Filed 4/5/22 P. v. Robinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Nehemiah Robinson, filed a petition for resentencing pursuant to Penal Code section 1170.95,[1] which the court denied after holding an evidentiary hearing. On appeal, defendant contends the court erred in denying his petition. We affirm.[2]

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 10, 1989, defendant, along with three others, attempted to rob two women, one of whom was with her two daughters, who were in their vehicles outside a check-cashing business. The attempted robbery resulted in the shooting death of one of the women and serious injuries to the other. (People v. Conway et al. (June 24, 1999, E016673) [nonpub. opn.] (Conway).)

A jury convicted defendant of murder, attempted murder, and two counts of attempted robbery. The jury additionally found true a robbery special circumstance finding (§ 190.2, subd. (a)(17)) and found that the attempted murder was premeditated and deliberate. The jury found not true enhancements for the personal use of a firearm alleged on each count. (Conway, supra, E016673.)

Defendant appealed. This court affirmed. (Conway, supra, E016673.)

With respect to defendant’s argument that there was insufficient evidence to support premeditation on the attempted murder conviction, this court held, “there was evidence of planning activity because a reasonable trier of fact could infer that defendants armed themselves to be prepared to shoot anyone who failed to obey their instructions or who failed to cooperate with the planned robbery. . . . [¶] . . . [T]he nature of the attempted killing permits an inference that the shooter not only intended to kill his victim, but that he planned to kill anyone who did not cooperate with his robbery objective. At the very least, the evidence was sufficient to allow the trier of fact to draw a reasonable inference of premeditation and deliberation, even though the evidence would also support a contrary jury finding. We therefore find that a rational trier of fact could find that the shooter acted with deliberation and premeditation.” (Conway, supra, E016673.) When tackling a section 654 issue, this court observed, “We agree with respondent that the extreme level of gratuitous violence displayed by each defendant in this case towards a separate victim was not incidental to the attempted robbery of the check-cashing store.” (Ibid.)

As to defendant’s challenge of the court’s instruction of the jury on the natural and probable consequences doctrine, this court held that the trial court’s failure to provide a definition of the target crime “was not error because the jury was instructed on the obvious target crime of attempted robbery.” (Conway, supra, E016673.) Even if the court did err, it was not prejudicial because the jury was instructed on the other possible target crimes and “the prosecutor did not rely on the doctrine in oral argument and it is therefore highly unlikely that the jury relied on the doctrine to convict . . . defendant. In other words, it appears that defendants were convicted of the primary offenses because of their own actions, not because they acted as accomplices or aided and abetted the actions of another.” (Ibid.)

As to an instructional challenge on the special murder circumstance, this court observed that the trial court, in reading the instruction to the jury, had said: “‘On the other hand, if you find beyond a reasonable doubt that the defendants or a defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true.’ (Emphasis added.)” (Conway, supra, E016673.) Nonetheless, this court held that the trial court properly gave the jury CALJIC No. 8.80, which required the jury to find either (1) defendant was the actual killer or (2) that defendant aided and abetted with the intent to kill. (Conway, supra, E016673.)

This court held: “[T]he jury was properly told that it had to find an intent to kill before it could find the special circumstance to be true as to an aider and abettor. [¶] . . . If any juror parsed the written instruction, it would be apparent that intent to kill was not required only when the defendant was the actual killer. . . . [¶] Viewing the instructions as a whole, we think a reasonable juror would conclude that an aider and abettor had to have an intent to kill before the special circumstance was applicable. . . . [¶] . . . [¶] Applying this test here, we conclude that a reasonable trier of fact could conclude that defendants . . . decided to rob the check-cashing business, and were prepared to kill the victims if they refused to cooperate. The victims did refuse to cooperate and were shot, one fatally. The evidence was sufficient to support the conclusion that each defendant intended to kill a victim when they each fired multiple shots into the respective cars at point-blank range, and that each defendant intended to aid the other in carrying out the robbery, including the intent to kill uncooperative victims. There was sufficient evidence of an intent to kill.” (Conway, supra, E016673.)

On June 23, 2016, defendant filed a motion to recall the remittitur based on the purported instructional error on the natural and probable consequences doctrine. This court denied the motion noting that it had previously found “it is . . . highly unlikely that the jury relied on the [natural and probable consequences] doctrine to convict . . . defendant.” (Conway, supra, E016673.) This court relied on the law of the case in denying defendant relief, i.e., the court had already determined the issue on appeal. This court additionally ruled that defendant’s “assertion that the felony-murder special circumstance allowed him to be sentenced to life without the possibility of parole without reference to his individual culpability in this case fails. [Citations.] As we stated in our opinion on appeal, [defendant] was an active and substantial participant, and evidence pointed to [defendant] as the person who shot one of the victims.” (Ibid.)

