People v. Robbins CA2/3

Filed 1/14/22 P. v. Robbins 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B306944
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA310233-02
v.
AKIL ROBBINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda Lopez and Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Akil Robbins 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—after appointing counsel and permitting briefing—found
Robbins was ineligible for relief. We affirm because the record
of conviction establishes Robbins is ineligible for resentencing
as a matter of law.
FACTS AND PROCEDURAL BACKGROUND
1. The crime, conviction, and appeal
On October 2, 2006, a witness standing at a busy
intersection heard gunshots.2 He saw a man later identified as
Christopher Mathis standing next to the open front passenger
door of a red Chevrolet Cobalt. Mathis was pointing a gun
at a man later identified as Ernest Crayton. Mathis fired at
Crayton one last time and got back into the car, which sped away.
1 References to statutes are to the Penal Code.
2 On May 21, 2021, we granted the Attorney General’s
motion for the court to take judicial notice of the file in Robbins’s
direct appeal, People v. Robbins (Dec. 13, 2010, B221364)
[nonpub. opn.] (Robbins I). In his opening brief, Robbins says
he “adopts” as his statement of facts “those set forth in the Court
of Appeal unpublished decision of People v. Robbins . . . taken
from his direct appeal, and to the extent that these facts do not
conflict with the arguments set out in this brief.” It is unclear
what Robbins means by this. In any event, as the truth of
the facts of the crime recited in Robbins I are not necessary
for our resolution of this appeal, we summarize them only for
the basis of Robbins’s conviction. (See People v. Woodell (1998)
17 Cal.4th 448, 459-460.)
2
The eyewitness identified Robbins as the Cobalt’s driver.
Crayton died from six gunshot wounds. (Robbins I.)
A police officer who heard a radio broadcast about the
shooting saw a red Cobalt traveling at high speed. He pursued
the Cobalt. It stopped suddenly and its occupants fled on foot.
The officer, who could see their faces clearly as they ran,
identified Robbins as the driver and Mathis as the passenger.
Police found Robbins hiding in some bushes. He had gunshot
residue on his hand. Police found the murder weapon under
the driver’s seat in the Cobalt. (Robbins I.)
Both Robbins and Mathis were members of the 76 East
Coast Crips. A prosecution gang expert testified at trial that
the 76 East Coast Crips were rivals of the Rolling 40s and
the shooting took place in Rolling 40s territory. A Rolling 40s
member told police that Crayton had flashed a Rolling 40s gang
sign at someone moments before Mathis shot him. (Robbins I.)
The People charged Robbins with murder and felony
evading. Robbins and Mathis were tried together. The trial
court instructed the jury on first and second degree murder,
and on aiding and abetting. After the jury sent out a couple of
questions about whether an aider and abettor could be convicted
of a greater or lesser crime than the perpetrator, the court
further instructed the jury, “ ‘In order to find a defendant
guilty of first-degree murder in this case, you must determine
whether each defendant committed murder with premeditation,
deliberation, and willfulness separately.’ ” (Robbins I.)
The jury convicted Robbins of first degree murder as
well as felony evading. The jury found “principal . . . discharged
a firearm” and gang allegations true. The court sentenced
Robbins to an indeterminate term of 50 years to life for the
murder and a concurrent term of three years for the evading.
In December 2010, we affirmed Robbins’s conviction, rejecting
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his argument that the trial court misinstructed the jury
on his liability as an aider and abettor. (Robbins I.)
2. The section 1170.95 petition
After Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437) took effect, Robbins filed on January 17, 2019
a petition for resentencing. On a downloadable form, Robbins
checked boxes stating he “was convicted of 1st or 2nd degree
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine,” he “could not now be convicted
of 1st or 2nd degree murder because of changes made to Penal
Code §§ 188 and 189,” he was “not the actual killer,” he “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,” and he “was not a major participant
in the felony or [he] did not act with reckless indifference to
human life during the course of the crime or felony.” Robbins
also checked the box asking the court to appoint counsel for him.
On April 8, 2019, the prosecution filed an opposition
to Robbins’s petition. The prosecution contended Robbins was
convicted as a direct aider and abettor and “[n]either the natural
and probable consequences theory of liability, nor the felony
murder rule, [was] argued in this case.” The prosecution also
argued section 1170.95 was unconstitutional. The prosecution
attached our opinion in Robbins I as an exhibit.
