People v. Roberson CA2/3 ( 2021 )

Filed 10/19/21 P. v. Roberson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305909
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A394764)
v.
KEITH CONEY ROBERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Keith Coney Roberson appeals from an order summarily
denying his petition for resentencing of his murder conviction
pursuant to Penal Code1 section 1170.95. A jury convicted
Roberson in 1985 of first degree murder (§ 187, subd. (a); count 1)
and robbery (§ 211; count 2). The jury found true the special
circumstance that Roberson committed the murder in the
commission of the robbery. (§ 190.2, subd. (a)(17).) The jury also
found true that Roberson personally used a firearm as to both
counts. (§ 12022.5.) Roberson was sentenced to life without
possibility of parole plus a 10-year consecutive sentence for the
prior convictions; as to count 2 the prison sentence was stayed.
In January 1987, we affirmed Roberson’s conviction. (People v.
Roberson (Jan. 30, 1987, B016043) [nonpub. opn.].)2
Roberson argues that because the felony murder rule in
1985 allowed for a first degree murder conviction without a
finding of malice aforethought, the petition was wrongly denied.
We conclude that because the record of conviction conclusively
demonstrates Roberson was the actual killer, he is ineligible for
relief as a matter of law. We therefore affirm.
BACKGROUND
In the prior opinion on Roberson’s direct appeal, this court
described the facts of the case as follows:
“Carolyn Stanley (Stanley) and Lisa Ray (Ray) were with
Marlon Bradley (Bradley) in his customized Chevrolet convertible
in the late evening hours of August 7, 1983. Bradley was in the
1 All further statutory references are to the Penal Code.
2We augmented the record at Roberson’s request to include
the appellate opinion.
2
driver’s seat, Stanley in the passenger seat with Ray standing
outside the car when a person identified as Roberson came up to
Bradley and said, ‘Get out of the car, man.’ When Bradley said
no, Roberson pulled out a gun and fired one shot at close range.
“Bradley jumped out while Stanley rolled out of the
Chevrolet as Roberson started driving the car. Bradley expired
from the bullet wound that entered his upper back and went
through the heart.
“The prosecution case rested primarily on the positive
identification of Roberson by Stanley and the testimony of
Stanley Tyrone Greene (Greene), Robert Sanders (Sanders) and
Don Roberson (Don).
“Greene testified he was with Roberson when Roberson saw
Bradley’s car and stated he had to have it. Roberson exited his
vehicle with a gun despite Greene’s objection that he, Greene,
knew Bradley and his brother. He believed Roberson was going
to take the car but did not expect any shooting. After Greene
heard the one shot, he saw Bradley’s car drive off without its
lights on. Greene then drove Roberson’s car to his house where
Roberson was changing a tire on the Bradley vehicle. Roberson
said he had to shoot that fool because he called him a punk and
wouldn’t get out.
“The next day both Greene and Roberson returned to work
on the Bradley car. Don, appellant’s uncle came over with
Sanders after he was told by Roberson that he had ‘knocked a G’
(i.e., stolen a car). Sanders was interested in spare parts for his
own inoperative Chevrolet. While Roberson and Greene were
dismantling the Bradley car, Sanders overheard appellant tell
Don that he had shot the victim when Bradley called him a punk
and hesitated at his order to exit the convertible. In addition,
3
Roberson demonstrated how he held the gun in his outstretched
right hand with his left hand supporting his right when he shot
Bradley. Don in his testimony denied this conversation and
demonstration ever occurred.
“A day or two later, Roberson was told by Greene that
Bradley had died. Roberson appeared shocked but said nothing.
Don was close by and asked Roberson what happened. Appellant
responded that when some fool tried to draw down on him, he got
off first.
“In his defense Roberson testified that he was at a
relative’s house that evening with Rufus Terrell and had lent his
car to Greene around 8:00 p.m. Greene returned at 10:30 p.m.
driving Bradley’s Chevrolet, with an unknown male black driving
Roberson’s car. Terrell substantiated the alibi defense. In
addition to this evidence, Paul Smith [fn. omitted] testified that
he knew Greene and had sold drugs with him for approximately
five months. During this time period Greene confided in Smith
and told him he had accidentally shot someone and accused
Roberson of the charge because he couldn’t do time.”
On February 26, 2020, Roberson filed a habeas corpus
petition in the superior court and attached a pre-printed
section 1170.95 petition, marking the box requesting that counsel
be appointed. The trial court deemed the habeas petition
sufficient for purposes of review under section 1170.95. Roberson
asserted the jury was instructed on the felony-murder theory of
liability, which is no longer a basis for conviction of first degree
murder; that he did not act with intent to kill; that he was not a
major participant in the felony and did not act with reckless
indifference to human life. Roberson did not check the box that
he was not “the actual killer.”