On March 18, 2019, defendant filed a petition for resentencing of his murder conviction.[3] On May 29, 2019, the People filed a motion to strike defendant’s petition based largely on section 1170.95’s purported unconstitutionality.[4] On July 22, 2019, defense counsel filed an opposition to the People’s motion to strike defendant’s petition contending defendant had made a prima facie showing of eligibility.

At a hearing on January 10, 2020, the People withdrew their motion to strike defendant’s petition, no longer contesting section 1170.95’s constitutionality. The court issued an order to show cause and set the matter for an evidentiary hearing.[5]

At the hearing on January 17, 2020, the parties and the court questioned whether defendant had already made a prima facie showing for relief.[6] The court reviewed the verdicts and found that defendant had been convicted of murder and attempted murder. The court found defendant had made a prima facie showing of relief. The court issued an order to show cause and set the matter for an evidentiary hearing.

At a hearing on February 28, 2020, the court, on its own motion, moved to reconsider its finding that defendant had made a prima facie showing of relief. It ordered briefing on the issue.

On March 2, 2020, defense counsel filed a brief arguing defendant had made a prima facie showing for relief. At a hearing on March 13, 2020, the People conceded defendant had made a prima facie showing of relief. The court ruled that its previous ruling finding that defendant had made a prima face showing would stand. The court reset the matter for an evidentiary hearing.

Defense counsel moved to proceed on the petition as to defendant’s attempted murder convictions as well. The court reserved the matter for the next hearing.

On March 13, 2020, the People filed a motion to strike defendant’s petition. The People argued defendant was ineligible for relief on the murder conviction because he was a major participant in the robbery who acted with reckless indifference to human life. The People contended defendant was ineligible for relief on the attempted murder conviction because the jury had found true the allegation that defendant had acted with premeditation and deliberation.

On March 16, 2020, defense counsel filed a motion for resentencing as to defendant’s attempted murder convictions. Defense counsel also filed evidentiary objections to the admission of evidence at the evidentiary hearing. Additionally, defense counsel filed a brief pertaining to the evidentiary hearing arguing defendant was entitled to have his murder conviction vacated.

On June 12, 2020, the court held the evidentiary hearing. The court noted that the People had the burden of proof. Defense counsel asked that the evidentiary hearing proceed as to defendant’s attempted murder convictions as well.

The People moved four exhibits into evidence: Exhibit 1 consists of the jury verdicts; exhibit 2 consists of the trial testimony of one of the other robbers; and exhibit 3 consists of the trial testimony of another witness.[7] The People argued that the victim of the attempted murder conviction testified at the preliminary hearing that four men ran toward her; one of them grabbed her car door, told her to get out, and pointed a gun at her. She noticed another one of the men had a gun. She honked the horn; one of the men fired his gun into the car. The bullet went through her arm and into her stomach.

The attempted murder victim’s daughter testified at the preliminary hearing that four men approached the car; one of them demanded her mother’s money, pointed a handgun at her mother, and shot her mother.

The arresting officer testified he engaged in a pursuit of a vehicle containing defendant and two other men; defendant and another one of the men shot at the officer with handguns; defendant used a white, steel, semiautomatic pistol, which was recovered from his person at the time of his arrest. Another officer testified at the preliminary hearing that one of the robbers said he was involved in the robbery, as a driver, during which defendant bore a gun as he ran up to the victims; after the shooting, defendant said he shot one of the women in the chest.

A forensic specialist testified at the preliminary hearing that he recovered two handguns from the driver’s vehicle; he was given a third handgun, a Smith and Wesson nine-millimeter pistol, which was found near defendant. Another forensic specialist testified at the preliminary hearing that shell casings found at the scene were fired from the gun found near defendant.

At trial, one of the robbers testified that he was with defendant and two others checking out a check-cashing business to rob. Defendant, and one of the other robbers, approached the victim’s car with their firearms; defendant carried a Smith and Wesson nine-millimeter pistol; the other robber fired first; defendant fired his weapon thereafter. After the shooting, defendant said, “‘I shot the bitch in the chest.’”

