1

Filed 11/17/22 P. v. Johnson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN JOHNSON,

Defendant and Appellant.

 A162177

 (Alameda County

 Super. Ct. No. 170674)

In 2014, defendant Jonathan Johnson entered a no contest plea to 

second degree murder and admitted an enhancement allegation of personal 

use of a firearm. In 2019, defendant petitioned for resentencing under former

Penal Code section 1170.95 (now § 1172.6).

1 After an evidentiary hearing, 

the trial court denied the petition, finding the prosecution proved beyond a 

reasonable doubt that defendant was not entitled to relief because he was the 

actual killer. 

Defendant appeals from the order denying his petition, raising claims 

of evidentiary error. He also contends the prosecution failed to present 

1 The Legislature renumbered Penal Code section 1170.95 as section 

1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 

58, § 10; People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) Further 

undesignated statutory references are to the Penal Code. 
2

sufficient admissible evidence to support a finding that he was the actual 

killer. 

After the trial court denied defendant’s petition, the Legislature 

amended the law governing evidentiary hearings. (Stats. 2021, ch. 551, § 2; 

see People v. Basler (2022) 80 Cal.App.5th 46, 55–56 (Basler) [describing 

changes to former section 1170.95].) The parties do not dispute that the new 

law applies retroactively to defendant’s case and that the trial court here 

considered hearsay evidence—including the out-of-court statements of 

nontestifying coparticipants identifying defendant as the shooter—that would 

not be admissible under the new law. We conclude the trial court’s 

consideration of this hearsay evidence was prejudicial and, therefore, reverse 

the order denying the petition. But we reject defendant’s claim that, putting 

aside the nontestifying coparticipants’ hearsay statements, the record lacks 

sufficient evidence as a matter of law to support a finding he was the actual 

killer. Accordingly, we will remand the matter for the trial court to conduct 

another evidentiary hearing in accordance with the evidentiary standards of 

section 1172.6. 

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Murder Conviction

The Shooting

On May 20, 2011, defendant, then 17 years old, and three other 

teenagers were walking around the Fruitvale neighborhood of Oakland

looking for someone wearing a gold chain, so they could steal it. The group 

spotted Antonio Torres wearing a gold chain; he was working as a gardener

in the front yard of a residence. Torres died from a gunshot wound. 
3

Defendant’s Statements to the Police

On August 29, 2011, defendant was interviewed by the police.2 He 

admitted he was present at the shooting of Torres. He identified his 

companions that day as David Hall, James Allen, and Y.W.

3 Defendant said 

Y.W. had a revolver, and the plan was that Y.W. would snatch the gold 

necklace. Defendant told the police that Allen and Y.W. went through a gate 

to enter a yard and steal the victim’s necklace while he and Hall remained 

outside the gate. He said Allen snatched the chain and then the victim 

started coming after Y.W., who got stuck in the gate. According to defendant, 

the victim was about to hit Y.W., but Y.W. “did something to him,” and “[a]ll 

[defendant] heard was, ‘pow, pow, pow.’ ” 

Police Report

Oakland Police Sergeant Mike Gantt documented his investigation of 

the Torres shooting in a report dated October 13, 2011. Gantt reported the 

following facts. 

On May 24, 2011, Gantt received information that defendant told his 

ex-girlfriend he did the shooting. On August 29, Gantt interviewed 

defendant at the police department. Defendant said he used to hang out with 

Hall, Allen, Y.W., and “Gregory,” but he did not hang out with that group 

2 The following is based on a transcript of the interview included in the

appellate record; the transcription begins at some point after the interview 

started. The appellate record also includes a police report (summarized 

below) that describes statements by defendant not reflected in the interview 

transcript. 

3 At the time, Hall was 19 years old, and Allen and Y.W. were minors. 

Allen later entered a plea of no contest to voluntary manslaughter for his 

part in the killing and was sentenced to 12 years in state prison. Y.W. was 

found guilty of murder in juvenile court and committed to the Department of 

Juvenile Justice. 
4

anymore because they “ ‘rob houses and beat on people.’ ” Defendant 

reported that, a few months earlier, he saw Hall, Allen and Y.W. running 

down the street and they told him “they just ‘hit someone’ for a gold chain on 

34th Avenue.” Gantt showed defendant surveillance video taken on 34th 

Avenue the day Torres was killed. Defendant identified the first male who 

ran by as Hall, followed by Allen, himself and, last, Y.W. He said Y.W. had a 

gun. Defendant “stated that he was like a lookout while [Allen] and [Y.W.] 

walked into the front yard” of the residence where Torres was shot. 

