this remedial legislation. ( P

eople v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The amendments to section 1170.95 under Senate Bill 775 compel the
conclusion that a ppellant ’s resentencing petition is entitled to further
consideration under s ection 1170.95. On remand, the trial court must determine whether appellant has stated a prima facie case for relief under
section 1170.95

. (§ 1170.95, subd. ( c ).) If the court finds a prima facie case is
stated , it shall issue an order to show cause and hold a hearing “ to determine
whether to vacate the

. . . attempted murder, or manslaughter conviction [s]
and to recall the sentence and resentence [appellant] on any remaining counts in the same manner as if [he] had not previously been sentenced , provided that the new sentence, if any, is not greater than the initial

sentence. ” (§ 1170.95, subd. (d)(1). ) We express no opinion as to the appropriate outcome of any further proceedings. DISPOSITION The order denying appellant’s petition for resen tencing under
section 1170.95 is reversed. Upon remand, the superior court shall conduct further proceedings consistent with this opinion

.6 S ANCHEZ , J.

WE CONCUR:

H UMES , P. J.

B ANKE , J.

A 158366 People v. Johnson