People v. Robbins CA2/2 ( 2024 )

Filed 2/20/24 P. v. Robbins CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B329423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA038199)
v.
FRANCIS ROBBINS et al.,
Defendants and Appellants.
THE COURT:
Defendants and appellants Francis Robbins (Francis) and
Serean Marshon Robbins (Serean)1 appeal from the trial court
orders denying their petitions for resentencing under Penal Code
section 1172.62 (former § 1170.95).3
1 Because defendants share the same last name, for ease,
when we refer to them individually, we use their first names. No
disrespect is intended.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
Defendants’ appointed attorneys found no arguable issues
and each filed a brief under People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo). Under the standard articulated in Delgadillo,
we decline counsel’s invitation to undertake an independent
review of the record. Instead, we evaluate the arguments that
defendants raise in their letter briefs. (Delgadillo, supra, at
pp. 231–232.) Finding none of the arguments meritorious, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Conviction and Sentence
On May 21, 2004, a jury convicted defendants of
premeditated attempted murder (§§ 664/187, subd. (a), 189). The
jury also found true findings on associated firearm enhancements
(§§ 12022.53, subds. (b)-(e)(1), 12022.5, subd. (a)) and a criminal
street gang enhancement (§ 186.22, subd. (b)(1)). The trial court
sentenced each defendant on the attempted murder conviction
with the criminal street gang allegation to an indeterminate term
of 15 years to life, plus a consecutive indeterminate sentence of
25 years to life for the firearm enhancement.
On direct appeal, we affirmed the judgment. (People v.
Robbins (Nov. 28, 2005, B176019) [nonpub. opn.].)
II. Petition for Resentencing
On September 30, 2018, the Governor signed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) in order to “amend the felony
murder rule and the natural and probable consequences doctrine,
3 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
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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).)
Effective January 1, 2019, Senate Bill No. 1437 added
former section 1170.95, subdivision (a), creating a procedure
whereby a person convicted of, as relevant here, “murder under
. . . [any] theory under which malice is imputed to a person based
solely on that person’s participation in a crime, [or] attempted
murder under the natural and probable consequences doctrine,”
but who could not now be convicted, can petition to have the
murder conviction vacated and to be resentenced. (Stats. 2018,
ch. 1015, § 4.) Effective January 1, 2022, Senate Bill No. 775
(2021-2022 Reg. Sess.) amended section 1172.6 to include
convictions of “attempted murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime.” (Stats. 2021, ch. 551, § 2.) In other words, as a result of
these statutory changes, “the natural and probable consequences
doctrine can no longer support a murder [or attempted murder]
conviction.” (People v. Offley (2020) 48 Cal.App.5th 588, 595.)
In June 2022, each defendant filed a petition for
resentencing pursuant to section 1172.6. The trial court
appointed counsel; the People filed an opposition; and defense
counsel filed a reply brief.
On March 1, 2023, the trial court denied their petitions on
the grounds that they failed to state a prima facie case. Each
defendant timely filed a notice of appeal.
3
Defendants’ appointed counsel each filed a brief pursuant
to Delgadillo, supra, 15 Cal.5th at page 231 raising no issues.
We then directed counsel to notify each defendant of his
counsel’s brief and gave each defendant leave to file his own brief
or letter stating grounds for appellate relief.
On December 15, 2023, Francis filed a supplemental brief.
On January 16, 2024, Serean filed a supplemental brief.
DISCUSSION
I. Francis’s Arguments
In his supplemental brief, Francis asserts that he is
entitled to be resentenced because (1) confusing and contradictive
instructions permitted the jury to impute malice; and
(2) appellate counsel provided ineffective assistance of counsel for
failing to make any arguments on appeal.
A. Alleged instructional error
Francis has not demonstrated instructional error. Part of
the problem with his contention on appeal is that he neglects to
identify which instructions were confusing and contradictive.
(People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [arguments
that “are bereft of factual underpinning, record references,
argument, and/or authority” require no discussion]; see also
People v. Stanley (1995) 10 Cal.4th 764, 793.) To the extent he
reiterates the argument raised by defense counsel below, his
contention fails because, as defense counsel conceded, the jury
here was not given an instruction contrary to the instruction
given regarding intent and aiding and abetting.
Francis’s reliance upon People v. Maldonado (2023)
87 Cal.App.5th 1257 is misplaced. In Maldonado, “the defendant
was convicted of first degree murder by means of lying in wait.”
(People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 932.)
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Here, there is no evidence or argument that Francis was
convicted under a lying in wait theory. Furthermore, the
Maldonado court stressed that “[d]irect aiding and abetting an
implied malice murder remains a valid theory after the
amendments of Senate Bills 1437 and 775.” (Maldonado, at
p. 1263.) And the jury here was instructed on direct aiding and
abetting, not on implied malice. There is no possibility that the
jury was confused.
B. Alleged ineffective assistance of counsel
Francis’s ineffective assistance of counsel claim is premised
on his appellate counsel’s filing of a Delgadillo brief instead of
arguing his case. “[T]he constitutional right to assistance of
counsel entitles an indigent defendant to independent review by
the Court of Appeal when counsel is unable to identify any
arguable issue on appeal.” (People v. Kelly (2006) 40 Cal.4th 106,
119.) California’s Delgadillo procedure is akin to our procedure
pursuant to People v. Wende (1979) 25 Cal.3d 436, which was
approved by the United States Supreme Court in Smith v.
Robbins (2000) 528 U.S. 259. (See Kelly, supra, at p. 118.) Under
these circumstances, Francis’s counsel did not render
constitutionally ineffective assistance simply by filing a
Delgadillo brief.
Furthermore, in considering a claim of ineffective
assistance of counsel, “a court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to grade
counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
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(Strickland v. Washington (1984) 466 U.S. 668, 697; see also In re
Crew (2011) 52 Cal.4th 126, 150.)
In light of our conclusion that the trial court correctly
determined that Francis is ineligible for relief under section
1172.6 as a matter of law, Francis has failed to demonstrate any
prejudice based upon his claim of defective representation by
appellate counsel.
II. Serean’s Argument
In his supplemental brief, Serean argues that the trial
court erred in using CALJIC No. 17.19.5 to instruct the jury.4
According to Serean, for the jury to have found the firearm
enhancement true, it must have applied the natural and probable
consequences doctrine. But this instruction has nothing to do
with the natural and probable consequences doctrine.5 Rather,
the term “natural and probable consequence” as used in the
instruction here is merely part of the explanation of what
constitutes a cause of great bodily injury. None of the other
instructions mentions the natural and probable consequences
4 The jury was told: “A cause of great bodily injury is an act
or omission that sets in motion a chain of events that produces as
a direct, natural and probable consequence of . . . the act or
omission the great bodily injury and without which the great
bodily injury would not have occurred.”
5 Under the natural and probable consequences doctrine,
“[a]n aider and abettor is guilty not only of the intended, or
target, crime but also of any other crime a principal in the target
crime actually commits (the nontarget crime) that is a natural
and probable consequence of the target crime.” (People v. Smith
(2014) 60 Cal.4th 603, 611.)
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doctrine or suggests that the jury could find Serean guilty of
attempted murder on that basis.
Furthermore, the jury was instructed that if it found
Serean guilty of attempted murder, it must further determine the
truth of the firearm allegations. Because CALJIC No. 17.19.5
instructed that the jury not even consider the gun enhancement
allegation unless and until it found Serean guilty of attempted
murder, there is no reasonable likelihood that the jury
interpreted the gun enhancement instruction to allow it to
convict Serean pursuant to the natural and probable
consequences doctrine.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
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