People v. Robinson CA1/5 ( 2021 )

Filed 12/23/21 P. v. Robinson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A161994
v.
DWAYNE ROBINSON, (Alameda County
Super. Ct. No. HC162995-
Defendant and Appellant.
1, 162995)
Dwayne Robinson appeals from an order denying a petition
seeking resentencing under Penal Code section 1170.95.1 We
affirm. The trial court should have appointed counsel before
ruling on the motion, but given the record of conviction, the error
was harmless.
I. BACKGROUND
In 2009, appellant fired several shots at a rival group
outside a restaurant, killing one of their members. He was
convicted of second-degree murder with enhancements for
personal use of a firearm and assault with a firearm. (§§ 187,
subd. (a), 245, subd. (a)(2), 12022.5, subd. (a), 12022.53, subds.
1 Further references are to the Penal Code.
1
(b)–(d).) We affirmed the judgment in an unpublished opinion.
(People v. Robinson (Oct. 8, 2013, A133703) [nonpub. opn.].)
After the judgment in appellant’s case became final, the
Legislature enacted Senate Bill 1437, which amended the law
relating to accomplice liability for murder by eliminating the
natural and probable consequences doctrine as a basis for finding
an aider and abettor guilty of murder and by significantly
narrowing the scope of felony-murder. (§§ 188, subd. (a)(3), 189,
subd. (e)(3); People v. Gentile (2020) 10 Cal.5th 830, 842–843,
(Gentile).) Section 188, subdivision (a)(3) now provides, “Except
[for felony-murder liability] as stated in subdivision (e) of Section
189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.’ ”
Under section 189, subdivision (e), a murder conviction under a
felony murder theory is appropriate only when the defendant was
the actual killer or an aider and abettor who acted with an intent
to kill or was a “major participant in the underlying felony and
acted with reckless indifference to human life.” (§ 189, subd.
(e)(1)–(3).)
Senate Bill 1437 also enacted section 1170.95, under which
an individual convicted of murder based on the natural and
probable consequences doctrine or the felony murder rule can
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if a murder conviction
would have been inappropriate because of Senate Bill 1437’s
changes to the definition of murder.
2
In 2020, appellant filed a petition for a writ of habeas
corpus seeking to be resentenced under the provisions of section
1170.95. He argued that he was convicted of second-degree
murder under an implied malice theory, a theory under which he
could no longer be convicted because it allowed the jury to impute
malice based on the commission of another crime.
The superior court construed the habeas petition as a
petition for resentencing under section 1170.95, and denied that
petition without first appointing counsel, holding an evidentiary
hearing or calling for a response from the People. The court
stated in its written order that the record of conviction
established that appellant was convicted as the actual shooter
and rejected the argument that implied malice was the
equivalent of aiding and abetting liability under the natural and
probable consequences doctrine. Appellant therefore had not
established a prima facie case for entitlement to relief under
section 1170.95.
II. DISCUSSION
Appellant argues that the court erred in denying the
petition without appointing counsel and in considering the record
of conviction in doing so. We conclude that while the court should
have appointed counsel before considering the record of
conviction, the court is not barred from considering the record on
conviction in assessing whether the defendant made a prima facie
case for relief, and that in light of the record here, the failure to
appoint counsel was harmless.
3
In People v. Lewis (2021) 11 Cal.5th 952, 957, our Supreme
Court resolved a split that had developed in the Courts of Appeal
regarding the entitlement to counsel and consideration of the
record of conviction under section 1170.95. The Court concluded
that if the section 1170.95 petition contains all the required
information, including a declaration that the petitioner was
convicted of murder and is eligible for relief, the court must
appoint counsel to represent the petitioner if requested. (Ibid.)
It is only after the appointment of counsel and the opportunity for
briefing that the superior court should consider whether the
petitioner has made a prima facie showing of entitlement to
relief, at which point the record of conviction may be considered.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at p. 957, 970–971.)
The People agree that appellant’s petition was facially
sufficient and that the trial court erred in summarily denying it.
But they argue that in this case the error was harmless. Under
Lewis, the failure to appoint counsel when the defendant has
filed a facially sufficient section 1170.95 petition is state law
error only, reviewable for prejudice under the harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836.
(Lewis, supra, 11 Cal.5th at pp. 972–974.) We ask whether it is
“ ‘ “reasonably probable that if [defendant] had been afforded
assistance of counsel [the] petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Ibid.)