The court appointed counsel for Robbins. On May 14, 2019,
counsel filed an opposition to the prosecution’s brief addressing
the constitutionality issue as well as a request for more time
to file a reply on the merits of Robbins’s petition.
On March 13, 2020, Robbins’s counsel filed a reply to
the prosecution’s opposition to the petition. Counsel conceded
Robbins’s jury was not instructed on felony murder or the
natural and probable consequences doctrine. Counsel contended,
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however, that CALJIC No. 8.11, entitled “ ‘Malice Aforethought’
—Defined,” which the trial court gave to the jury, “is clearing
natural and probable consequences theory including in the
murder instruction [sic].” Counsel referred to the jurors’
questions about aiding and abetting and the trial court’s
supplemental instruction, arguing “the jury had questions
and concerns about a non-killer and any liability especially in
a case like this where at best [there] was only circumstantial
evidence of any kind of intent as to Mr. Robbins.” Counsel
concluded Robbins had made a prima facie case and “[a]ny issue
of any exception is the subject of an OSC.”
Counsel attached as exhibits to his reply Robbins I,
the jury’s questions, portions of the reporter’s transcript where
the court discussed the questions with counsel, some of the jury
instructions (CALJIC Nos. 3.00, 3.01, 8.10, 8.11 8.20, 8.30, 8.31,
8.70, and 8.71),3 and portions of the reporter’s transcript of the
prosecutor’s closing argument. The prosecutor talked about
aiding and abetting, using the examples of a getaway driver
in a bank robbery or someone who drives the shooter in a
drive-by. The prosecutor never mentioned natural and probable
consequences, nor did he suggest Robbins could be liable for
any intended crime other than murder.
On June 10, 2020, Robbins’s counsel filed a supplemental
brief citing People v. Drayton (2020) 47 Cal.App.5th 965. Counsel
reiterated his argument that the “Court must find a prima facie
finding of eligibility and set for an OSC.”
3 Counsel did not include CALJIC No. 3.02—the natural
and probable consequence instruction—and no one has ever
contended in this case that the court gave the jury that
instruction at Robbins’s trial.
5
The parties appeared before the court on July 27, 2020.
As Mathis also had filed a petition for resentencing, the court
heard both petitions in a single proceeding. Robbins’s counsel
told the court, “From my perspective, there’s enough for purposes
of showing a prima facie case on eligibility just to get us to the
OSC, not necessarily suitability. That would be a question at
the OSC itself.”
The prosecutor responded that neither Mathis nor Robbins
was eligible for relief under section 1170.95. The statute,
the prosecutor continued, “change[d] the law when it comes
to accomplice liability particularly for [felony] murder cases 4
and cases that were prosecuted under the natural and probable
consequences theory. This case does not fall into either
category.” After describing Mathis’s role as the shooter,
the prosecutor said, “Defendant Robbins . . . was found guilty
of first degree murder under an aiding and abetting theory
and was not prosecuted under a felony murder nor a natural
and probable consequences theory. Therefore, . . . by the clear
record of the case, neither defendant is eligible for relief under
the amended law.”
Both defense lawyers replied that a “facially adequate
petition” “shifts the burden to the People to then prove by
competent evidence” that the petitioners were “not entitled
to relief.”
The court then summarized the facts set forth in the
court of appeal opinions affirming both Mathis’s5 and Robbins’s
4 The reporter’s transcript says “so many murder cases.”
It seems either the prosecutor misspoke or the reporter erred,
and what was said or meant was “felony murder cases.”
5 People v. Mathis (Nov. 20, 2009, B209147) [nonpub. opn.].
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convictions. The court noted, “Both defendants were convicted
under the legal theory of willful, deliberate, and [pre]meditated
murder. Mr. Mathis as the shooter; Mr. Robbins as the getaway
driver and aider and abettor.” The court continued, “The
record of conviction proves beyond a reasonable doubt that
both defendants acted with malice aforethought. Neither the
accomplice liability, natural and probable consequences theory
of liability, nor the felony murder rule were argued in this case.”
