Friday, June 26, 2026
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Judge at Resentencing Hearing Must Consider Entire Record in Deciding Eligibility—C.A.
Hoffstadt Agrees With Colleagues That There Was Error in Disregarding Remarks By Prosecutor to Jury but Says, in Dissent, It Wasn’t Prejudicial to Defendant
By a MetNews Staff Writer
Div. Five of the Court of Appeal for this district, in a 2-1 decision, has reversed an order denying a resentencing hearing to a man convicted of first-degree murder, holding that Los Angeles Superior Court Judge Charlaine F. Olmedo prejudicially erred in declining to consider the possibly prejudicial effect of a prosecutor’s closing statement to the jury.
Presiding Justice Brian M. Hoffstadt dissented. Olmedo did err in not taking into account the remarks by the prosecutor, he said—agreeing, to that extent, with Wednesday’s majority opinion by Justice Carl H. Moor—but maintained that the error did not cause any prejudice to defendant Kevin Johnson.
The instructions Olmedo gave the jury in 2016 correctly stated the law, he said, and the prosecutor (Los Angeles County Deputy District Attorney Bobby Zoumberakis) did not urge that jurors deviate from those directions.
Justice Lamar Baker signed Moor’s opinion.
2015 Slaying
The killing took place on May 29, 2015. Johnson and co-defendant Kanasho Shadrick Johns were members of a Crips-affiliated gang; the Bloods were a rival gang, members of which often wore red; Tavin Price, 19, who was developmentally disabled, was spotted by a member of the same gang as Johnson and Johns wearing a red shirt and red shoes, and spread the word; Johnson drove Johns to the place where Price was seen; Johns shot Price four times in the back.
Johnson was convicted on Oct. 24, 2016, of first-degree murder, with allegations of gang membership and handgun use found to be true. Olmedo sentenced him on Nov. 30, 2016, to 50 years to life in state prison (and sentenced Johns to 53 years to life).
On June 21, 2024, Johnson petitioned under Penal Code §1172.6 to have the murder conviction vacated and to be resentenced. That statute provides relief for those who were convicted under a now repudiated theory of fictionally imputed malice and could not be found guilty under current law.
The District Attorney’s Office argued that Johnson could, in fact, be convicted today, under the circumstances of his crime. Penal Code §189 provides that it is first degree murder where the defendant “was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.”
There was testimony that Johnson did join with Johns in planning the killing.
Transcript Cited
Johnson’s lawyer wanted note to be taken that the prosecutor at the 2016 trial told jurors that Johnson was “responsible for defendant Johns using the gun and killing the victim because they’re both gang members.” That, the lawyer maintained, imparted that Johns’s intent should be imputed to Johnson.
Without considering the transcript of the prosecutor’s argument to the jury, Olmedo held that Johnson is facially not entitled to a resentencing, and denied the petition without holding an evidentiary hearing.
Moor said that under decisional law, a judge, in making a prima facie determination as to eligibility for resentencing, must consider the entire record, which Olmedo did not do. He declared that “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,” necessitating a remand to enable Olmedo to do so.
Hoffstadt’s Dissent
Hoffstadt said he agrees that Olmedo was required to review the entire record, but wrote:
“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)?...
“I do not think there is.”
Hoffstadt went on to say:
“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 impermissible, imputed malice theory—particularly where, as here, that imputation rests on excerpts of what was said wholly divorced from their context.”
He remarked:
“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.”
The case is People v. Johnson, B343580.
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