People v. Robinson CA2/7

Filed 11/29/21 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, B312619
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA041966)
v.
MICHAEL JAY ROBINSON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Darrell Mavis, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
The superior court summarily denied Michael Jay
Robinson’s petition for resentencing pursuant to Penal Code
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section 1170.95, finding Robinson ineligible for relief because he
had been convicted of second degree murder as the actual killer of
David Ambers, not as an accomplice to the homicide under the
natural and probable consequences doctrine or the felony-murder
rule. We affirm in accordance with the procedure approved in
People v. Cole (2020) 52 Cal.App.5th 1023, review granted
October 14, 2020, S264278.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Robinson in July 2000 of second degree
murder (§ 187) and found true the special allegation Robinson
had personally and intentionally discharged a firearm
proximately causing Ambers’s death (§ 12022.53, subd. (d)).
Robinson was sentenced as a third strike offender to an
aggregate indeterminate state prison term of 70 years to life.
We affirmed Robinson’s conviction on appeal, agreeing with
his argument that the trial court had erred in failing to fully
instruct the jury on self-defense and in failing to give the
antecedent threat instruction requested by defense counsel but
held any error was harmless because “[n]o reasonable jury would
have determined on this evidence that Robinson acted in self-
defense.” We explained, “The evidence before the jury was
overwhelming that Robinson killed Ambers not in self-defense
but in a violent and misguided response to the victim’s challenge
to his status and honor.” (People v. Robinson (May 13, 2002,
B144770) [nonpub. opn.].) In our opinion we noted, because the
defense argued not only that someone else actually shot Ambers,
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Statutory references are to this code.
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but also that Robinson had killed Ambers out of fear and in self-
defense or, alternatively, in the heat of passion during an
argument over a woman, in addition to instructing the jury on
the elements of first and second degree murder, the court
instructed on voluntary manslaughter based on imperfect self-
defense and heat of passion.
In January 2021 Robinson, representing himself, petitioned
for resentencing pursuant to section 1170.95, alleging he had
been convicted of second degree murder under the natural and
probable consequences doctrine or the second degree felony-
murder rule and could not now be convicted of murder because of
changes to section 188, effective January 1, 2019. In his petition
Robinson requested appointment of counsel during the
resentencing process. Robinson also included a declaration with
the petition in which he stated, “[D]espite the jury’s findings, I
was not present during the underl[ying] offense of conviction.”
After considering the petition with its attachments and the
court file, the superior court summarily denied Robinson’s
petition without appointing counsel or directing the prosecutor to
file a response to the petition. The court found Robinson was not
eligible for relief because he had been convicted as the actual
killer of Ambers, not under the natural and probable
consequences doctrine or the felony-murder rule.
Robinson filed a timely notice of appeal.
DISCUSSION
In accord with the procedures described in People v. Cole,
supra, 52 Cal.App.5th 1023, review granted, we appointed the
California Appellate Project to represent Robinson on appeal.
After reviewing the record on appeal, Robinson’s counsel filed a
brief raising no issues. Appointed counsel advised Robinson on
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October 19, 2021 that he could within 30 days submit a brief or
letter raising any grounds of appeal, contentions or arguments he
wanted the court to consider.
On November 12, 2021 we received a three-page typed
supplemental brief from Robinson. Abandoning the claim in his
petition that he was not present when Ambers was shot and
killed, in his supplemental brief Robinson asserted, contrary to
the record, that the trial court had erred by failing to instruct
sua sponte on voluntary manslaughter/heat of passion “because
when appellant shot the victim (his) passion was aroused and his
reason obscured due to a sudden quarrel.” In addition,
apparently borrowing from material prepared for other cases,
Robinson argued the superior court in denying his petition
improperly engaged in judicial factfinding on issues not
conclusively resolved by the record of conviction, including
determining he was a major participant who acted with reckless
indifference to human life, even though no such findings were
made. Robinson does not dispute that he was tried and convicted
as the actual perpetrator of Ambers’s murder and does not
contend the jury was instructed on accomplice liability for
murder under the felony-murder rule or the natural and probable
consequences doctrine, as necessary for resentencing relief under
section 1170.95.
In People v. Lewis (2021) 11 Cal.5th 952, 962-963, decided
three months after the superior court’s summary denial of
Robinson’s petition, the Supreme Court held, if a section 1170.95
petition contains all the required information, including a
declaration by the petitioner that he or she was convicted of
murder and is eligible for relief, section 1170.95, subdivision (c),
requires the court to appoint counsel to represent the petitioner,
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if requested, and to direct the prosecutor to file a response to the
petition and permit the petitioner to file a reply before
determining whether the petitioner has made a prima facie
showing that he or she is entitled to relief. Because Robinson’s
petition made the requisite initial showing, the superior court
erred by denying his petition without first appointment counsel.
The Lewis Court, however, also held a superior court’s
failure to appoint counsel to represent a petitioner when
assessing whether he or she has made a prima facie showing of
entitlement to relief pursuant to 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
2
818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) Here,
because the record of conviction established Robinson was
convicted as the actual killer and not on a theory of accomplice
liability and, thus, his ineligibility for resentencing relief as a
matter of law, there is no reasonable probability he would have
obtained a more favorable result if counsel had been appointed
and given the opportunity to file a memorandum supporting the
petition. Accordingly, the court’s error in failing to appoint
counsel was harmless.
2
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
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.) Appellate opinions “are generally
considered to be part of the record of conviction.” (Id. at p. 972.)
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Because no cognizable legal issues have been raised by
Robinson’s appellate counsel or by Robinson or identified in our
independent review of the record, the order denying the
section 1170.95 petition for resentencing is affirmed. (See People
v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted;
see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see
generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v.
Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Robinson’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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