Filed 6/24/26 P. v. Johnson CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B343580
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA437495)
v.
KEVIN DEON JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Reversed and
remanded with directions.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Lindsay
Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
In 2016, Kevin Johnson was convicted of first degree
murder based on the prosecution’s theory that he aided and
abetted Kanasho Johns, the shooter, by picking Johns up at
Johns’s apartment and driving him two blocks—about half of the
distance to the scene of the murder. Johnson was sentenced to 50
years to life in prison.
In 2024, Johnson petitioned for vacatur of his murder
conviction and resentencing pursuant to Penal Code1 section
1172.6 on the basis that the prosecutor’s closing argument
permitted the jury to impute malice to him. Following a prima
facie eligibility hearing, the trial court found Johnson ineligible
for relief as a matter of law because he was prosecuted as a direct
aider and abettor. The court expressly refused to consider the
reporter’s transcript of the prosecutor’s closing argument at trial.
On appeal, Johnson argues that the trial court erred by
refusing to consider the prosecutor’s closing argument, and that
he was prejudiced by the error. The People concede that the trial
court erred, but argue that the error was not prejudicial.
We reverse the trial court’s order and remand the matter
for the court to consider the record of conviction in its entirety.
1 All further statutory references are to the Penal Code.
2
FACTS2 AND PROCEDURAL HISORY
A. Trial
Johnson was tried with Johns. At trial, the prosecution
offered evidence that Johnson, Johns, and former codefendant
Dwight Smith were members of the Neighborhood Crips criminal
street gang, and that Johnson aided and abetted the murder for
the benefit of the gang. The prosecution’s theory was that Smith
identified the victim, Tavin Price, at a smoke shop where Smith
and Johnson had gone to purchase cigarettes. Smith “banged on”
Price in the smoke shop, issuing a gang challenge to him and
insisting that Price remove his red shoes, which were the
signature color of the rival Bloods gangs. Price walked out of the
smoke shop and went to the car wash next door, where he was
shot and killed by Johns about 10 minutes later.
Although the evidence at trial was that Johnson did not
participate in banging on Price, and, in fact, did not speak during
Smith’s interaction with Price, the prosecution theorized that
Johnson became involved after Price left the smoke shop.
Johnson spoke briefly to Smith, and then purportedly drove three
blocks to Johns’s apartment, picked Johns up, and drove Johns in
the direction of the smoke shop for two blocks. Johns then got
out of Johnson’s car, walked another block, crossed the street,
and shot and killed Price in the car wash bay next door to the
smoke shop.
2 We include a recitation of the facts to give context to the
prosecutor’s comments only. We do not weigh the facts or
determine credibility when reviewing an order finding a
petitioner prima facie ineligible for relief under section 1172.6.
3
The prosecutor elicited extensive testimony from the
investigating officer regarding the Neighborhood Crips and the
Rollin’ 60’s, a subset of the Neighborhood Crips to which Johnson
and Smith belonged. The expert testified regarding crimes the
Neighborhood Crips committed, including murder. Lay witnesses
also testified to crimes committed by the Neighborhood Crips.
Smith testified that he had been convicted of selling rock cocaine,
and that he sold marijuana in the smoke shop while the owner
was present. Johnson was recorded telling a confidential
informant that “they” (impliedly the Neighborhood Crips) had cut
video camera wires and disposed of evidence linked to the
murder. Price’s mother, Jennifer Rivers, who was present when
Price was shot, testified that immediately after the shooting
females at the smoke shop who associated with the Neighborhood
Crips threatened her, called her a snitch, and said they were
going to take video evidence of the murder from the smoke shop.
Rivers also testified that when she was leaving court some
females called her a snitch, and threatened to beat and kill her,
expressly invoking the Rollin’ 60’s. Latisha Poole, who had been
in the smoke shop when Smith banged on Price, testified that she
was threatened to be quiet while she was passing Johns’s holding
cell in the courthouse. Smith testified that Johns and 10 to 15
other men attacked and viciously beat him while he was in a
holding cell at court waiting to testify.
The evidence against Johns was overwhelming. Video
recordings that captured the minutes prior to the shooting
depicted Johns walking on 11th Avenue, crossing Florence
Avenue, going to the back bay of the car wash, and shooting
Price. Johns was positively identified by two eye witnesses who
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knew him personally. The evidence showed that Johns violated
parole and fled to Texas days after the murder.
