People v. Robinson CA3 ( 2021 )

Filed 9/9/21 P. v. Robinson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091744
Plaintiff and Respondent, (Super. Ct. No. 95F04763)
v.
THOMAS ROBINSON,
Defendant and Appellant.
On March 20, 1997, a jury found defendant Thomas Crater Robinson guilty of one
count of first degree murder (Pen. Code, § 187),1 five counts of robbery (§ 211), and two
counts of attempted robbery (§§ 211/644). The jury also found true a murder special
circumstance that defendant had been engaged in robbery (§ 190.2, subd. (a)(17)), had
personally used a firearm for seven counts (§ 12022.5, subd. (a)), was armed with a
1 Undesignated statutory references are to the Penal Code.
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firearm for one count (§ 12022, subd. (a)), and inflicted great bodily injury for one count
(§ 12022.7). Defendant also had a prior strike conviction. On April 28, 1997, defendant
was sentenced to life without the possibility of parole, plus an additional determinate
term of 47 years. We affirmed this judgment in People v. Robinson (Dec. 10, 1999,
C026595) [nonpub. opn.] (Robinson).
On December 2, 2019, defendant filed a petition for resentencing under section
1170.95 in light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg.
Sess.), which “ ‘amend[ed] 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).)” (People v. Verdugo (2020)
44 Cal.App.5th 320, 325, review granted Mar. 18, 2020, S260493 (Verdugo).)
Defendant’s pro. per. form petition for resentencing checked boxes declaring he
had been prosecuted and convicted of felony murder and could not now be convicted of
either first or second degree murder because of changes made to sections 188 and 189.
This petition further declared defendant was not the actual killer and had not acted “with
the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree.” However, the petition failed to
declare that defendant was not a major participant in the felony or did not act with
reckless indifference to human life during the course of the crime or felony. The superior
court appointed defense counsel, the prosecutor filed a response and a motion to dismiss
the petition, and defense counsel filed a reply.
On February 24, 2020, the trial court dismissed defendant’s petition finding him
ineligible because a jury unanimously found defendant guilty of “first degree murder and
that a Penal Code [section] 190.2[, subdivision ](a)(17) robbery-murder special
circumstance was true. . . . As such, the jury necessarily made a true finding, beyond a
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reasonable doubt, on the actual killer/intent to kill/major participant with reckless
indifference requirement now embodied in Penal Code [section] 189[, subdivision ](e)
itself for felony first degree felony-murder.”
Because defendant failed to aver that he was not a major participant and did not
act with reckless indifference to human life, his petition was facially insufficient and
failed to establish his eligibility for relief. (§§ 189, subd. (e)(3), 1170.95, subd. (a)(3).)
However, the denial of his petition was without prejudice; he could correct this omission
by bringing a successive petition expressly alleging the required facts. (§ 1170.95, subd.
(b)(2).) Rather than putting him to a procedural task that would only delay resolution of
this matter, we will instead address the ultimate issue and conclude that his claim is not
only procedurally defective but fails as a substantive matter. We thus affirm the
judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s petition is largely bereft of details concerning his trial and conviction.
In determining whether a petitioner is ineligible for relief as a matter of law, the trial
court may evaluate “documents in the court file or otherwise part of the record of
conviction that are readily ascertainable . . . .” (Verdugo, supra, 44 Cal.App.5th at
p. 329, rev. granted.) This includes our earlier unpublished decision and the jury
instructions. (Id. at p. 333; People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted
Oct. 14, 2020, S264033.) We extract from this background information to provide
context for our discussion.
Around midnight on June 8, 1995, defendant and Andrew Crater robbed several
victims at gun point at different locations in Sacramento. One robbery took place outside
of a music venue where James Pantages had just finished playing with his band. Carter
struck one of Pantages’ bandmates with a gun and took money from his pocket and
defendant shot Pantages in the chest, who died a short while later. (Robinson, supra,
C026595 [at pp. 3-4].)
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At trial, the jury was instructed as follows for the special circumstance finding:
“If you find that a defendant was not the actual killer of a human being . . . you cannot
find the special circumstance to be true unless you are satisfied beyond a reasonable
doubt that such defendant with the intent to kill aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted any actor in the commission of the murder in the
first degree, or with reckless indifference to human life and as a major participant, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted in the
commission of the crime of robbery which resulted in the death of a human being.”
DISCUSSION
Though our prior opinion indicates defendant was the actual killer, this was not
necessarily found by the jury nor at issue on defendant’s direct appeal. But the People
alleged and the jury found true the robbery-murder special circumstance, which
authorizes a sentence of life without the possibility of parole for “a major participant” in
a felony murder who acted with “reckless indifference to human life.” (§ 190.2, subds.