The court went on to say, “Mr. Robbins is not eligible
for resentencing since he was a major participant who acted
with reckless indifference to human life pursuant to Penal Code
section 189(e)(3).” The court then listed the “specific facts
to make that factual and legal conclusion.” The court denied
the petitions.
Mathis began to argue with the court. After hearing from
Mathis, the court asked, “Anything further from either side?”
Robbins’s counsel then said, “[A]lthough there wasn’t a separate
instruction” on “the natural and probable consequences theory,”
“within the language on the murder [sic], there is language
on natural and probable consequences.” Counsel added that
the question of whether Robbins was a major participant
“would be ultimately a question for the OSC.”
DISCUSSION
1. Senate Bill No. 1437
Senate Bill 1437 took effect 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).)
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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 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
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petitioner has made a prima facie showing that he is entitled
to relief.6 (See Lewis, supra, 11 Cal.5th at pp. 959-960.)
In determining whether the petitioner has carried his
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 subdivision
(c) is limited. Like the analogous prima 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.” ’ . . . ‘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.)
2. Robbins is ineligible for resentencing as a
matter of law
Robbins makes several arguments on appeal. He
contends the trial court erred in ruling he “was not eligible
for resentencing because he was a major participant who acted
with reckless indifference to human life.” He also seems to
argue that, by checking the boxes on the form, he “established
a prima facie case” and the court was required but “refused
to hold an evidentiary hearing.” Robbins says “the prosecution
failed to allege facts in the trial record which called into question
6 The requirement to appoint counsel if requested now
appears in subdivision (b)(1)(C)(3) of section 1170.95.
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the statements in” his petition. He asserts that, had the court
issued an order to show cause, “it would have become clear
that [Robbins] was convicted of murder under the natural
and probable consequences doctrine.” Only the first of these
contentions has merit.
After stating that the record of conviction demonstrated
(1) Robbins was not tried for felony murder or under the natural
and probable consequences doctrine, and (2) he acted with
malice aforethought, the court went on to say (3) Robbins
was a major participant who acted with reckless indifference
to human life. As the Attorney General implicitly concedes, 7
this was error.
First, the question of whether a defendant was a “major
participant in the underlying felony and acted with reckless
indifference to human life” is relevant only to defendants
convicted of felony murder. (§ 189, subds. (a) & (e)(3).) As we
have said, Robbins was not tried or convicted for felony murder.
Second, a “major participant/reckless indifference” inquiry
requires factfinding and the weighing of evidence, which cannot
take place until an order to show cause issues and a hearing
is held. (People v. Duchine (2021) 60 Cal.App.5th 798, 815
[court may consider record of conviction at prima facie stage but
“may not evaluate the evidence, make credibility findings adverse
to the petitioner, engage in factfinding or exercise discretion”];
People v. Harris (2021) 60 Cal.App.5th 939, 949-950, review
7 The Attorney General states he “does not rely on the court’s
alternative position that the facts showed appellant was a major
participant who acted with reckless indifference to human life.”
(See generally People v. Brooks (2017) 3 Cal.5th 1, 39 [appellate
court will generally affirm a trial court’s ruling if correct on
any ground, even if the court’s reasoning was incorrect].)
10
granted April 28, 2021, S267802 [in finding petitioner to be
major participant who acted with reckless indifference, without
issuing order to show cause, court erroneously “engaged in
factfinding rather than evaluating the record of conviction solely
to determine whether it established [petitioner’s] ineligibility
for relief under section 1170.95 as a matter of law”].)
But Robbins is ineligible for resentencing as a matter
of law for a different reason: he was not tried or convicted under
the felony-murder rule or the natural and probable consequences
doctrine. The record belies Robbins’s assertion that “the
prosecution failed to allege facts in the trial record which called
into question the statements in [his] petition.” On the first page
of its first brief, the prosecution stated, “The defendant was
convicted under the legal theory of directly aiding and abetting
a willful, deliberate, and premeditated murder. Neither
the natural and probable consequences theory of liability, nor
the felony murder rule, [was] argued in this case.” Moreover,
Robbins’s counsel conceded in the superior court “that a natural
and probable consequences independent instruction was not
provided nor a felony murder instruction provided” to the jury.