The evidence against Johnson was primarily supplied by
the testimony of former codefendant Smith. Smith testified that
after Price walked out of the smoke shop and went to the car
wash next door, Johnson said that Price was a rival gang member
and that Johnson was going to get a gun. Smith claimed to have
seen Johns getting out of Johnson’s car at the corner of 71st
Street and 11th Avenue minutes before the murder. When
pressed, Smith testified that he saw Johnson’s car door open and
close. Smith testified that he pleaded with Johns not to kill
Price, but that Johnson encouraged Johns. Like Johnson and
Johns, Smith originally faced 50 years to life in prison. Smith
pleaded guilty to manslaughter and received a sentence of 12
years in prison.
As further evidence of Johnson’s role in the murder, the
prosecution presented a video recording of Johns walking on 11th
Avenue toward the murder scene and then fleeing the scene after
the shooting. The video showed Johnson’s car driving down 11th
Avenue and stopping at Florence Avenue approximately 22
seconds after Johns walked into the camera’s view. Johnson’s car
remained stopped at the intersection for approximately 40
seconds before turning right on Florence Avenue. Just before
Johnson’s car turned, Johns ran back into view, heading in the
direction from which he first appeared. Johns ran in front of
Johnson’s car and continued running up 11th Avenue. Johnson’s
car made a right turn onto Florence Avenue. There was no video
of Johns getting into or out of Johnson’s car, or of Johns sitting
inside Johnson’s car.
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In closing argument, the prosecutor emphasized that
Johnson and Johns must have killed Price because they belonged
to the Neighborhood Crips. The prosecutor argued that only
Neighborhood Crips members could have killed Price because
only Neighborhood Crips members had the ability to commit
crimes in the community where the murder occurred. The
prosecutor referenced the evidence that Neighborhood Crips sold
drugs “openly in broad daylight[,]” that Neighborhood Crips cut
camera wires, and that Neighborhood Crips threatened, attacked,
and/or beat witnesses to discourage them from testifying. He
argued that this evidence proved the guilt of both defendants
because they were both Neighborhood Crips members.
Neighborhood Crips controlled the neighborhood by committing
crimes, and only they could decide “where . . . [and] how people
are killed.” With respect to the firearm allegation, the prosecutor
stated: “[I]f you’re a—with a gang member that pulls the trigger,
you’re responsible for what that person did. Defendant Johnson
is responsible for defendant Johns using the gun and killing the
victim because they’re both gang members.”
The jury found Johnson guilty of first degree murder
(§ 187, subd. (a)) and found true the allegations that he
committed the murder for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)), and that a principle discharged a
firearm causing death in the commission of the crime (§ 12022.53,
subds. (d) & (e)(1)). The trial court sentenced Johnson to 50
years to life in prison.
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B. Petition for Resentencing
On June 21, 2024, Johnson filed a petition for resentencing
pursuant to section 1172.6.
On August 8, 2024, the People filed a response opposing the
petition. The People asserted that Johnson was ineligible for
relief as a matter of law because the record showed Johnson’s
conviction was not based upon the natural and probable
consequences doctrine or upon a theory of felony murder. The
People further argued that Johnson could still be prosecuted
today on the valid theory that he aided and abetted the murder
with intent to kill. The People attached to the opposition, the
jury instructions, the reporter’s transcript of the jury
instructions, the prosecutor’s closing argument, the prosecutor’s
rebuttal argument, the verdict forms, and the prior appellate
opinion affirming the judgment.
On August 20, 2024, Johnson filed a prima facie brief.
Citing People v. Langi (2022) 73 Cal.App.5th 972, Johnson
argued that the fact that the jury was not instructed on the
natural and probable consequences doctrine or the felony murder
theory did not render him ineligible for section 1172.6 relief as a
matter of law.
The court held a hearing on Johnson’s prima facie
eligibility for relief on January 24, 2025. Defense counsel
emphasized that the bar for prima facie eligibility is very low and
cannot involve fact-finding or credibility determinations. Counsel
argued that in the cases that did not meet the burden of showing
prima facie eligibility either the defendant was the sole
perpetrator or, if multiple people were involved, the defendant
was the actual shooter. Johnson’s case did not fall into either
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category. Under the circumstances, counsel did not believe that
the court could make a determination that, as a matter of law,
the jury had not imputed Johns’s actions and intent to Johnson.
