People v. Roberts CA2/3 ( 2024 )

Filed 9/26/24 P. v. Roberts 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B328834
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA007808)
v.
ANTONIO ROBERTS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert G. Chu, Judge. Affirmed.
John Lanahan, 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, Stephanie C. Brenan and Gabriel Bradley,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 1996, a jury convicted Antonio Roberts of special
circumstance first degree murder and of second degree robbery.
Years later, he petitioned for resentencing under Penal Code1
section 1172.6, which limited accomplice liability for murder.
The trial court denied the petition without holding an evidentiary
hearing, finding that based on the jury’s true finding on the
special circumstance allegation, Roberts was convicted as either
the actual killer or as a direct aider and abettor with the intent to
kill. Roberts appeals, contending that the special circumstance
finding does not render him ineligible for relief as a matter of
law. We disagree and affirm the order.
BACKGROUND
I. The felony complaint and evidence at trial2
A felony complaint charged Roberts with the special
circumstance murder of Sung Hee Hwang (§§ 187, subd. (a),
190.2, subd. (a)(17) [murder committed during robbery]; count 1)
and with second degree robbery (§ 211; count 2). Two of Roberts’s
1
All further statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
We grant Roberts’s request for judicial notice of the
appellate record in the case on direct appeal, People v. Roberts
(July 1, 1998, B110600) [nonpub. opn.]. (Evid. Code, § 452,
subd. (d); see People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis)
[appellate opinion generally part of record of conviction in
§ 1172.6 proceedings].) To the extent we rely on the opinion in
Roberts’s prior appeal, we do so solely for procedural facts.
(§ 1172.6, subd. (d)(3).)
2
accomplices, Tyrran Wilson3 and Walter Johnson, testified
against him at trial. A third accomplice, Damian Hunter, did not
testify. The following evidence was adduced at Roberts’s trial.
A. The robbery and murder
On the afternoon of February 18, 1994, Maria Klupp was at
Charlie’s Jewelry Store. Hwang owned the jewelry store. While
at the jewelry store, Klupp saw a Black man in the store and, five
minutes later, she saw another Black man enter. One of the men
had a “kind of wrench, like they use to open keys” in his pocket.
Klupp went to another store in the strip mall, but she heard
screams and somebody said the jewelry store was being robbed.
Around the time of the murder, Daniel Houfek was driving
near Charlie’s Jewelry Store. Houfek saw three Black men
running to a car parked just north of the jewelry store. A fourth
man was standing at the parked car. All four men got into the
car and left. Houfek thought that one man might have had a
gun.
Hwang was dead, having been shot three times, including
once to the chest. Jewelry was missing.
Law enforcement recovered potato pieces and .22-caliber
rifle shell casings from the jewelry store. Roberts’s and Hunter’s
fingerprints were on glass display cases, and Roberts’s
fingerprint was on broken glass from a display case.4
3
Wilson is sometimes referred to as Burrell in the record.
4
According to Hwang’s girlfriend, he cleaned the jewelry
cases every night.
3
B. Roberts’s arrest and first statement about the crimes
Roberts was arrested. While Roberts was in a holding cell,
a deputy sheriff overheard him tell another inmate, “ ‘We did a
187.’ ” Roberts also said, “ ‘We went to a jewelry store’ ” and
“ ‘The dude tried to take a ring.’ ” With his right hand, Roberts
grabbed his left finger and pantomimed pulling something off a
ring finger. Roberts waved his hand in a downward motion,
started to walk away, and said, “ ‘We turned around.’ ” He
walked to the center of the cell, pushed an imaginary person to
the ground, and kicked down. After making the kicking motion,
Roberts raised his hands to shoulder height, extended his right
index finger, and said “ ‘pow.’ ” Roberts made eye contact with
the deputy sheriff and told him he was wasting his time trying to
get him for some other robbery and should instead check the
robbery that occurred on 10th Street across from the police
station.