Counsel attached the jury instructions, which included
instructions on direct aiding and abetting—CALJIC Nos. 3.00
and 3.01—but no instruction on the natural and probable
consequences doctrine. (See CALJIC No. 3.02.)
On appeal, Robbins contends, “While the jury was not
specifically charged with a natural and probable consequences
independent instruction, the instruction on malice which the
jury received noted that malice is implied when: (i) the killing
resulted from an intentional act; (ii) the natural and probable
consequences of the act are dangerous to human life; and (iii)
the act was deliberately performed with knowledge of the danger
to and with conscious disregard for human life.” Robbins says,
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as a result, he “was convicted on a natural and probable
consequences theory of murder.”
Robbins is mistaken. Although he doesn’t say so, Robbins
apparently is referring to CALJIC No. 8.11, entitled “ ‘Malice
Aforethought’—Defined.” People v. Soto (2020) 51 Cal.App.5th
1043 (Soto), abrogated on other grounds in Lewis, is directly
on point.8 There, Soto was the driver of a car carrying another
man who shot the victim to death. In 1996 a jury convicted
him of second degree murder. Soto’s jury was instructed on
“principles of aider and abettor liability” but not “that Soto
could be liable for [first and second degree murder] either
as the natural and probable consequence of the commission
of another crime or based upon the felony-murder rule.” (Id.
at pp. 1048-1050.)
Soto petitioned for resentencing under section 1170.95, the
trial court denied the petition, and the court of appeal affirmed.
(Soto, supra, 51 Cal.App.5th at p. 1048.) The appellate court held
that “the jury instructions themselves demonstrate as a matter
of law that Soto could not make a prima facie showing that he
is entitled to relief.” (Id. at p. 1055.) The court noted Soto’s
“jurors were not provided any instruction on which they could
have found Soto guilty of murder under [the natural and probable
consequences] doctrine.” Accordingly, “under the instructions,
the jury necessarily found Soto culpable for murder based on
his own actions and mental state as a direct aider and abettor
of murder.” (Ibid.)
8 The Attorney General cited Soto in his brief. Robbins
doesn’t mention the case in his reply, much less attempt
to explain why it’s distinguishable or wrongly decided—
if he contends it is.
12
We agree with the Soto court’s straightforward,
common sense approach. (See also People v. Edwards (2020)
48 Cal.App.5th 666, 673-674 [trial court considered jury
instructions and reporter’s transcript of prosecutor’s closing
argument in determining petitioner had not been convicted
of felony murder or murder under the natural and probable
consequences doctrine]; People v. Smith (2020) 49 Cal.App.5th
85, 92, fn. 5, review granted July 22, 2020, S262835 [“if the
jury was not instructed on a natural and probable consequences
or felony-murder theory of liability, the petitioner could not
demonstrate eligibility as a matter of law because relief is
restricted to persons convicted under one of those two theories”].)
Finally, although we need not reach the superior court’s
third alternative ground for denying Robbins’s petition—that
he acted with malice aforethought—the jury’s verdict convicting
Robbins of first degree murder also precludes resentencing relief.
As noted, the trial court instructed the jury on direct aiding and
abetting and also told the jurors, “ ‘In order to find a defendant
guilty of first-degree murder in this case, you must determine
whether each defendant committed murder with premeditation,
deliberation, and willfulness separately.’ ” (Robbins I.) As
the Attorney General notes, the court also instructed the jury
with CALJIC Nos. 8.10 (“Murder—Defined,” requiring malice
aforethought), 8.11 (“ ‘Malice Aforethought’—Defined”), and 8.20
(“Deliberate and Premeditated Murder,” explaining a first degree
murder is a “willful, deliberate and premeditated killing with
express malice aforethought”).
In sum, the record of conviction establishes Robbins is
ineligible for relief under section 1170.95 as a matter of law.
(Cf. People v. Johnson (2020) 57 Cal.App.5th 257, 265, 271
[affirming denial of resentencing petitions because defendants
were convicted of provocative act murder, which requires
13
defendant to have personally harbored malice]; 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].)
DISPOSITION
We affirm the superior court’s postjudgment order denying
Akil Robbins’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:
LAVIN, Acting P. J.
VIRAMONTES, 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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