To make that determination the court would have to engage in
prohibited fact finding. Counsel acknowledged that the jury was
not instructed on felony murder or the natural and probable
consequences doctrine, but asserted that the absence of those
instructions was not determinative. Counsel pointed to the
prosecutor’s closing argument at trial that, with respect to the
gun use allegation, Johnson was “responsible for defendant Johns
using the gun and killing the victim because they’re both gang
members.” Counsel argued the prosecutor was in effect imputing
Johns’s intent and actions to Johnson, making him vicariously
liable for murder.
The People responded that although the prima facie
eligibility threshold is low, it was not met in Johnson’s case. The
People argued that the jury’s first degree murder finding
foreclosed any possibility that it convicted Johnson on a theory of
imputed malice. In contrast, in People v. Langi, supra, 73
Cal.App.5th 972, the jury had found the defendant guilty of
second degree murder. The People also pointed out that the
prosecutor’s closing argument at trial suggesting Johnson was
vicariously liable “related only to the gang allegation and not in
any way, shape, or form to the murder counts.”
Defense counsel replied that in addition to the holding that
an absence of instructions on invalid theories does not foreclose
eligibility, People v. Langi, supra, 73 Cal.App.5th 972, stands for
the proposition that the court must look at everything that is
presented to the jury. Under that standard, the jury may have
imputed Johns’s actions and mental state to Johnson.
8
The trial court stated that it considered the charging
documents, jury instructions, verdict forms, and the abstract of
judgment. The court refused to consider the reporter’s
transcripts attached to the People’s opposition and stated that it
was not appropriate to consider the prosecutor’s closing
arguments at the prima facie stage. From the documents that
the court reviewed, it concluded that Johnson was convicted as a
direct aider and abettor, and that the jury had been properly
instructed on aiding and abetting, express and implied malice,
and willful, deliberate, and premeditated murder. Based on the
instructions given, the court found Johnson ineligible for relief as
a matter of law and denied the petition.
Johnson timely appealed.
DISCUSSION
A. Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 added
former section 1170.95 (now § 1172.6) and made other
amendments to the Penal Code that eliminated the natural and
probable consequences doctrine and limited the scope of liability
that could be imposed under the felony murder theory. The
purpose of this legislation was to “ ‘ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1(f).) Outside of the felony-murder
rule, ‘a conviction for murder requires that a person act with
malice aforethought. A person’s culpability for murder must be
9
premised upon that person’s own actions and subjective mens
rea.’ (Id., § 1(g).)” (People v. Curiel (2023) 15 Cal.5th 433, 448.)
Effective January 1, 2022, Senate Bill No. 775 further
limited the theories under which a defendant could be prosecuted
to better reflect this purpose. As a result, section 1172.6,
subdivision (a) now provides that a “person convicted of felony
murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime . . .
may file a petition with the court that sentenced the petitioner to
have the petitioner’s murder . . . conviction vacated and to be
resentenced on any remaining counts when all of the following
conditions apply: [¶] (1) A complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
person’s participation in a crime . . . . [¶] (2) The petitioner was
convicted of murder . . . following a trial . . . at which the
petitioner could have been convicted of murder . . . . [¶] (3) The
petitioner could not presently be convicted of murder . . . because
of changes to Section 188 or 189 made effective January 1, 2019.”
(Italics added.)
“[T]he court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (§ 1172.6,
subd. (c).) “[T]he parties can, and should, use the record of
conviction to aid the trial court in reliably assessing whether a
petitioner has made a prima facie case for relief under
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subdivision (c).” (People v. Lewis (2021) 11 Cal.5th 952, 972, fn.
omitted.) “The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section [1172.6], allowing
the court to distinguish petitions with potential merit from those
that are clearly meritless. . . .” (Id. at p. 971.)
“[T]he prima facie inquiry under subdivision (c) is
limited. . . . ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an
evidentiary hearing.’ ” (People v. Lewis, supra, 11 Cal.5th at p.
971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] . . . [T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (Id. at p. 972.) “At the
prima facie stage, a court must accept as true a petitioner’s
allegation that he or she could not currently be convicted of a
homicide offense because of changes to [s]ection 188 or 189 made
effective January 1, 2019, unless the allegation is refuted by the
record. [Citation.] And this allegation is not refuted by the
record unless the record conclusively establishes every element of
the offense.” (People v. Curiel, supra, 15 Cal.5th at p. 463.) If the
petitioner makes a prima facie showing of eligibility, the trial
court must issue an order to show cause and hold an evidentiary
hearing. (Ibid.)