Roberts then told a detective that the day before Hwang’s
murder, Roberts was at the jewelry store with his girlfriend to
get a ring resized. While there, he saw Hwang “flossing money,”
meaning counting money. Roberts went home and told his
friends Hunter and Johnson what he had seen. His friends
planned to rob the jewelry store and to kill Hwang. Another
friend, Wilson, taped a potato to the end of a .22-caliber rifle as a
silencer. The next day, Roberts was at the jewelry store again
with his girlfriend to get a ring resized when Johnson, Wilson,
and Hunter entered. Roberts was leaving when he saw Wilson
shoot Hwang with the rifle. Johnson, Wilson, and Hunter ran out
4
of the store and drove away in a grey Cutlass with a fourth man
who Roberts identified as “Bridle.”5
With Roberts’s help, law enforcement recovered from his
house and nearby areas .22-caliber shell casings, .22-live
ammunition, other rifles and guns, and a potato with duct tape
wrapped around it. Roberts said that the rifle used to kill Hwang
had been broken into several pieces, the rifle stock burned, and
the rifle pieces dispersed in the nearby area. He helped law
enforcement recover those pieces. A grey Cutlass was parked at
the house, and a potato was inside the car.
C. Roberts’s second statement about the crimes
While Roberts was released from custody and helping law
enforcement in their case against Johnson, Wilson, and Hunter,
he told the detective that he was more involved in planning the
robbery and murder than he had disclosed. He said that the
initial plan was for him to have a car across the street from the
jewelry store and to shoot Hwang with the rifle from across the
street. But Wilson said he wanted to do it and took the rifle.
Roberts, Wilson, and Hunter discussed putting a potato at the
end of the rifle.
D. Other witness testimony
Roberts’s girlfriend testified that on the evening Hwang
was killed, she was at Roberts’s house with him, Wilson,
Johnson, and Hunter. The men were discussing Hwang’s
murder. Roberts told her that they went inside the jewelry store
and saw an open safe. This gave them “the idea,” and Wilson
shot Hwang.
5
Law enforcement never identified or found “Bridle.”
5
Other witnesses, however, testified that Roberts, not
Wilson, was the shooter. Mishelle Burrell6 testified that Roberts
told her that he killed Hwang because Hwang was uncooperative.
Roberts also told her that he had previously robbed Hwang, but
that this time Hwang did not do what he was told and had a golf
club in his hand.7
Accomplices Johnson and Wilson also testified that Roberts
was the shooter. Both Johnson and Wilson had pleaded guilty to
robbery and agreed to testify against Roberts. Johnson testified
that it was Roberts’s idea to rob the jewelry store while Hunter
got his ears pierced. Johnson drove them to the jewelry store,
and Roberts had a .22 rifle with a potato taped to it, which was
also Roberts’s idea. Roberts and Hunter went into the store, but
only Roberts was armed. Johnson remained in the car. Wilson
stood by the car. When Roberts and Hunter returned to the car,
Roberts said Hwang would not give him money, so Roberts shot
him. Back at Roberts’s house, the men split money and jewelry
from the store.
Wilson similarly testified that the plan was for Roberts and
Hunter to rob the jewelry store while Wilson and Johnson acted
as lookouts. Roberts had a .22 rifle with a potato taped to it. A
few minutes after Roberts and Hunter went into the jewelry
store, they ran back to the car and drove home. Wilson denied
going into the jewelry store and shooting Hwang.
6
Accomplice Wilson is Burrell’s brother.
7
In closing argument, the prosecutor referred to a
photograph exhibit showing a golf club near Hwang’s body.
6
II. Verdict and sentence
A jury found Roberts guilty of count 1, first degree murder
with a special circumstance finding that he committed the
murder while engaged in a robbery, and of count 2, second degree
robbery. As to both counts, the jury found that Roberts
personally used a firearm, a rifle (§ 12022.5, subd. (a)). In 1996,
the trial court sentenced Roberts on count 1 to life without parole
for the murder, five years for the firearm enhancement, and one
year for a prison prior (§ 667.5, subd. (b)). The trial court
imposed but stayed the sentence on count 2.
A different panel of this division affirmed the judgment of
conviction on direct appeal in People v. Roberts, supra, B110600.
III. Section 1172.6 proceedings
In 2022, Roberts petitioned for resentencing under section
1172.6. The trial court appointed counsel for Roberts. The
People opposed the petition on the ground that the jury was not
instructed on the natural and probable consequences doctrine but
was instructed with CALJIC No. 8.80.1, which required the jury
to find that Roberts was the actual killer or intended to kill a
human being to find the special circumstance true.