Defendant told Gantt that “a guy he knows as Gregory” said he drove by after 

the robbery and took the victim’s iPod. Defendant was taken into custody. 

On September 7, 2011, Allen and Y.W. were arrested, and Gantt 

interviewed each of them early the next day. Allen stated that, in May, he 

was with Y.W., defendant, and Hall at the Fruitvale BART station. 

Defendant had a black revolver and said they could rob somebody. They saw 

the victim doing gardening; he was wearing a gold chain, and he had an 

iPhone and was wearing earplugs. Allen told Gantt that defendant “asked, 

‘Y’all want to get him?’ ” Defendant entered the yard first. Allen walked up 

behind the victim and snatched the chain off his neck. Allen reported that 

the victim “came at [defendant] with some bolt cutters and [defendant] shot 

him.” 

In a separate interview, Y.W. admitted he was with Allen, defendant, 

and Hall, and they robbed a Hispanic man. Y.W. said the victim turned 

around and he had big scissors; defendant tried to run, but his jacket got 

caught in the gate, and defendant shot the victim. Y.W. said defendant gave 

him the gun as they ran away and Y.W. threw it in some bushes. 

On September 8, Hall was arrested, and Gantt interviewed him. Hall 

told Gantt that, on the day of the shooting, he was walking with Allen, 
5

defendant, and Y.W. Y.W. “said they wanted to rob a Mexican guy the[y] saw 

for his gold chain.” Hall reported that he said no and started walking away. 

Seconds later, he heard gunshots. He said defendant had a revolver and told 

him the victim “was coming at him with some gardening tools and ‘it was 

either him or me.’ ” 

Charges and Preliminary Hearing

Defendant was charged with the murder of Torres (§ 187, subd. (a)) 

with the special circumstance allegation that Torres was killed in the 

commission of a robbery (§ 190.2, subd. (a)(17)(A)). It was further alleged 

that defendant personally used a firearm (§§ 12022.53, subd. (b); 12022.5, 

subd. (a)) and discharged a firearm (§ 12022.53, subd. (c)), causing great 

bodily injury and death (§§ 12022.53, subd. (d); 12022.7, subd. (a)). 

At the preliminary hearing, coparticipant David Hall was the only 

witness. He testified that he made a deal with the District Attorney’s Office 

to testify in exchange for probation and up to a year in county jail. Without 

the plea bargain, Hall understood he faced a charge of murder and a possible 

sentence of 25 years to life in prison. 

Hall testified that, on May 20, 2011, Hall was with defendant, Allen, 

and Y.W.

4 Defendant had a revolver that day; he lifted his shirt up to show 

Hall the gun. Defendant was “talking about hitting a lick,” which Hall 

understood to mean robbing someone. Allen and Y.W. also talked about 

robbing someone. The group took a bus to the Fruitvale BART station and 

walked toward East 34th Avenue. Allen said something about “looking for 

Mexicans with gold chains.” Hall understood the plan was to take the gold 

chains to a pawn shop. 

4 Hall identified defendant as his friend, Allen as his brother, and Y.W.

as someone who “just came with my brother.” 
6

Hall testified that, as the group walked on East 34th Avenue toward 

Foothill, he noticed a man working on his garden who had an iPod and a gold 

chain. Defendant pointed the man out. According to Hall, there was no 

discussion about what would happen; no one said who was going to take the 

chain or who would be the lookout. Allen, Y.W., and defendant all entered 

the front yard through a gate, and Hall remained on the sidewalk. Allen 

“went and snatched . . . the chain.” Hall did not see the shooting, but he 

heard two or more gunshots and started running. Everyone ran, and they 

ended up at the house of a friend of Hall’s a few blocks away. At the house, 

Allen showed Hall the gold chain, and defendant described what happened. 

Hall testified, “[Defendant] said his sweater got stuck, and the guy was going 

to throw a garden tool at him. [‘]So it was either him or me.[’]” Hall testified

defendant “said he had shot him or something like that.” 

