People v. Robles CA2/3 ( 2021 )

Filed 9/27/21 P. v. Robles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306498
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA059334-01
v.
DAVID ROBLES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James Richard Dabney, Judge. Affirmed.
Carlo A. Spiga for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
David Robles appeals from the superior court’s order
denying his petition under Penal Code section 1170.95.1 That
statute allows certain defendants convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine to petition the court to vacate their convictions and for
resentencing. Here, the trial court—without appointing counsel
or inviting briefing—found Robles had failed to demonstrate his
entitlement to relief. Because the record of conviction establishes
Robles is ineligible for resentencing as a matter of law, any errors
the superior court committed were harmless. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The crimes, convictions, and appeal
In 2006, the People charged Robles, along with his
co-defendant Jessie Garcia, with the murders of Michael Juarez
and Anthony Juarez, as well as the attempted murders of
Matthew Vaughn and Frank Juarez. The People alleged the
murders were “a special circumstance within the meaning of
Penal Code Section 190.2(a)(3),” multiple murder. The People
also alleged the defendants committed the crimes for the benefit
of, at the direction of, or in association with a criminal street
gang and—as to Garcia—that a principal used and discharged
a firearm causing death or great bodily injury to the victims.
The People alleged Robles had several prior strikes, including
robbery, assault with a deadly weapon, and false imprisonment
with a gun.
As the facts of Robles’s crimes are irrelevant to our
analysis, we summarize them only briefly.2
1 References to statutes are to the Penal Code.
2 On May 19, 2021, we granted the Attorney General’s
motion for the court to take judicial notice of the file in Robles’s
direct appeal, People v. Robles et al. (Feb. 25, 2014, B232828)
2
Robles and Garcia were cousins, roommates, and gang
members. Frank Juarez had a clothing store in Santa Monica;
his co-owner, Arturo Arce, was a gang member. On October 27,
1998, Frank was at the store preparing for its grand opening.
His cousins Michael and Anthony Juarez were with him,
along with an acquaintance, Matt Vaughn. “Just before noon,
three masked men entered the store and fired multiple rounds”
“randomly.” The gunmen then “fled to a waiting car.” (Robles I.)
Michael had been shot 13 times and died. “Anthony,
who had suffered five gunshot wounds, was still breathing
but died minutes later.” Frank and Vaughn both were wounded
but survived. (Robles I.)
Witnesses at a fast food restaurant across the street
“heard multiple gunshots fired in rapid succession” and saw
three men, wearing long coats and carrying long guns, come
out of the store and run to a waiting car that sped away.
Robles later was identified as the driver. (Robles I.)
The case went to trial in 2011.3 The trial court instructed
the jury on direct aiding and abetting (CALJIC Nos. 3.00 and
[nonpub. opn.] (Robles I). As the truth of the facts of the crimes
recited in Robles I are not necessary for our resolution of
this appeal, we summarize them only for the basis of Robles’s
conviction. (See People v. Woodell (1998) 17 Cal.4th 448,
459-460.)
3 Authorities apparently didn’t solve the crime for some
number of years. The day after the Santa Monica shooting, police
arrested Robles and Garcia on unrelated charges. They were
convicted and sentenced to prison. DNA testing in 2002 and 2004
revealed the presence of Robles’s and Garcia’s DNA on a knit cap
that fell to the ground as the shooters fled to the waiting car.
In 2006 and 2007, police conducted further interviews—as well
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3.01) and first and second degree murder (CALJIC Nos. 8.00,
8.10, 8.20, and 8.30). The court’s murder instructions included
the definition of “malice aforethought” (CALJIC No. 8.11) and
the elements of second degree murder when the killing “result[s]
from [an] unlawful act dangerous to life” (CALJIC No. 8.31).
The court also instructed the jury on the special circumstance
of multiple murder. The court did not instruct the jury on the
felony-murder rule or the natural and probable consequences
doctrine.4
The jury convicted Robles and Garcia of the first degree
murders of Michael and Anthony Juarez as well as the attempted
willful, deliberate, and premeditated murders of Vaughn
and Frank Juarez. The jury found the special circumstance
allegation true.5 The trial court sentenced Robles to life without
as photographic and live line-ups—with the witnesses from
the fast food restaurant. (Robles I.)