We independently review a trial court’s determination of
whether a petitioner has made a prima facie showing. (People v.
Harden (2022) 81 Cal.App.5th 45, 52.)
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B. Analysis
We agree with the parties that the trial court erred by
refusing to consider the prosecutor’s closing argument when
determining whether Johnson made a prima facie showing of
eligibility for relief. (See People v. Lopez (2022) 78 Cal.App.5th 1,
13 [record of conviction may include closing arguments of
counsel]; People v. Harden, supra, 81 Cal.App.5th at p. 55
[considering counsel’s arguments when determining prima facie
eligibility under § 1172.6].) In promulgating Senate Bill No. 775,
the Legislature specifically provided relief to persons who may
have been convicted under an “other theory under which malice
is imputed to a person based solely on that person’s participation
in a crime.” (§ 1172.6, subd. (a).) Where the petitioner argues
that he or she was convicted under an “other theory” of imputed
malice, the absence of natural and probable consequences and
felony-murder instructions to the jury alone may not be sufficient
to preclude eligibility as a matter of law. (See People v. Lopez
(2026) 19 Cal.5th 639, 661 [legislature intended Senate Bill No.
1437 to reach beyond felony murder and natural and probable
consequences cases].) As here, where the petitioner has
identified specific portions of the record of conviction in support of
the claimed theory of imputed malice, the trial court should
consider that record material in the first instance to make its
prima facie determination.
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DISPOSITION
We reverse the trial court’s order denying Johnson’s
petition for resentencing and remand the cause to the trial court
to consider the record of conviction in its entirety.
NOT TO BE PUBLISHED.
MOOR, J.
I CONCUR:
BAKER, J.
13
People v. Johnson, B343580
HOFFSTADT, P. J., Dissenting.
Our Supreme Court’s recent decision in People v. Lopez
(2026) 19 Cal.5th 639 (Lopez) makes clear that a homicide
“conviction based on imputed malice”—the threshold for potential
relief under Penal Code section 1172.6—may be presented
through “argument, evidence, and instructions.” (Id. at p. 666,
italics added.) I therefore agree with the majority that the trial
court erred by flatly refusing to consider the closing arguments in
this case when evaluating whether defendant had made a prima
facie case under section 1172.6.
Unlike the majority, I would ask a further question: Is
there a reasonable probability that, had the trial court considered
the closing arguments in this case, defendant would be entitled to
an evidentiary hearing (because those arguments create the
potential that the record would no longer conclusively establish
defendant’s guilt under a still-viable theory)? (People v. Lewis
(2021) 11 Cal.5th 952, 973-974; People v. Curiel (2023) 15 Cal.5th
433, 463 (Curiel).)
I do not think there is.
The baseline rule is that the jury instructions are
controlling, such that the absence of any instruction on a theory
of imputed malice forecloses relief under section 1172.6 as a
matter of law (rendering denial at the prima facie stage
appropriate). (People v. Harden (2022) 81 Cal.App.5th 45, 52
[“[I]f the record shows that the jury was not instructed on either
the [now-invalid] natural and probable consequences or felony-
murder doctrines, then the petitioner is ineligible for relief as a
matter of law.”]; see also People v. Cunningham (2025) 112
Cal.App.5th 1243, 1250 [“It is the instructions given that inform
the jury’s verdict.”].) Defendant does not dispute that his jury
was never instructed on a theory of imputed malice.
Instead, defendant argues that the prosecutor’s closing
argument injected a now-invalid theory of imputed malice into
the trial and thus infected the jury’s verdict—notwithstanding
the jury instructions.
There is no doubt that, when the jury instructions are
ambiguous, the argument of counsel may well exploit that
ambiguity to inject an imputed malice theory into the
proceedings. Our Supreme Court’s very recent decision in Lopez
acknowledges as much. (Lopez, supra, 19 Cal.5th at p. 667;
accord, People v. Maldonado (2023) 87 Cal.App.5th 1257, 1268-
1269.)
But the jury instructions in this case were not ambiguous.
Defendant’s jury was given the standard instruction for direct
aiding and abetting, which correctly sets forth the elements that
together require a finding that the aider and abettor shared the
perpetrator’s intent to kill (People v. McCoy (2001) 25 Cal.4th
1111, 1118); this element requiring proof that defendant
personally harbored an intent to kill is precisely why direct
aiding and abetting remains a viable theory of homicide (Curiel,
supra, 15 Cal.5th at p. 463).
