People v. Robinson CA2/7 ( 2022 )

Filed 5/17/22 P. v. Robinson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312651
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA008895)
v.
ERIC FRANK ROBINSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jesse I. Rodriguez, Judge. Reversed and
remanded with directions.
Benjamin Owens, 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, Daniel C. Chang and Michael J. Wise, Deputy
Attorneys General for Plaintiff and Respondent.
_________________
Eric Frank Robinson appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.951 as to his 1994 conviction of felony murder. The
People concede and we agree the superior court erred in failing to
appoint counsel for Robinson and in engaging in premature
factfinding in concluding Robinson was ineligible for relief
without issuing an order to show case and holding an evidentiary
hearing. We reverse the order denying Robinson’s petition and
remand with directions for the superior court to appoint counsel
for Robinson, issue an order to show cause, and conduct further
proceedings pursuant to section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We summarized the evidence at trial in our opinion in
People v. Brooks, et al. (Dec. 23, 1996, B085183) [nonpub. opn.]
(Brooks, supra, B085183) (footnote omitted):
“[Roberta] Brooks and Robinson were involved in a
fraudulent scheme to obtain student loan funds. They recruited
individuals to lend their names to false student loan applications
to attend a trade school. When the student loan was approved,
Robinson would receive the check at the school. The check was
then given to the ‘student’ to cash and the proceeds distributed
among the various individuals involved in the scheme. Besides
Robinson and Brooks, participants in the scheme included James
Coulter, two sisters, Denisa and Latisha Jones, and J’Neane
Griffie.
1 All undesignated statutory references are to the Penal
Code.
2
“Griffie recruited Rachel Jones to act [as] an applicant for a
student loan. When Robinson received a $4,000 loan check
payable to Rachel he instructed her to cash the check and bring
the proceeds to him at a motel room. Rachel, accompanied by
Griffie, cashed the check but before the two women could get to
the motel they were robbed. Griffie called the motel room to
report the robbery and spoke to Denisa who was waiting there for
the money along with Latisha, Coulter, Robinson and Brooks.
Denisa told Griffie and Rachel to come to the motel to explain
what happened.
“When Griffie and Rachel arrived at the motel room,
Robinson met them at the door with a gun in his hand. He
grabbed the women, threw them to the floor and started hitting
them with wire coat hangers shouting ‘Where’s the money?’
Griffie told Robinson she and Rachel had been robbed. Latisha,
who lived in the motel room, told Robinson and Coulter to leave
because she was afraid someone might call the police.
“After Robinson and Coulter left, Latisha and Denisa told
Griffie and Rachel the men had stripped them and taken their
jewelry. They wanted Griffie and Rachel to go with them to find
Robinson and Coulter and get their jewelry back.”
The four women and Brooks got into two cars and drove off
to find Robinson and Coulter. After driving around, they learned
Robinson and Coulter were at a motel in Lynwood. The women
went to the motel room. Once inside, the four women were forced
to engage in various sex acts with each other and Robinson,
Coulter, and Brooks. Robinson and Coulter then allowed Denisa
and Latisha to leave, and the men told Griffie and Rachel to get
dressed. Coulter gave his gun to Brooks and told her to watch
Griffie and Rachel while he talked to Robinson. Brooks pointed
the gun at Griffie and Rachel and asked if they loved each other
and whether they were ready to die. Coulter then told Griffie
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and Rachel to forget what had happened in the motel room and
not to go to the police. Griffie and Rachel promised to obey his
instructions. Robinson led Griffie outside while Brooks continued
to guard Rachel.
Brooks gave the gun to Robinson, and Brooks cleaned the
room of fingerprints and other evidence. Brooks, Robinson, and
Rachel then left the hotel room and walked to Robinson’s car.
Coulter was already sitting in the front passenger seat, and
Griffie was in the back seat. Robinson and Brooks pushed Rachel
into the trunk and closed it. Robinson drove away, with Brooks
and Coulter in the front seat and Griffie in the back. Robinson
started to drive toward Latisha’s motel, but Coulter pointed or
gestured with the gun at Robinson and directed Robinson to drive
in a different direction.
After driving for some time, Robinson stopped the car in a
dark, vacant lot in Compton. Robinson let Rachel out of the
trunk and said in a kind voice, “Come on with me, honey: Don’t
worry about nothing.” Rachel pleaded for her life, but Robinson
told her to kneel down. Robinson then brought Griffie over and
told her to kneel next to Rachel. While Rachel was starting to
pray, Coulter shot her. Then Griffie started screaming, and
Coulter shot her. The two men and Brooks drove away. Griffie
died of a gunshot wound, but Rachel survived.
B. The Verdict and Appeal
The jury convicted Robinson of the first degree murder of
Griffie (§ 187), the attempted murder of Rachel (§§ 187, subd. (a),
664), and multiple sex crimes.2 The jury found true the special
2 At our request, the Attorney General’s office submitted the
jury instructions from the trial. On our own motion we take
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circumstance the murder was committed in the commission of a
kidnapping (§190.2, subd. (a)(17)). The jury also found true as to
the murder and attempted murder counts that Robinson was
armed with a firearm (§12022, subd. (a)(1)). The jury convicted
codefendant Brooks of rape and other sex crimes. (Brooks, supra,
B085183.)