On cross-examination, Hall testified he did not see defendant go in the 

gate; that was just what defendant told him later.5 Hall testified the victim 

was facing the trees, and Allen grabbed the chain from behind, so it did not 

appear the victim knew that Allen was behind him. Hall did not see the 

victim turn around after Allen snatched the chain. He saw Allen run from

the front yard through the gate, but he did not see Y.W. come out of the gate. 

Hall started running when he heard the gunshots, and he was ahead of his 

three companions. When they reached his friend’s house, Hall did not see the 

gun, and he did not know what happened to it. Surveillance footage recorded 

5 On redirect, however, Hall testified he saw defendant “inside the 

fence” slightly more than an arm’s length away from the victim. 
7

near the crime scene showed the four teenagers running.6 Hall identified 

himself as the first person to run by, but he could not identify the order of the 

others. 

Defense counsel stipulated that Torres died on May 20, 2011, of one or 

more gunshot wounds. Defense counsel also noted in his argument that 

Torres was shot in the back. 

Defendant was held to answer on the murder charge with the robbery 

felony-murder special circumstance and firearm enhancement allegations. 

Plea and Sentence

In April 2014, the defendant reached a negotiated disposition and

entered a plea of no contest to second degree murder and admitted personal 

use of a firearm under section 12022.5, subdivision (a). Defense counsel 

stipulated to a factual basis for the plea based on the police report. The trial 

court accepted defendant’s plea and admission; the court found a factual 

basis for the plea citing the police report, documents in the file, and the 

preliminary hearing. 

Pursuant to the plea agreement, defendant was sentenced to 19 years 

to life in prison (15 years to life for the murder conviction, plus four years for 

the firearm enhancement). 

Petition For Resentencing 

Petition and Briefing

In June 2019, defendant filed a petition for resentencing under former 

section 1170.95. In October 2020, the trial court found defendant made a 

6 Hall testified that the surveillance video was taken around two blocks 

from where they saw the victim. Other evidence shows the video was 

recorded perhaps a block’s length or less from where Torres was killed. 
8

prima facie case, and counsel agreed to scheduling the evidentiary hearing 

beyond the 60-day time limit. 

The parties’ briefing on the petition included extensive exhibits. 

Defendant submitted Hall’s plea agreement, excerpts of defendant’s August 

2011 interview with the police, Hall’s juvenile court records, Allen’s juvenile 

court records, an aerial photograph of the crime scene neighborhood and still 

photographs of surveillance video taken near the shooting, and his own 

mental health and school records. The prosecution submitted Gantt’s police 

report from October 2011, the preliminary hearing transcript, and the 

probation report prepared for defendant’s sentencing. Defendant also 

submitted a declaration from his prior defense counsel, who represented 

defendant at the time he reached a plea agreement with the district attorney 

in April 2014.7 

Evidentiary Hearing

At the hearing to determine whether defendant was entitled to relief, 

the prosecution had the burden to prove, beyond a reasonable doubt, that 

7 Defendant’s prior defense counsel stated that, by defendant’s 

admission that he acted as lookout in the robbery, he could have been

convicted of first degree murder under a robbery felony murder theory as an 

aider and abettor and therefore faced a prison term of 25 years to life. (And 

defendant faced additional exposure if he were found guilty of the discharge 

of a firearm and robbery felony murder special circumstance allegations.) 

Originally, the district attorney offered a plea to first degree murder and a 

sentence of 25 years to life in exchange for dismissal of the enhancement 

allegations; prior defense counsel countered that defendant would plead to 

second degree murder and 15 years to life; the prosecutor “wanted something 

in between” and offered second degree murder plus a firearm enhancement 

for a prison term of 19 years to life. Prior defense counsel stated that he 

advised defendant to accept the offer because defendant would “obtain[] a 

sentence with a parole eligibility date 6 years sooner than what he was facing 

as an aider and abettor.” 
9

defendant was ineligible for resentencing because he was guilty of murder 

under current law. (§ 1172.6, subd. (d)(3); see former § 1170.95, subd. (d)(3), 

added by Stats. 2018, ch. 1015, § 4.)