Had the trial court appointed counsel, it still would have
been entitled to look to the record of conviction in determining
whether a prima facie case for relief had been made. (Lewis,
4
supra, 11 Cal.5th at pp. 970–971.) The record of conviction
included the abstract of judgment, the jury instructions and the
appellate opinion following the original judgment,2 which
revealed: (1) The prosecution proceeded solely on the theory that
appellant was the shooter; (2) appellant was found by the jury to
have personally used a firearm; (3) the jury was not instructed on
either felony murder or the natural and probable consequences
doctrine; and (4) the jury was not instructed on any theory of
aiding and abetting. Thus, the record of conviction would have
established that appellant was ineligible for relief under section
1170.95 as a matter of law, and the appointment of counsel would
not have changed this result. (People v. Mancilla (2021) 67
Cal.App.5th 854, 864 (Mancilla).)
In his petition below, appellant suggested that he had
established a prima facie case for relief under section 1170.95
because he could have been convicted of murder under an implied
malice theory. Appellant suggested that implied malice murder
was equivalent to liability under the natural and probable
consequences doctrine, which is now prohibited under Senate Bill
1437. Appellant does not explicitly pursue this claim on appeal,
although he refers to it in his statement of appealability and his
statement of the facts. The failure to state this argument under
2 Although appellant argues the trial court could not
consider the prior appellate opinion as part of the record of
conviction in determining whether a prima facie case had been
established, this argument was rejected in Lewis, at least so long
as the trial court does not engage in “ ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Lewis, supra,
11 Cal.5th at pp. 971–972.)
5
a separate heading or subheading forfeits the argument on
appeal (Consolidated Irrigation Dist. v. City of Selma (2012) 204
Cal.App.4th 187, 201), but in any event the claim fails on the
merits.
The jury was instructed on both express and implied
malice: “There are two kinds of malice aforethought, express
malice and implied malice. Proof of either is sufficient to
establish the state of mind required for murder. [¶] The
defendant acted with express malice if he intended unlawfully to
kill. [¶] The defendant acted with implied malice if: [¶] 1. He
intentionally committed an act; [¶] 2. The natural and probable
consequences of the act were dangerous to human life; [¶] 3. At
the time he acted, he knew his act was dangerous to human life;
[¶] AND [¶] 4. He deliberately acted with conscious disregard
for human life.”
Although the “natural and probable consequences”
language of the instructions is seemingly similar to the natural
and probable consequences doctrine, these are two “distinctly
different concepts.” (People v. Soto (2020) 51 Cal.App.5th 1043,
1056, abrogated on another ground by Lewis, supra, 11 Cal.5th at
p. 967 (Soto)3; see also Gentile, supra, 10 Cal.5th at p. 850
[drawing distinction between defendant who personally possesses
3 Soto was previously granted review and briefing was
deferred pending the Court’s decision in Lewis. On November 17,
2021, the Supreme Court dismissed review and remanded the
matter back to the Court of Appeal. The order provides, “As
specified by rule 8.1115(e)(2) of the California Rules of Court,
pursuant to this order the Court of Appeal’s opinion, filed July 9,
2020, which appears at 51 Cal.App.5th 1043, is non-citable and
6
implied malice and imputation of malice to aider and abettor
under natural and probable consequences doctrine]; Mancilla,
supra, 67 Cal.App.5th at p. 870 [defendant not entitled to relief
under section 1170.95 when convicted of provocative act murder
based on implied malice]; People v. Roldan (2020) 56 Cal.App.5th
997, 1004, review granted Jan. 19, 2021 (S266031) [Senate Bill
1437 “removed the natural and probable consequences doctrine
as a basis for a murder conviction only insofar as it applied to
aider and abettor liability” and did not affect a direct
perpetrator’s liability for implied malice murder].)
To be convicted of murder, a direct perpetrator must act
with express or implied malice. (Soto, supra, 51 Cal.5th at
p. 1056–1058.) In contrast, an accomplice whose liability for
murder is premised on the natural and probable consequences
doctrine “need only intend to aid a different, less serious ‘target’
crime,” the natural and probable consequence of which is murder.
(Id. at p. 1057) Thus, an accomplice who was convicted of murder
under the natural and probable consequences theory has had
malice imputed based on the commission of another crime; a
direct perpetrator of implied malice murder has not. (§ 188,
subd. (a)(3).)
nonprecedential ‘to the extent it is inconsistent with’ our decision
in Lewis.” (People v. Soto (Nov. 17, 2021, No. S263939).) The
principle for which Soto is cited here—that implied malice is not
the equivalent of the natural and probable consequences doctrine
for purposes of Senate Bill 1437—is not inconsistent with Lewis.
7
III. DISPOSITION
The judgment (order denying petition under section
1170.95) is affirmed.
8
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Robinson / A161994
9