Based on the evidence, the People argued defendant was a major participant who acted with reckless indifference to human life. The People also argued that section 1170.95 did not apply to attempted murder. The People asked that the court review the exhibits admitted into evidence. The court took judicial notice of the record of conviction. The People then moved exhibit 5 into evidence.[8]

Defense counsel argued that the jury’s findings on the personal use of a firearm enhancements reflected that it did not believe that defendant was a shooter. Defense counsel also noted that since the jury was instructed with the natural and probable consequences doctrine, the court could not determine under which theory the jury found defendant guilty. Defense counsel further argued there was nothing in the record to reflect that defendant was subjectively aware that his participation in the crime posed a grave risk of death. Defense counsel additionally argued there was nothing in the record to indicate defendant “had a willingness to kill.” Defense counsel asked the court to consider documents attached to defendant’s writ of habeas corpus in which another court previously, purportedly determined that the other robber lied when he testified during the trial.[9]

The court allowed defendant to personally argue before the court. Defendant argued another court, in a writ proceeding, had ruled that the other robber who testified against defendant at trial was “a scum bag who lies . . . .” According to defendant, that judge “evaluated testimony and determined it was stipulated that [the other robber] was a liar.” Defendant noted that the jury had not convicted any of the perpetrators of the robbery as the “trigger man.” “[T]he prosecutor conceded he had no case.”

In reply, the People argued that if the court reviewed the exhibits admitted into evidence it should find beyond a reasonable doubt that defendant was a major participant who acted with reckless indifference to human life. The court took the matter under submission.

On July 27, 2020, by written order, the court denied defendant’s petition. The court indicated it had reviewed this court’s opinion, the preliminary hearing transcript, the trial transcripts, and the jury’s verdicts and findings. The court observed that one of the robbers testified at trial that they had gone to the check-cashing business to rob it: “‘So the horn blew and that is when [one] [robber] shot inside the passenger—I mean the driver’s seat of the car that he was standing by and after he fired, that is when [defendant] fired.’” Defendant “‘fired right after’” the other robber.

The court denied the petition as to the attempted murder conviction following the decisions then holding that section 1170.95 did not apply to attempted murder. As to the murder conviction, the court noted: “The verdict form did not indicate which legal theory the jury unanimously agreed on. If the jury had not found the special circumstance true . . . , the defendant would have been eligible to have his murder conviction vacated. The court would have had to continue its analysis . . . . With the special circumstance found true, that analysis is much simplified.” “By finding the special circumstance true, the jury found beyond a reasonable doubt that defendant, with the intent to kill, aided and abetted an actor in the commission of first degree murder.” “It is unnecessary for the court to determine if defendant was a major participant and acted with reckless indifference. This analysis would be necessary if defendant lacked the intent to kill. The record of conviction states otherwise.”

At a hearing on August 4, 2020, the court noted that its decision had been filed on July 27, 2020. Defendant personally lodged objections based on the court’s purported lack of jurisdiction and bias. The court observed that “the special circumstance findings pretty much resolved the matter even without a hearing, and . . . the Court could probably have resolved the matter without an order to show cause hearing . . . .” The court noted its ruling would stand.

II. DISCUSSION

Defendant contends the court erred in summarily denying his petition. He maintains that the court erred in relying on the jury’s findings in ruling on the petition instead of acting as an independent factfinder. Defendant argues the court incorrectly concluded the jury necessarily convicted defendant as an aider and abettor who had the specific intent to kill; thus, he contends the court applied the incorrect standard in ruling on the petition. We disagree.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 [(2017-2018 Reg. Sess.)] ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959.)[10]

“Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ [Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)

“A denial at that stage is appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted Oct. 14, 2020, S264284.)

“In finding [a] felony-murder special circumstance true, [a] jury necessarily [finds] appellant either acted with intent to kill or was a major participant . . . who acted with reckless indifference to human life. This finding establishes that appellant is ineligible for section 1170.95 relief as a matter of law.” (People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord People v. Nunez (2020) 57 Cal.App.5th 78, 91, review granted Jan. 13, 2021, S265918; accord People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854 [“A defendant with a special circumstance finding under section 190.2, subdivision (d) is not eligible for relief under section 1170.95 as a matter of law.”]; accord People v. Murillo, supra, 54 Cal.App.5th at p. 167 [true finding on burglary special murder circumstance rendered defendant ineligible for § 1170.95 relief]; accord, People v. Galvan, supra, 52 Cal.App.5th at pp. 1137, 1140-1141 [any murder special circumstance finding under § 190.2, subd. (a)(17), renders a defendant ineligible for § 1170.95 relief as a matter of law]; cf. People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez), review granted Oct. 14, 2020, S264033 [the jury’s true findings on robbery and kidnapping special circumstance allegations rendered defendant ineligible for § 1170.95 relief as a matter of law]; contra, People v. Smith (2020) 49 Cal.App.5th 85, 94, review granted July 22, 2020, S262835 [a jury’s special circumstance finding does not preclude § 1170.95 eligibility as a matter of law]; accord People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Secrease (2021) 63 Cal.App.5th 231, 254, review granted June 30, 2021, S268862.)