The evidentiary hearing was held February 4, 2021. The parties 

agreed the court could decide the matter based on the exhibits attached to the 

briefing, with minor exceptions.8 In addition, the trial court noted it 

“reviewed the Court’s own file, and in particular the thing that caught my 

attention was the sentencing transcript in Mr. Johnson’s case from May 21st 

of 2014.” 

The prosecutor argued defendant was ineligible for resentencing 

because he was the actual killer. He said the evidence showed “three fairly 

consistent stories” from Hall, Allen, and Y.W, who all “put the gun . . . in Mr. 

Johnson’s hand,” and “one barely inconsistent story.” 

Defense counsel argued there was insufficient evidence to establish 

defendant was the shooter beyond a reasonable doubt. He stated Hall was 

untrustworthy because he was only willing to cooperate with the prosecution 

8 At the start of the hearing, the trial court stated its understanding 

was that the parties “agreed to submit . . . for the evidentiary showing in this 

hearing” “all exhibits that were attached to all of [the] briefing.” Defense 

counsel responded that there was no agreement the probation report could be 

considered, noting it contained details “that I’m not sure where they came 

from.” Defense counsel also stated that counsel had agreed the reference in 

the police report to “a rumor about what Mr. Johnson may have said to a 

girlfriend about this incident” was “not admissible and should not be 

considered by the Court.” The court said it would “set that aside,” referring 

to the alleged statement defendant made to his ex-girlfriend. The court also 

said it did not read the facts of the offense summarized in the probation 

report, as it had already read about the incident “in several other places.” 

The prosecutor objected to the declaration from prior defense counsel 

discussing the negotiation of the plea agreement. He argued it was 

irrelevant, but the court found some relevance and admitted the declaration. 
10

“in return for a very sweet agreement” under which he was convicted of being 

an accessory after the fact. He suggested Hall, Allen, and Y.W. may all have 

decided to tell the police defendant was the shooter (instead of Y.W. as 

defendant claimed) in retaliation for defendant identifying them to the police. 

Defense counsel also argued the surveillance video taken a block away from 

the shooting showed Y.W. was the last person running from the scene and it 

was “logical to assume from the account we are all given, that the last person 

to leave the yard through the gate was the shooter.” 

Trial Court Ruling

The trial court denied the petition, finding the prosecution proved 

beyond a reasonable doubt that defendant was the actual killer and, 

therefore, was not entitled to relief. 

Explaining its decision, the court first observed, “there’s four people 

who are involved in this crime; three give a story that’s consistent when it 

comes to who the shooter is. One does not.” It acknowledged defense counsel 

made good points about Hall’s credibility issues, but it found “the 

impeachment as to Mr. Johnson is eve[n] stronger,” citing defendant’s 

shifting story to the police. The court found Hall’s testimony credible and it 

credited Allen’s and Y.W.’s statements to the police that defendant was the 

shooter. 

The court also relied on defendant’s change of plea and statement at 

sentencing. The court noted defendant “admitted the personal use of the 

firearm; and the only way that the firearm was used in this case, based on 

the evidence that I’ve seen, was to shoot and kill the victim.” The court 

continued, “[W]hen Mr. Johnson [wa]s given the opportunity to speak to the 

victim’s family [at sentencing], this is what he said: ‘If I could go back in 

time, I would because I made a bad decision. There’s not a day that goes by 
11

that I’m not haunted by that fateful evening on May 20th. I would like the 

Court and the Torres family to know it was never my intentions to hurt 

anybody. I do not have a murderous heart. I hope and pray that the Torres 

family will be confident. I know it is never easy to cope with when a loved 

one is gone, especially sooner than expected. I pray that you guys will hold 

up and be strong. And I know it has been really emotional on both sides, and 

in that, we all tend to make mistakes, some greater than others, but it is 

important that we learn from them and do things better. And mistakes, they 

affect not only you, but I’ve learned it also affects the people around you. I 

made a big mistake, one that is going to haunt me for the rest of my life. I’m 

going to continue to better myself from this experience, and I hope one day 

the Torres family can forgive me.’ ” 

The trial court explained, “[W]hen I read that statement to the family, I 

think it was very appropriate, very mature on Mr. Johnson’s part, but it 

clearly was an acceptance of responsibility for the murder, in my view. It’s 

not the statement someone would make who simply hung outside and whose 

only involvement was to alert the others that the police were coming if he 

saw them. That’s the statement of a person who feels deeply and truly and 

sincerely sorry that he killed somebody, and it’s consistent with his no 

contest plea to second-degree murder. It’s consistent with his admission of 

personal use of a firearm in this event. It’s consistent with the statements of 

the other three people. In short, it’s consistent with almost all of the evidence 

in the case.” 