4 On October 9, 2020, Robles filed a “Motion To Augment
Record on Appeal” with “[a]ll jury instructions submitted to
the jury in this matter, [f]iled on April 12[,] 2011” and “[a]
complete reporter’s transcript of the closing arguments of both
the prosecution and defense counsel[,] [a]rgued April 8-11, 2011.”
Robles asserted, “The need for augmentation here is compelling.”
However, on November 23, 2020, Robles filed a “Request to
Withdraw Motion to Augment Record on Appeal.” This court
granted that motion on November 25, 2020. As we noted,
we granted the Attorney General’s request to take judicial notice
of the direct appeal file in Robles I. That file of course includes
the instructions the trial court gave the jury in Robles’s trial.
5 Somewhere along the way, the People apparently replaced
the “principal . . . [used/discharged] a firearm” allegation with
allegations that Garcia personally used and discharged a firearm.
The jury found those allegations as to Garcia true. (Robles I.)
4
the possibility of parole on the Anthony Juarez murder, 25 years
to life on the Michael Juarez murder, and seven years to life
on each of the attempted murders, all to be served consecutively.
We affirmed Robles’s conviction. (Robles I.)
2. The section 1170.95 petition
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) took effect, Robles filed a document entitled “Petition
for Resentencing (PENAL CODE § 1170.95).”6 The petition
essentially recited the language of the statute, including these
statements: “[T]he jury returned a verdict convicting me of
two counts of 1st degree murder and two counts of attempted
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine,” and “I did not, 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.” Robles “request[ed] that this court appoint counsel
for me during this resentencing process.” Robles signed
the petition, stating he declared the petition was “true except
as to that stated on information or belief or that which is
a legal conclusion and as to those, I believe them to be true.”
The petition had no attachments or exhibits.
The trial court did not appoint counsel for Robles. On
May 5, 2020, the court issued a minute order denying Robles’s
petition. The court stated, “Petitioner claims that he was
convicted on the natural and probable consequences theory.
6 Although filed in pro per, the petition appears to have
been prepared by counsel. It is dated November 26, 2019.
Two proofs of service appear in the record, one signed by an
Andre Ramnanan, dated March 24, 2020, and one signed by
Robles, dated November 26, 2019. A date stamp reflects the
Los Angeles Superior Court filed the petition on April 21, 2020.
5
The record of conviction, however, belies that claim. The jury
was not instructed on either felony-murder or the natural
and probable consequence[s] doctrine.”
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437 took effect on January 1, 2019. (See
Stats. 2018, ch. 1015, § 4.) It limited accomplice liability
under the felony-murder rule and eliminated the natural and
probable consequences doctrine as it relates to murder, to ensure
a person’s sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830,
842-843 (Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971
(Lewis).)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e). It provides that a participant
in the perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as
a direct aider and abettor; or (3) was a major participant
in the underlying felony and acted with reckless indifference
to human life as described in section 190.2, subdivision (d).
(See Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby individuals convicted of murder under a
now-invalid felony-murder or natural and probable consequences
theory may petition to vacate their convictions and be
resentenced. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
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charged with murder by means of a charging document that
allowed the prosecution to proceed under a theory of felony
murder or under the natural and probable consequences doctrine,
(2) he must have been convicted of first or second degree murder,
and (3) he could no longer be convicted of first or second degree
murder due to changes to sections 188 and 189 effectuated by
Senate Bill 1437. (§ 1170.95, subd. (a).)
Senate Bill 1437 also authorized, through new section
1170.95, an individual convicted of felony murder or murder
based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and
be resentenced on any remaining counts if he could not have
been convicted of murder because of Senate Bill 1437’s changes
to the definition of the crime. (See Lewis, supra, 11 Cal.5th
at pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he
was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c) requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he is entitled
to relief. (See Lewis, supra, 11 Cal.5th at pp. 959-960.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he falls
within the provisions of section 1170.95 and is entitled to relief,
the superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th
at p. 971.) However, “the prima facie inquiry under [section
1170.95,] subdivision (c) is limited. Like the analogous prima
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facie inquiry in habeas corpus proceedings, ‘ “the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled
to relief if his or her factual allegations were proved. If so,
the court must issue an order to show cause.” ’[7] . . . ‘However,
if the record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” then the
court is justified in making a credibility determination adverse
to the petitioner.’ ” (Ibid.; see People v. Daniel (2020) 57
Cal.App.5th 666, 675, review granted Feb. 24, 2021, S266336
[any error in denying petition at prima facie stage without
appointing counsel is harmless if the record of conviction
“ ‘conclusively demonstrate[s]’ ” petitioner is ineligible for relief].)