On March 6, 2023, the trial court denied the petition on the
ground that the jury found Roberts to be the actual killer or
intended to kill a human being when he committed the robbery.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
7
under the felony-murder rule, eliminated the natural and
probable consequences doctrine as it relates to murder, and
eliminated convictions for murder based on a theory under which
malice is imputed to a person based solely on that person’s
participation in a crime. (See generally People v. Reyes (2023) 14
Cal.5th 981, 986; Lewis, supra, 11 Cal.5th at pp. 957, 959; People
v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill No. 1437
added section 189, subdivision (e) (limiting application of the
felony-murder rule) and section 188, subdivision (a)(3) (stating
that “to be convicted of murder, a principal in a crime shall act
with malice aforethought” and malice “shall not be imputed to a
person based solely on his or her participation in a crime”). As
amended by Senate Bill No. 775, effective January 1, 2022, these
ameliorative changes to the law now expressly apply to
attempted murder and voluntary manslaughter.
Senate Bill No. 1437 also created a procedure, codified at
section 1172.6, for a person convicted of murder, attempted
murder, or voluntary manslaughter under the former law to be
resentenced if the person could no longer be convicted of those
crimes under the current law. (Lewis, supra, 11 Cal.5th at
p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A
petitioner commences that procedure by filing a petition
containing a declaration that, among other things, the petitioner
could not presently be convicted of murder, attempted murder, or
voluntary manslaughter under the current law. (People v. Strong
(2022) 13 Cal.5th 698, 708.)
At the prima facie stage, the trial court takes as true the
petitioner’s factual allegations and assesses whether the
petitioner would be entitled to relief if those allegations were
proven. (Lewis, supra, 11 Cal.5th at p. 971.) In determining
8
whether the petitioner has made a prima facie case for relief, the
trial court may look at the record of conviction, including jury
instructions, verdicts, and closing argument, to determine readily
ascertainable facts such as the crime of conviction. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v.
Harden (2022) 81 Cal.App.5th 45, 56.) At the prima facie stage,
the trial court does not engage in fact finding that involves the
weighing of evidence or exercise of discretion. (Lewis, at p. 972.)
If a petition establishes a prima facie case for relief, the trial
court must appoint counsel if requested, issue an order to show
cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3),
(c), & (d)(1).) But if at the prima facie stage the record of
conviction establishes that the petition is meritless, the trial
court may dismiss it. (Lewis, at p. 971.)
To deny a petition at the prima facie stage, the record of
conviction must demonstrate the petitioner is ineligible for relief
as a matter of law. (People v. Ervin (2021) 72 Cal.App.5th 90,
101 (Ervin).) We review the denial of a petition at the prima
facie stage de novo. (Ibid.)
II. The record of conviction established Roberts’s ineligibility
for relief
Roberts contends that the trial court erred in finding that
the special circumstance jury instruction, CALJIC No. 8.80.1,
established he was convicted as the actual killer or a direct aider
and abettor who had intent to kill, thereby rendering him
ineligible for relief as a matter of law. We disagree.
As to felony murder, Roberts’s jury was instructed that an
unlawful killing occurring during the commission or attempted
commission of a robbery is first degree murder when the
perpetrator had the specific intent to commit robbery. (CALJIC
9
Nos. 8.21, 8.27.) The jury was further instructed on the special
circumstance with CALJIC No. 8.80.1:
If you find the defendant in this case guilty of
murder of the first degree on the theory that the
victim was killed during the commission of a robbery,
you must then also determine if the special
circumstance that the alleged victim was killed
during the commission of a robbery is true or not
true.
The People have the burden of proving the
truth of this alleged special circumstance. If you
have a reasonable doubt as to whether this special
circumstance is true, you must find it to be not true.
If you are satisfied beyond a reasonable doubt
that the defendant actually killed a human being,
you need not find that the defendant intended to kill
in order to find the special circumstance true.
However, if you find that the defendant was not
the actual killer of a human being, or you are unable
to decide whether the defendant was either the
actual killer or an aider and abettor, you cannot find
the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that the
defendant, with the intent to kill, aided, abetted, or
assisted any actor in the commission of the murder in
the first degree.8
8
During the jury instruction conference, the trial court said
it intended to include a paragraph that the special circumstance
could also be found true if the jury found that Roberts was a
major participant who acted with reckless indifference to human
life. The record does not show why the jury was not instructed on
that theory.