The calculus is different where the jury instructions are
correct and unambiguously so. In that instance, and where, as
here, the jury is also instructed that the argument of counsel
cannot trump those instructions, the “presumption that jurors
understand and follow trial court instructions” and thus will
disregard “‘argument [that] runs counter to [the] instructions’”
2
applies with full force. (People v. Gonzales (2018) 5 Cal.5th 186,
205; People v. Centeno (2014) 60 Cal.4th 659, 676.) That should
raise the bar for what is necessary to show that counsel’s
argument has injected an impermissible theory into the case.
Looking at the evidence before this court de novo (People v.
Anaya (2025) 117 Cal.App.5th 615, 620), I do not see a reasonable
probability that the prosecutor’s closing argument in this case
clears that higher bar—or even the regular bar, for that matter.
At no point did the prosecutor explicitly urge the jury to infer
defendant’s intent to kill from his gang membership or to impute
another gang member’s intent to defendant. To the contrary, the
prosecutor was careful to repeat the standard jury instruction
requiring proof that defendant “knew [Johns] intended to commit
the murder” and that he “intended to aid and abet” Johns in
doing so—in other words, that defendant himself shared Johns’
specific intent to kill. The prosecutor went on to restate that
requirement in plain language, explaining that defendant was
guilty of the charged murder because he “knew what [] Johns was
going to do and he helped” and because defendant was “directly
involved” in the killing. I read these arguments as being wholly
consistent with the instructions’ requirement that the jury find
that defendant himself acted with the specific intent to kill.
Defendant’s argument to the contrary rests chiefly on the
possibility that a jury could have inferred an imputed malice
theory from the prosecutor’s repeated references to defendant’s
gang membership and the power of that gang in the
neighborhood. I do not view that line of argument by the
prosecutor as urging the jury to disregard the intent to kill
element in favor of a theory of imputed malice; rather, the
prosecutor was arguing that defendant’s gang membership was
3
relevant, not only to prove the gang enhancement,1 but also to
prove defendant’s identity and motive, both of which were
relevant to prove that defendant—as a gang member with a
motive against a rival gang—acted with the intent to kill. (People
v. Holmes, McClain & Newborn (2022) 12 Cal.5th 719, 772 [“gang
. . . membership [is] highly relevant to prove their involvement,
motive, and intent to kill”].) To read the prosecutor’s references
to gang membership in this case as implicitly injecting an
imputed malice theory is, in my view, to require a prosecutor to
repeat the phrase, “But you still need to find the defendant’s
personal intent to kill” after every reference to gang evidence—
even where, as here, the prosecutor correctly reiterated the
correct instruction on intent. Defendant also relies heavily on the
prosecutor’s statement that defendant “is responsible for [] Johns
using the gun and killing the victim because they’re both gang
members,” but wholly ignores that this sentence was spoken—not
as an argument for holding defendant liable for murder—but
rather for holding him liable for the firearm enhancement based
on a principal’s use of a gun when a gang is involved (under
section 12022.53, subdivision (e)(1))—as it came after the
prosecutor’s mention of the “gun allegation.”
Section 1172.6 was enacted to ensure that homicide
convictions rest on a finding of personal—rather than imputed—
intent. Where the jury instructions correctly and unambiguously
mandated such a finding of personal intent and the prosecutor at
no point invited the jury to disregard that mandate, I am
reluctant to find that closing argument has implicitly injected an
1 This trial occurred long before the current statutory duty to
bifurcate the gang enhancement was enacted. (Pen. Code,
§ 1109.)
4
impermissible, imputed malice theory—particularly where, as
here, that imputation rests on excerpts of what was said wholly
divorced from their context. I worry that this invites the
flyspecking of closing arguments years or decades after the fact.
More fundamentally, I worry that it turns section 1172.6 into a
form of “super habeas” that affords an evidentiary hearing (where
new evidence may be introduced in support of overturning
homicide convictions) in situations where traditional habeas
would foreclose relief (either because the prosecutor’s comments
do not rise to the level of a misstatement of the law that would
warrant such relief, or because the usual restraints on successive
and abusive writs would bar relief). I see nothing in the text or
purpose of section 1172.6 that warrants such a fundamental
terraforming of the landscape of post-conviction relief.
I accordingly dissent.
___________________, P. J.
HOFFSTADT
5