DISCUSSION

Defendant contends (1) his plea was not an admission he was the 

actual killer, (2) the trial court erred in relying on hearsay contained in the 

police report and probation report, (3) the trial court’s reliance on the 
12

coparticipants’ statements to police violated Crawford,

9 (4) the trial court 

denied defendant due process when it considered his statement at his 

sentencing hearing as evidence of guilt (when the parties had not referred to 

his statement in their arguments), and (5) there is insufficient admissible 

evidence in the record to support a finding that he was the actual killer. 

A. Defendant’s Admission of Use of a Firearm

In his opening brief, defendant asserts his plea to second degree 

murder with a firearm-use enhancement was not an admission that he was 

the actual killer. We have no quarrel with the proposition that admitting 

firearm use within the meaning of section 12022.5, subdivision (a), is not 

tantamount to admitting that one is an actual killer. But it does not appear

the trial court here treated defendant’s plea as an admission that he was the 

actual killer. After stating that it relied on the accounts of Hall, Allen, and 

Y.W. that defendant was the shooter, the court referred to defendant’s plea 

by observing, “[H]e admitted the personal use of the firearm; and the only 

way that the firearm was used in this case, based on the evidence that I’ve 

seen, was to shoot and kill the victim.” We do not understand this to mean

the court believed the plea established defendant admitted he was the actual 

killer.10 Rather, we agree with the Attorney General that the trial court’s 

9 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

10 If the trial court thought defendant previously admitted in court that 

he was the shooter, it undoubtedly would have led with that finding, but

instead the court began by highlighting the fact that, among the four 

teenaged boys present at the shooting, three identified defendant as the 

shooter and only one (defendant) identified another person as the shooter. 

(The court stated, “So to hit what I would describe to you as the highlighted 

points, there’s four people who are involved in this crime; three give a story 

that’s consistent when it comes to who the shooter is. One does not.”) Our 

conclusion that the trial court merely treated defendant’s firearm-use 

admission as “some evidence” (and not a definitive admission that he was the 
13

reasoning shows it considered the fact that defendant admitted a firearm-use 

enhancement as “simply some evidence” relevant to making its factual 

finding that defendant was the shooter. 

Defendant raises a slightly different argument in his reply brief,

claiming it was error for the trial court to consider his plea and firearm-use 

admission at all in deciding the petition. We do not address arguments 

raised for the first time in a reply brief, “absent a showing why the argument 

could not have been made earlier” (People v. Newton (2007) 155 Cal.App.4th 

1000, 1005), and defendant has not made such a showing. In any event, he

offers no authority for the proposition that in an evidentiary hearing to 

determine whether a petitioner is eligible for resentencing under section

1172.6, the trial court is prohibited from considering the fact the petitioner

admitted an enhancement allegation in the underlying criminal case. We 

therefore reject defendant’s first argument.

B. The Trial Court’s Consideration of the Police and Probation Reports

Defendant contends the trial court should not have considered hearsay 

evidence contained in the police report and probation report. The Attorney 

General argues the court’s consideration of inadmissible hearsay evidence 

was harmless. 

shooter) is further supported by the trial court’s evidentiary ruling that 

defendant’s prior counsel’s declaration was relevant as it related to 

defendant’s no contest plea and his admission of personal use of a firearm. 

(See fn. 7.) The declaration offered a reason defendant might have admitted

to the firearm enhancement even if he did not use a firearm during the 

robbery because the sentence agreed to was still lower than what he faced if 

convicted of first degree felony murder as a (non-shooting) aider and abettor. 
14

1. Subsequent Change to the Petitioning Procedure

When the evidentiary hearing was held in this case, former section 

1170.95, subdivision (d)(3) (former § 1170.95(d)(3)), allowed trial courts to

consider “the record of conviction” in deciding whether a petitioner was 

entitled to relief under the statute.