(a)(17) & (d).) These are also the precise facts the prosecution must prove in order to
establish guilt under the felony-murder statute as amended by Senate Bill No. 1437.
The People argue the jury’s special circumstance finding renders defendant
ineligible for relief under section 1170.95 as a matter of law. Defendant, supported by
case authority, disagrees. He points to the Supreme Court’s opinions in People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, issued after the jury’s
finding and following our review of that finding in the present case. In Banks and Clark
the court construed “major participant” and “reckless indifference to human life” in a
manner that differed from earlier constructions of the term. According to People v.
Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011, a case
relied on by defendant, in light of the Supreme Court’s opinions, we “cannot simply defer
to the jury’s pre-Banks and Clark factual findings that [defendant] was a major
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participant who acted with reckless indifference to human life as those terms were
interpreted at the time.” (Id. at p. 1179.)
Further, according to People v. Smith (2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835, another case cited by defendant, “Section 1170.95 provides ‘the
petitioner may rely on the record of conviction or offer new or additional evidence to
meet [his] burden[ ].’ (§ 1170, subd. (d)(3).) It is conceivable that [defendant] may be
able to provide evidence not presented at trial that would demonstrate either that he was
not a major participant in the robbery or did not act with reckless indifference to human
life. By ruling prior to the appointment of counsel, the trial court deprived [defendant] of
the opportunity to develop, with the aid of counsel, a factual record beyond the record of
conviction.” (Id. at p. 95, fn. omitted.)
With respect, we disagree with Torres and Smith “because, in our view, they rest
on a misunderstanding of the effect of Banks and Clark, and they overlook the plain
language of section 1170.95.” (People v. Jones (2020) 56 Cal.App.5th 474, 483, review
granted Jan. 27, 2021, S265854.)
The Banks and Clark decisions did not pronounce new standards for the
determination of “major participant” and “reckless indifference.” The pattern jury
instructions that guide juries in determining felony-murder special circumstances remain
the same. The facts determined by defendant’s jury are the same as the facts that would
be determined by a jury today.
Section 1170.95 expressly limits evidentiary hearings to circumstances where a
petitioner can demonstrate they “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a)(3), italics added.) “[T]here is no basis to conclude as a general matter that a
pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or
resolved different factual issues, answered different questions, or applied different
standards. The mandatory instructions did not change, and the pre-Banks and Clark jury
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necessarily resolved the same factual issues beyond a reasonable doubt that a post-Banks
and Clark jury would necessarily resolve beyond a reasonable doubt. [¶] Of course, jury
findings in a final judgment are generally considered to be valid and binding unless and
until they are overturned by collateral attack.” (People v. Nunez (2020) 57 Cal.App.5th
78, 94, review granted Jan. 13, 2021, S265918.)
Like the defendant in Jones, defendant here is not seeking relief “because of” the
changes to section 189, that provide a basis for challenging his murder conviction but
because of purported changes in the law wrought by Banks and Clark that provide a basis
for challenging his special circumstance finding. (See also People v. Allison (2020)
55 Cal.App.5th 449, 458.) The appropriate vehicle for asserting a challenge to the special
circumstances finding is not a petition under section 1170.95. Section 1170.95 does not
permit a court to ignore express findings of a jury or to supplant them with new findings
based on evidence provided at a hearing where the People would again have the burden
of persuasion beyond a reasonable doubt. If defendant believes the jury finding lacks
evidentiary support, the appropriate procedure for challenging it is by a petition for
habeas corpus. “When a defendant seeks habeas corpus relief, the underlying judgment
is presumed valid. [Citation.] In a habeas corpus challenge to the sufficiency of the
evidence to support a special circumstance finding, the ‘standard of review . . . is
whether, when evidence that is reasonable, credible, and of solid value is viewed “in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable doubt.” ’ ” (In re Bennett (2018)
26 Cal.App.5th 1002, 1018, quoting People v. Clark, supra, 63 Cal.4th at p. 610.) A
petitioner who challenges a pre-Banks/Clark finding on habeas must establish that the
record contains insufficient evidence to support a conclusion they acted as a major
participant or with reckless indifference to human life. (People v. Duvall (1995)
9 Cal.4th 464, 474.)
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Though we recognize the split in appellate decisions on this issue, we believe the
better analysis is set forth in People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted October 14, 2020, S264284, People v. Murillo (2020) 54 Cal.App.5th 160,
review granted November 18, 2020, S264978, Jones, Nunez, and other cases that disagree
with Smith and Torres. Accordingly, we conclude that defendant’s special circumstance
finding renders him ineligible for relief under section 1170.95 as a matter of law. The
petition was properly denied without an evidentiary hearing.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
HULL, J.
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