We agree with the court below and the Gomez line of cases that “[b]y finding the special circumstance true, the jury found beyond a reasonable doubt that defendant, with the intent to kill, aided and abetted an actor in the commission of first degree murder.” Thus, defendant was prima facie ineligible for relief as a matter of law.

Here, on the special murder circumstance allegation, the jury was instructed with CALJIC No. 8.80, which required that it find, beyond a reasonable doubt that, in the commission of the attempted robbery, defendant was either the actual killer or an aider and abettor who acted with the intent to kill. The jury found the special murder circumstance true. Thus, the jury necessarily found, at minimum, that defendant was an aider and abettor in the robbery, who acted with intent to kill.

Defendant contends that the court’s error in orally instructing the jury on the special murder circumstance means it is possible that the jury found the special circumstance true because it concluded another defendant acted with the specific intent to kill. This exact issue was already resolved in the opinion on the appeal from defendant’s judgment. This court held that the trial court properly gave the jury CALJIC No. 8.80, which required the jury to find either (1) that defendant was the actual killer or (2) that defendant aided and abetted with the intent to kill. (Conway, supra, E016673.)

This court held: “[T]he jury was properly told that it had to find an intent to kill before it could find the special circumstance to be true as to an aider and abettor. [¶] . . . If any juror parsed the written instruction, it would be apparent that intent to kill was not required only when the defendant was the actual killer. [¶] Viewing the instructions as a whole, we think a reasonable juror would conclude that an aider and abettor had to have an intent to kill before the special circumstance was applicable. . . . [¶] . . . [¶] Applying this test here, we conclude that a reasonable trier of fact could conclude that defendants . . . decided to rob the check-cashing business, and were prepared to kill the victims if they refused to cooperate. The victims did refuse to cooperate and were shot, one fatally. The evidence was sufficient to support the conclusion that each defendant intended to kill a victim when they each fired multiple shots into the respective cars at point-blank range, and that each defendant intended to aid the other in carrying out the robbery, including the intent to kill uncooperative victims. There was sufficient evidence of an intent to kill.” (Conway, supra, E016673.)

As this court noted in its denial of defendant’s motion to recall the remittitur, “‘“Questions determined by an intermediate appellate court constitute the law of the case after the decision becomes final.”’” Thus, defendant was ineligible for relief because the jury necessarily determined that when he committed the robbery, he acted with the specific intent to kill.

III. DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

CODRINGTON

J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Defendant also filed a petition for writ of habeas corpus on this issue (In re Robinson, E075612), which we ordered considered with this appeal. We will resolve that petition by separate order.

[3] Defendant later requested resentencing on his attempted murder conviction as well.

[4] The People also, incorrectly, maintained that defendant had not been convicted of murder and, therefore, was ineligible for relief.

[5] The court did not make an express finding that defendant had made a prima facie case for relief.

[6] The People, again, erroneously stated defendant was ineligible for relief because he had not been convicted of murder.

[7] Exhibit 4 is not included in the record on appeal. The clerk of the superior court submitted an affidavit noting that after checking with the exhibits clerk and the district attorney’s office, exhibit 4, a transcript of the preliminary hearing, could not be located. The oral descriptions of the exhibits by the court below differ from those contained in the record on appeal. However, in its written order, the exhibits correspond with those in the record on appeal.

[8] No exhibit 5 appears in the record. The People described exhibit 5 below as the preliminary hearing transcript.

[9] Although a petition for writ of habeas corpus filed by defendant in the superior court on January 23, 2019, does appear in the record, no documents are attached to the petition. The record does contain an order denying the petition for writ of habeas corpus filed on March 8, 2019; however, the judge made no credibility determinations in that order with respect to any witness testimony.

[10] The Legislature amended section 1170.95 with Senate Bill No. 775 (2021-2022 Reg. Sess) to, in part, apply to convictions for attempted murder. (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) Defendant does not challenge the court’s ruling on his attempted murder conviction.