11 Regarding the procedural rules 

governing evidentiary hearings under former section 1170.95(d)(3), a Court of 

Appeal observed, “ ‘[T]he Legislature gave the superior court unfettered 

discretion to consider ‘evidence’ without any restriction at the subdivision 

(d)(3) hearing to determine the petitioner’s eligibility for resentencing.” 

(People v. Williams (2020) 57 Cal.App.5th 652, 661, italics added [holding 

that, under former section 1170.95(d)(3), a trial court was permitted to 

consider hearsay evidence so long as there was substantial basis for believing 

the hearsay information was reliable].)

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

Reg. Sess.) (S.B. 775) deleted reference to “the record of conviction,” and the 

following language was added: “The admission of evidence in the hearing 

shall be governed by the Evidence Code, except that the court may consider 

evidence previously admitted at any prior hearing or trial that is admissible 

under current law, including witness testimony, stipulated evidence, and 

matters judicially noticed.” (Former § 1170.95(d)(3), as amended by Stats.

2021, ch. 551, § 2, italics added.) 

11 From 2019 through 2021, former section 1170.95(d)(3) provided that, 

“[a]t the hearing to determine whether the petitioner is entitled to relief,” the 

parties “may rely on the record of conviction or offer new or additional 

evidence to meet their respective burdens.” (Former § 1170.95, subd. (d)(3), 

added by Stats. 2018, ch. 1015, § 4.)
15

The revisions to former section 1170.95 made by S.B. 775 apply 

retroactively to cases that are not yet final. (Basler, supra, 80 Cal.App.5th at 

p. 56.) 

2. Forfeiture

The Attorney General does not dispute that the new law applies

retroactively to defendant’s case, which is not yet final. But he argues

defendant forfeited any challenge to the trial court’s use of hearsay evidence 

described in the police and probation reports because defense counsel failed 

to object at the evidentiary hearing. We will not deem defendant’s contention 

forfeited, however, because the law on permissible evidence in an evidentiary 

hearing under section 1172.6 has changed since the evidentiary hearing in 

this case, and defense counsel could not have anticipated the change. (People 

v. Black (2007) 41 Cal.4th 799, 810 [“We long have applied the rule that 

although challenges to procedures or to the admission of evidence normally 

are forfeited unless timely raised in the trial court, ‘this is not so when the 

pertinent law later changed so unforeseeably that it is unreasonable to expect 

trial counsel to have anticipated the change’ ”].)12 

3. Prejudice

Defendant argues reversal and remand for a new evidentiary hearing is 

required because the trial court expressly relied on hearsay evidence that is 

now inadmissible (see § 1172.6, subd. (d)(3)). The Attorney General responds 

that any reliance by the trial court on inadmissible hearsay evidence—

including Allen’s and Y.W.’s statements to the police described in the police 

report—was harmless. The Attorney General argues there was 

12 Because we do not deem the issue forfeited, we need not consider 

defendant’s argument that any failure to preserve the issue for appeal was

the result of ineffective assistance of counsel. 
16

overwhelming evidence that defendant was the actual killer, citing (1) Hall’s 

preliminary hearing testimony that defendant showed him a gun before the 

robbery and defendant told him he shot the victim after the robbery; (2)

defendant’s admissions to the police that he and his companions discussed 

stealing a chain and that he acted as a lookout; and (3) defendant’s statement 

of regret at sentencing, which the trial court described as “the statement of a 

person who feels deeply and truly and sincerely sorry that he killed 

somebody.” 

We generally review claims of evidentiary error under the Watson

standard; thus, we ask whether it is reasonably probable the outcome would 

have been more favorable to the defendant absent the error. (People v. 

Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 

818, 836.) A reasonable probability “in this context does not mean more 

likely than not, but merely a reasonable chance, more than an abstract 

possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 

715.) It has been said that a reasonable probability is shown when an 

evidentiary error “ ‘undermines confidence in the outcome of the trial.’ ” 

(People v. Beck and Cruz (2019) 8 Cal.5th 548, 668.) Appellate review under 

Watson “focuses not on what a reasonable jury [or trial court acting as fact 

finder] could do, but what such a jury [or trial court] is likely to have done in 

the absence of the error under consideration. In making that evaluation, an 

appellate court may consider, among other things, whether the evidence 

supporting the existing judgment is so relatively strong, and the evidence 

supporting a different outcome is so comparatively weak, that there is no 

reasonable probability the error of which the defendant complains affected 

the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177.) 
17

Here, before the court heard argument at the evidentiary hearing, and 

in the course of discussing the scope of the evidence that would be considered 

at the hearing, the trial court stated that, as to “the factual aspects of the 

offense,” the items it had “relied on the most were” Hall’s preliminary 

hearing testimony, Gantt’s interview with defendant, and the police report 

summarizing what defendant, Hall, Allen, and Y.W. told the police. After 

hearing argument from the parties, and when the court announced its ruling, 

the first point it made was that four individuals were involved in the crime 

and three of them gave a consistent story about who the shooter was. The 

court recognized there were reasons to question Hall’s credibility but found 

there was “stronger” “impeachment” as to defendant. In weighing the 

competing credibility of Hall and defendant, the court noted, “There is also 

the matter of both James Allen and [Y.W.], also indicating that Mr. Johnson 

is the shooter.” 

We conclude there is a reasonable chance, more than an abstract 

possibility, that the outcome would have been more favorable to defendant

had the trial court not considered Allen’s and Y.W.’s inadmissible hearsay 

statements. Unquestionably, the trial court relied on their statements in 

reaching its finding that defendant was the shooter. Without their 

statements, it was Hall’s testimony against defendant’s statements to law 

enforcement. No physical or other witness evidence placed the gun with 

defendant. The trial court noted defense counsel “ma[d]e some certainly good 

points about [Hall’s] credibility issues,” but it found defendant less credible

because he lied to the police about his involvement in the robbery. That 

defendant initially lied to the police is certainly relevant to his credibility, but 

it does not necessarily show he was the shooter given that there were four 

individuals at the crime scene who could have been the shooter. And 
18

defendant’s apology at sentencing was not an express admission that he was 

the shooter and was viewed as inculpatory by the trial court in light of “the 

statements of the other three people.” (Italics added.) On this record, we 

think it is reasonably probable that Allen’s and Y.W.’s hearsay statements 

corroborating Hall’s testimony and expressly identifying defendant as the 

shooter could have been the evidence that tipped the scale for the trial court 

to credit Hall’s version of events over defendant’s and thus determine that 

defendant was the shooter beyond a reasonable doubt. It merits a remand for 

the trial court to determine whether defendant is entitled to relief under 

section 1172.6 in a new evidentiary hearing.13

13 The Attorney General also argues the trial court’s consideration of 

hearsay evidence was harmless because there was overwhelming admissible 

evidence that defendant was guilty of murder as a major participant in the 

underlying robbery who acted with reckless indifference to human life. (See 

Strong, supra, 13 Cal.5th at p. 708 [“Defendants who were neither actual 

killers nor acted with the intent to kill can be held liable for murder only if 

they were ‘major participant[s] in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) of [Penal 

Code] Section 190.2’ ”].) We reject this argument because the Attorney 

General cannot now rely on a theory of murder liability the prosecution did 

not argue below, and we do not address it on the merits. 

At the evidentiary hearing, defendant was entitled to resentencing 

unless the prosecution could prove to the trial court beyond a reasonable 

doubt that defendant is guilty of murder under current law. (§ 1172.6, subd. 

(d)(3); Strong, supra, 13 Cal.5th at p. 709.) The prosecution in this case never 

argued defendant was guilty of murder under the theory he was a major 

participant who acted with reckless indifference to human life, and the trial 

court did not find defendant guilty of murder under this theory. A 

determination by a reviewing court that there may be substantial evidence to 

support this theory of murder liability would not satisfy the statutory 

requirement of a finding of guilt beyond a reasonable doubt and, therefore, 

would not be sufficient to deny defendant’s petition. (See Strong, at p. 720 [“a 

court determination that substantial evidence supports a homicide conviction 

is not a basis for denying resentencing after an evidentiary hearing,” and an 
19

Accordingly, we reverse the order denying defendant’s petition and 

remand for a new evidentiary hearing at which the parties may present 

evidence in accordance with section 1172.6. (See People v. Cooper (2022) 77 

Cal.App.5th 393, 418 [where the trial court erred in the evidentiary hearing 

on a petition under former section 1170.95, the appellate court concluded it 

was “appropriate to remand the matter for a new hearing on whether [the 

petitioner] is entitled to relief”].) 