10
CALJIC No. 8.80.1 thus permitted the jury to find the
special circumstance true only if it found beyond a reasonable
doubt either that (1) Roberts was the actual killer or (2) he aided
and abetted, with intent to kill, a first degree murder. Roberts’s
jury found the special circumstance true; therefore, it believed
either that he was the actual killer or a direct aider and abettor
with malice/intent to kill. (See, e.g., People v. Harden, supra, 81
Cal.App.5th at p. 55, fn. 8 [true finding based on CALJIC
No. 8.80.1 means defendant was either actual killer or had
specific intent to kill].) Actual killers and direct aider and
abettors who intend to kill are ineligible for section 1172.6 relief.
(See People v. Delgadillo (2022) 14 Cal.5th 216, 233 [actual killer
and sole participant in crime ineligible for § 1172.6 relief]; People
v. Curiel (2023) 15 Cal.5th 433, 462 [after Sen. Bill No. 1437’s
enactment, murder “liability requires a different, valid theory,
such as direct aiding and abetting”].)
In addition to the jury instruction, the record of conviction,
namely, the jury’s verdict and the People’s closing arguments,
further show that Roberts was convicted as the actual killer or a
direct aider and abettor who had intent to kill. The jury found
that Roberts personally used a firearm in the commission of the
murder and robbery, under section 12022.5, subdivision (a).
Although the jury was instructed that “personally used a firearm”
had three meanings—Roberts (1) intentionally displayed a
firearm in a menacing manner, (2) intentionally fired it, or
(3) intentionally struck or hit a human being with it (CALJIC
No. 17.19)—the prosecutor argued only that Roberts “personally
pulled the trigger” and did not argue that Roberts used the gun
in any of the other ways. Indeed, there was no theory posited by
any party or evidence produced that Roberts displayed the rifle in
11
a menacing manner or hit Hwang with it. The only evidence
relevant to the firearm enhancement was that Roberts was the
shooter, i.e., he personally pulled the trigger. The jury’s true
finding on the firearm enhancement was consistent with—albeit
not conclusive of—a conclusion that Roberts intentionally fired
the rifle.
The prosecutor’s closing argument advanced its theory that
Roberts was the actual killer. In making that argument, the
prosecutor focused on the evidence supporting that theory rather
than the instructions. And when the prosecutor referred to the
instructions, he merely said that if the jury did not believe
Roberts actually killed Hwang, Roberts was still guilty as an
aider and abettor, “and he had to intend to kill by supplying a
silenced weapon. He tells us he did that—he’s also guilty of the
special circumstance.” Defense counsel then reiterated in his
closing argument that an aider and abettor must intend to kill,
saying that to “find the special circumstance true, you must find
that Mr. Roberts was the actual killer or that [he w]as a
participant and he had the intent to kill Mr. Hwang.”
A brief comment the prosecutor made in rebuttal did not
tell the jury to disregard intent to kill if it believed Roberts was
an aider and abettor and not the actual killer. The prosecutor
said, “Look at the law as it applies to first degree murder. You
heard it this morning. Any death during the course of a robbery
is murder in the first degree. Look at the special circumstance,
once a first degree murder has been proven. If the killing
occurred in the commission of the robbery, the special
circumstance is true.” (Italics added.) The prosecutor then
immediately added that if the jury believed Wilson was the
shooter despite the only evidence for that notion being Roberts’s
12
uncorroborated statements, Roberts was “still involved in the
planning and the preparation for the robbery, and he still had the
intent to kill” Hwang. Placed in the specific context of what the
prosecutor said and the general context of closing arguments as a
whole, at no time did the prosecutor tell the jury it could find the
special circumstance true if Roberts was an aider and abettor and
lacked intent to kill Hwang. Instead, both the prosecutor and
defense counsel repeatedly said that an aider and abettor must
intend to kill.
Roberts nonetheless contends CALJIC No. 8.80.1 allowed
the jury to find the special circumstance true even if it believed
Roberts was an aider and abettor who “abandoned” any intent to
kill once Wilson said he wanted to be the shooter. We disagree
because CALJIC No. 8.80.1 specifically required the jury to find
that Roberts “with the intent to kill, aided, abetted, or assisted
any actor in the commission of the murder in the first degree.”