4
On March 24, 2020, the trial court reviewed the petition.
Counsel was not appointed, and Roberson was not present. The
trial court denied the petition, finding that Roberson was the
actual killer and that the jury found true he personally used a
firearm and committed the killing in the course of the robbery
with the intent to kill.3
DISCUSSION
Senate Bill No. 1437 was enacted 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(f); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this by amending
section 188, subdivision (a)(3), to require that all principals to
murder must act with express or implied malice to be convicted of
that crime, unless they are convicted of felony murder under
3 The minute order stated, “On July 8, 1985, a jury found
defendant guilty of on[e] count of first degree murder in violation
of . . . section 187[, subdivision] (a) and one count of robbery in
violation of . . . section 211. The jury further found true as to
each count the defendant personally use[d] a firearm within the
meaning of . . . section 12022.2 and found true a special
circumstance allegation pursuant to . . . section 190.2[,
subdivision] (a)(17) to be true. . . . [¶] A review of the file
indicates that the defendant was the person who killed Marlon
Bradley, the decedent in this case. Pursuant to . . . section 189[,
subdivision] (e)(1), he is not entitled to relief. The petition is
denied.”
5
section 189, subdivision (e). For felony murder convictions under
section 189, subdivision (e), Senate Bill No. 1437 requires that
the defendant be the actual killer, an aider and abettor to the
murder who acted with intent to kill, or a major participant in
the underlying felony who acted with reckless indifference to
human life. (Stats. 2018, ch. 1015, § 3.)
In Lewis, supra, 11 Cal.5th at page 956, our Supreme Court
held that “the statutory language and legislative intent of
section 1170.95 make clear that [a petitioner is] entitled to the
appointment of counsel upon the filing of a facially sufficient
petition [citation] and that only after the appointment of counsel
and the opportunity for briefing may the superior court consider
the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’ ”
Here, the People concede that the trial court erred in not
appointing counsel. However, Lewis, supra, 11 Cal.5th at
pages 957 to 958 held that “the deprivation of . . . counsel under
subdivision (c) of section 1170.95 was state law error only, and
tested for prejudice under People v. Watson (1956) 46 Cal.2d 818.”
Lewis makes clear there is no prejudice if the petitioner is
ineligible for relief as a matter of law. This occurs when the
record of conviction shows that he could not have been convicted
under any theory of liability affected by Senate Bill No. 1437—
such as where the petitioner is the actual killer. “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.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)
6
Appellate opinions are considered a part of the record of
conviction. (Ibid.)
Roberson was charged with first degree murder, and the
jury was instructed on the felony murder theory of liability for
murder. Roberson correctly argues that under the felony-murder
rule in place at the time of his conviction in 1985, he could be
convicted of first degree murder without a finding of intent to kill.
However, section 1170.95 makes clear that relief does not extend
to defendants who were actual killers, with or without malice.
Our review of the appellate record makes it clear that
Roberson was the actual killer. At trial, the prosecution theory
was that Roberson acted alone and killed the victim in the course
of a robbery. The evidence presented showed that the victim died
from a single gunshot wound. Because the jury found that
Roberson had personally used a firearm, it follows ineluctably
that Roberson fired the gun and was the actual killer.
Additionally, in his direct appeal, Roberson never argued that the
evidence was insufficient to uphold any of the jury verdicts.
Moreover, in his petition, Roberson did not mark the box that he
was not the actual killer; as noted, his focus was on the now
abrogated felony-murder theory in place in 1985.4 Finally, at the
time of Roberson’s conviction in 1985, a felony-murder special
circumstance required the jury to find an intent to kill. The jury
was specifically instructed that “for the special circumstance to
be found true, you need to make another finding which is that
4 In his petition, Roberson states that his “foremost
argument . . . is that none of the circumstances in this matter
points to the now requisite ‘malice aforethought’ to prove
intentful homicide.”
7
Mr. Roberson . . . intended to kill at the time he committed the
killing.”
Roberson argues that “[c]ounsel could have assisted [him]
in asserting a prima facie factual case that his conviction for
murder fell within the provisions of [Senate Bill No.] 1437.” We
disagree. There is no prejudice where the “record of
conviction . . . conclusively establishes . . . the requisite acts
and . . . intent.” (People v. Rivera (2021) 62 Cal.App.5th 217,
230.)
Roberson does not explain how he might conceivably
establish prejudice, given the jury’s findings. It is not enough to
baldly state that the “record showed a disputed issue requiring
an evidentiary hearing.” The only disputed issue was resolved by
the jury in 1985 when they determined that Roberson was the
actual killer.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
HILL, J.*
We concur:
EDMON, P. J. EGERTON, J.
*Judge of the Superior Court of Santa Barbara County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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