2. The Error in Denying Robles’s Petition Without
Appointing Counsel Was Harmless
In People v. Lewis, supra, 11 Cal.5th 952, the Supreme
Court, resolving a disagreement among the courts of appeal
and agreeing with the analysis in People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684,
held, once a petitioner files a facially sufficient petition
requesting counsel, the superior court must appoint counsel
before performing any prima facie review under section 1170.95,
subdivision (c): “[P]etitioners who file a complying petition
requesting counsel are to receive counsel upon the filing
of a compliant petition.” (Lewis, at pp. 961-963.) Because
Robles recited the language of the statute in his petition,
7 The court then holds an evidentiary hearing at which the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)
8
the superior court erred by denying his petition without first
appointing counsel.
The Lewis Court, however, also held a superior court’s
failure to appoint counsel to represent a petitioner when
assessing whether he has made a prima facie showing of
entitlement to relief under section 1170.95, subdivision (c)
is state law error only, reviewable for prejudice under the
harmless error standard of People v. Watson (1956) 46 Cal.2d
818. (Lewis, supra, 11 Cal.5th at pp. 973-974.)
Here, Robles is ineligible for relief under section 1170.95
as a matter of law. To be eligible for resentencing, Robles was
required to show that he “could not be convicted of first or second
degree murder because of changes to Section 188 or 189” made by
Senate Bill 1437. (§ 1170.95, subd. (a)(3).) The jury instructions
given at Robles’s trial conclusively demonstrate he cannot make
that showing. “[P]otential relief under section 1170.95 extends
only to those convicted of murder by operation of the natural
and probable consequences doctrine or of felony murder.”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), review
granted Sept. 23, 2020, S263939; see also People v. Lee (2020)
49 Cal.App.5th 254, 263-265, review granted July 15, 2020,
S262459.) Where the record shows, as a matter of law, that
the petitioner was not tried under either of those theories,
he necessarily was convicted on a theory that survives the
changes to sections 188 and 189 enacted by Senate Bill 1437.
Robles’s jury was not instructed on either the natural
and probable consequences doctrine or the felony-murder rule.
Therefore, he could not have been convicted based on either
of those theories. (See, e.g., Soto, supra, 51 Cal.App.5th at
pp. 1054-1055 [trial court may rely on jury instructions when
determining whether petitioner has made a prima facie
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showing of entitlement to relief]; cf. People v. Nguyen (2020)
53 Cal.App.5th 1154, 1157, 1167-1168 [petitioner not entitled
to relief where he was convicted as direct aider and abettor,
and not of felony murder or murder under a natural and
probable consequences theory].)8 Because there is no reasonable
probability Robles would have obtained a more favorable result
had counsel been appointed and given the opportunity to file a
memorandum supporting the petition, the court’s error in failing
to appoint counsel was harmless. (See People v. Watson, supra,
46 Cal.2d at p. 836 [an error violating only California law is
harmless unless “it is reasonably probable that a result more
favorable to the appealing party would have been reached
in the absence of the error”].)
8 Robles refers to “Caljic 8.01, Malice Aforethought
Express/ Implied Malice defined [sic].” The instruction, he says,
“contain[s] natural consequences language which could easily
be misstated in closing argument.” Robles’s jury was not given
CALJIC No. 8.01 (which may have had to do with a presumption
of a lawful killing if the victim died more than three years and
a day after the cause of death was administered). Perhaps Robles
means to refer to CALJIC No. 8.11. That instruction—entitled
“ ‘Malice Aforethought’—Defined,” was given to Robles’s jury.
In defining “implied malice,” the instruction states, as one of
the required elements, “The natural consequences of the act
are dangerous to human life.” The court in People v. Soto, supra,
51 Cal.App.5th 1043, explained the difference between “natural
consequences” as used in the definition of implied malice in
CALJIC No. 8.11, and the natural and probable consequences
doctrine. (Soto, at pp. 1056-1058.) “[T]hey are distinctly different
concepts.” (Id. at p. 1056.)
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DISPOSITION
We affirm the superior court’s postjudgment order denying
David Robles’s petition to vacate his murder conviction and
for resentencing under Penal Code section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
THOMAS, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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