Meaning, if the jury convicted defendant on an aiding and
abetting theory, the jury necessarily found he had the intent to
kill when he did the aiding and abetting. That a defendant could
change his mind after he completed the aiding and abetting is of
no consequence. There was no ambiguity as to Roberts’s intent.
Roberts cursorily cites Ervin, supra, 72 Cal.App.5th 90, for
support. Ervin, however, did not address an “abandonment of
intent” theory. Rather, in Ervin, the defendant Ervin and two
accomplices robbed a store, and one of the three men shot and
killed a woman during the robbery. The jury found Ervin guilty
of burglary, robbery and first degree murder and found true two
felony-murder special circumstance allegations. (Id. at p. 94.)
The jury found that Ervin personally used a gun during the
burglary and robbery but not during the murder. (Ibid.)
13
In ruling on Ervin’s section 1172.6 petition, the trial court
found that the jury’s true finding on the special circumstance
allegations precluded resentencing relief as a matter of law
because the jury necessarily found he was the actual killer or
participated in the burglary and robbery with intent to kill.
(Ervin, supra, 72 Cal.App.5th at p. 103.) The Court of Appeal
disagreed, finding that under the unique circumstances before it,
the trial court erred in denying the petition based solely on the
special circumstance findings. The court noted that the
prosecution pursued two theories of first-degree murder liability:
premeditated and deliberate murder, and felony murder.
However, despite the prosecution’s theory of the case that Ervin
was the actual killer, the jury did not find he used a gun in the
commission of the murder. Therefore, the jury “potentially found
Ervin guilty of murder as an aider and abettor under” the now
invalid felony-murder rule. (Id. at p. 104.)
The Court of Appeal then found that the special
circumstance findings did not cure the problem. The special-
circumstance instructions contained this ambiguous, conditional
language: “ ‘[If you find beyond a reasonable doubt that the
defendant was [either the actual killer or an aider or abettor, but
you are unable to decide which], then you must also find beyond a
reasonable doubt that the defendant intended either to kill a
human being or to aid another in the killing of a human being in
order to find the special circumstance to be true.]’ ” (Ervin,
supra, 72 Cal.App.5th at p. 107.) This conditional wording
allowed the jury to find that Ervin aided and abetted killing a
person without the intent to kill. (Id. at p. 108.) The prosecutor
in closing argument compounded the instructional problem by
telling the jury multiple times it could find the special
14
circumstance true by finding merely that Ervin participated in a
robbery during which a person was killed, without any mens rea
finding. (Id. at pp. 109–110.)
Here, however, the special circumstance instruction,
CALJIC No. 8.80.1, did not contain the problematic, conditional
language given to Ervin’s jury. It instead unambiguously
instructed that an aider and abettor had to have intent to kill.
And, as we have said, the prosecutor did not conflate the special
circumstance allegation with the former felony-murder rule.
That is, he did not tell the jury it could find the special
circumstance allegation true if Roberts was an aider and abettor
and lacked intent to kill.
Moreover, the verdicts here were consistent, unlike in
Ervin, where the jury found Ervin guilty of burglary, robbery,
and murder and further found he personally used a firearm
during the burglary and robbery but not the murder, contrary to
the prosecutor’s theory that Ervin was the actual killer. (Ervin,
supra, 72 Cal.App.5th at p. 103.) Roberts’s jury found him guilty
of first degree murder and of second degree robbery, found that
he personally used a firearm during both crimes, and found true
the special circumstance allegation—all of which accorded with
the prosecutor’s theories of liability at trial.9
9
Ervin also found the special circumstances instruction
problematic because felony murder now requires an aider and
abettor to assist “the actual killer in the commission of” first
degree murder. (§ 189, subd. (e)(2), italics added; Ervin, supra,
72 Cal.App.5th at p. 108.) The instruction given to Ervin’s jury,
as the one here, required the jury to find he aided and abetted
“any actor in the commission” of first degree murder. (Ervin, at
p. 106.) Roberts does not address this issue, and therefore it is
not before us on appeal, as we have no obligation to make
15
DISPOSITION
The order denying Antonio Roberts’s Penal Code section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
arguments for litigants. (United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; see Public
Employment Relations Bd. v. Bellflower Unified School Dist.
(2018) 29 Cal.App.5th 927, 939 [“ ‘ “absence of cogent legal
argument or citation to authority allows this court to treat the
contention as waived” ’ ”].)
16