On appeal, we reversed the kidnapping special
circumstance and otherwise affirmed the judgment as to
Robinson. (Brooks, supra, B085183.) In reversing the special
circumstance, we concluded, “The one reasonable inference is
that while in the motel room Robinson and Coulter formed the
intent to kill Griffie and Rachel and transporting them to an
isolated location was ‘merely incidental’ to the murder.” (Ibid.)
In 2017, after resentencing, the superior court sentenced
Robinson to 26 years to life in state prison.
C. Robinson’s Petition for Resentencing
On March 22, 2021 Robinson, representing himself, filed a
petition for resentencing and supporting declaration seeking to
vacate his murder conviction and be resentenced in accordance
with recent statutory changes relating to accomplice liability for
murder. In his petition, Robinson declared his “first degree
murder conviction was based on a theory of felony murder and/or
a theory of murder under the natural and probable consequences
doctrine” and he “could not now be convicted of first or second
judicial notice of the jury instructions. (Evid. Code, §§ 452,
subd. (c), 459, subd. (a).) The trial court instructed the jury on
felony murder, but not the natural and probable consequences
doctrine.
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degree murder because of the changes made to Penal Code
sections 188 and 189, made effective on January 1, 2019,
pursuant to Senate Bill 1437.” He stated he was not the actual
killer and did not act with the intent to kill. Further, he was not
a major participant in the felony or did not act with reckless
indifference to human life. Robinson requested the court appoint
him counsel during the resentencing process. Robinson attached
multiple exhibits to his petition, including the felony complaint
and the verdict form on the murder count.
On April 26, 2021 the superior court summarily denied the
petition without appointing counsel for Robinson, finding
Robinson was not eligible for relief as a matter of law. The court
relied on our opinion in Brooks, supra, B085183, explaining we
found the evidence “was sufficient to support a finding of specific
intent to kill.” The court noted that on appeal we found Robinson
and Coulter had a motive to kill Griffie and Rachel, and cited our
finding in the context of the kidnapping special circumstance that
“the one reasonable inference” was that in the motel room
Robinson and Coulter formed the intent to kill Griffie and Rachel.
Robinson again appealed.
DISCUSSION
A. Senate Bill No. 1437 and Senate Bill 775
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and significantly limited the scope of the felony murder
rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People
v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) The
legislation also provided a procedure in new section 1170.95 for
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an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Lewis, at p. 959; Gentile, at p. 847.)3
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1170.95,
subdivision (b)(3). Further, upon the filing of a facially sufficient
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1170.95,
subd. (c).) Where a petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1170.95
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).)
3 Section 1170.95, subdivision (a), as amended by Senate Bill
No. 775, now provides for relief where the petitioner was
convicted of “attempted murder under the natural and probable
consequences doctrine” and “could not presently be convicted
of . . . attempted murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a) & (a)(3).)
Robinson does not seek resentencing as to his attempted murder
conviction.
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Appellate opinions are generally part of the record of
conviction, but as the Supreme Court in Lewis cautioned, the
opinion “‘might not supply all the answers.’” (Lewis, supra,
11 Cal.5th at p. 972.) Further, “[i]n 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.’” (Ibid.) Rather, at the
prima facie review stage, the court’s review is limited to “‘readily
ascertainable facts’” in the record. (People v. Duchine (2021)
60 Cal.App.5th 798, 815.)
B. The Trial Court Committed Prejudicial Error in Denying
Robinson’s Petition for Resentencing Without Appointing
Counsel and Issuing an Order To Show Cause
Robinson contends, the People concede, and we agree the
trial court erred in failing to appoint counsel for Robinson and
summarily denying his petition based on the factual findings in
our opinion in Brooks, supra, B085183. As discussed,
under Lewis, supra, 11 Cal.5th 952, once a petitioner files a
facially sufficient petition under section 1170.95 and requests
appointment of counsel, the superior court must appoint counsel
before performing a prima facie review under section 1170.95,
subdivision (c). (Lewis, at p. 963 [“petitioners who file a
complying petition requesting counsel are to receive counsel upon
filing of a compliant petition”].) The amendments to
section 1170.95 under Senate Bill 775 likewise provide for
appointment of counsel at the prima facie review stage.
(§ 1170.95, subd. (b)(3).) Under Lewis and Senate Bill 775,
therefore, it was error for the trial court to deny Robinson’s
petition for resentencing without first appointing counsel.
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Further, as the People concede, there is nothing in the
record that shows Robinson was necessarily convicted as a direct
aider and abettor or of felony murder based on a theory he was a
major participant in the kidnappings and sex crimes and acted
with reckless indifference to human life. The superior court’s
reliance on our conclusions in the context of reversal of the
kidnapping special circumstance is improper factfinding not
appropriate at the prima facie stage of review. (Lewis, supra,
11 Cal.5th at p. 972; People v. Duchine, supra, 60 Cal.App.5th at
p. 815.) Accordingly, the superior court’s error was not harmless.
(See Lewis, at p. 974 [“[A] petitioner ‘whose petition is denied
before an order to show cause issues has the burden of showing
“it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.”’”].)
DISPOSITION
The order denying Robinson’s petition for resentencing
under section 1170.95 is reversed. We remand with directions for
the superior court to appoint counsel for Robinson, issue an order
to show cause, and conduct further proceedings in accordance
with section 1170.95, subdivision (d).
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
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