C. The Court’s Consideration of Defendant’s Sentencing Statement

Defendant also argues the trial court demonstrated bias or appearance 

of bias by considering defendant’s statement made at the sentencing hearing 

when the parties did not offer the statement as evidence or argue about its 

significance, and that the remedy for this alleged bias is remand to a 

different judge to conduct the new evidentiary hearing. We disagree with 

defendant’s claim that the trial court exhibited bias. It does not appear to us 

that the court departed from its role as neutral factfinder. The court did not 

“persist[] in making discourteous and disparaging remarks to a defendant’s 

counsel” (People v. Mahoney (1927) 201 Cal. 618, 627) or make remarks that 

“give the appearance the court held preconceived ideas” that raise doubts 

about the fairness and impartiality of the proceeding” (Hernandez v. Paicius

(2003) 109 Cal.App.4th 452, 455, disapproved of on another point by People v. 

Freeman (2010) 47 Cal.4th 993) as in the cases cited by defendant. Instead, it 

“after-the-fact” court review does “not involve a determination beyond a 

reasonable doubt”].) Consequently, the Attorney General’s claim for the first 

time on appeal that defendant could have been found guilty of murder under 

an unargued, alternative theory would not show harmlessness even if true. 
20

appears the court conducted the hearing under the law that it believed was 

applicable at the time.14

D. Sufficiency of the Evidence

Finally, defendant contends there is insufficient admissible evidence to 

support a finding he was the actual killer and, therefore, he is entitled to 

resentencing as a matter of law.

Defendant argues this court should conduct our review without giving 

deference to the trial court’s credibility findings because the court relied on 

documentary evidence and not live testimony. This argument was rejected 

by the Fourth District Court of Appeal in People v. Clements (2022) 75 

Cal.App.5th 276, 301. The Clements court reasoned that a ruling after an 

evidentiary hearing on a petition for resentencing is predominantly a factual 

determination, and where a determination is a question of fact, there is “ ‘no 

reason to withhold the deference generally afforded to such factual findings.’ ” 

(Ibid., quoting People v. Perez (2018) 4 Cal.5th 1055, 1066.) Division Four of 

our court recently followed Clements in People v. Sifuentes (2022) 83 

Cal.App.5th 217, 232-233.) We agree with Clements and Sifuentes and reject 

defendant’s argument. Accordingly, we review defendant’s claim under a

substantial evidence standard. (Clements, supra, 75 Cal.App.5th at p. 298 

[reviewing trial court’s ruling on a petition under former section 1170.95 by 

“ ‘ “examin[ing] the entire record in the light most favorable to the judgment 

to determine whether it contains substantial evidence—that is, evidence that 

is reasonable, credible, and of solid value that would support a rational trier 

of fact in finding [the defendant guilty] beyond a reasonable doubt” ’ ”].) 

14 Because we are reversing the court’s order, we need not consider 

defendant’s Crawford/Sixth Amendment and due process claims. 
21

In this case, defendant does not dispute that Hall’s preliminary hearing 

testimony is admissible evidence. Nor does he challenge the trial court’s 

consideration of his own statements to the police as reflected in the interview 

transcript he submitted in support of his petition. Defendant’s statements 

show he was with Hall, Allen, and Y.W. on the day of the killing and their 

plan was to steal a gold necklace. Hall’s testimony supports findings that 

defendant had a gun earlier that day, that he talked about robbing someone, 

and that he entered the front yard and was near the victim before the 

shooting. Hall’s testimony further establishes that defendant admitted he 

shot Torres soon after the killing. This is substantial evidence supporting a 

determination defendant was the actual killer. On remand, however, it will 

be up to the prosecution to prove beyond a reasonable doubt that defendant is

not entitled to relief under section 1172.6. 

DISPOSITION

The order of February 4, 2021, denying defendant’s petition for 

resentencing under former section 1170.95 is reversed. The matter is 

remanded for the trial court to conduct a new evidentiary hearing in 

accordance with section 1172.6. 
22

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, Acting P.J.

_________________________

Van Aken, J.*

A162177, People v. Johnson

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.