People v. Robinson CA3

Filed 11/15/22 P. v. Robinson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094766
Plaintiff and Respondent, (Super. Ct. No. 05F03831)
v.
CLARK ROBINSON,
Defendant and Appellant.
A jury convicted defendant Clark Robinson of murder in a home invasion robbery
and found true a robbery-murder special circumstance. (Pen. Code, §§ 187, subd.
(a), 190.2, subds. (a)(17), (d).)1 Defendant petitioned for resentencing under section
1172.6 (former section 1170.95) based on changes to the felony murder rule made by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, effective Jan. 1,
1 All undesignated statutory references are to the Penal Code.
1
2019; Senate Bill 1437).2 Defendant contends the trial court erred in denying the petition
at the prima facie stage.
After defendant’s conviction, the California Supreme Court issued two decisions
as guidance on the factors that should be considered by a jury in finding true felony-
murder special circumstances enhancements: People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Banks set forth factors to be
considered in determining whether a defendant was a “major participant” in the
underlying felony. (Banks, supra, at pp. 797-804.) In Clark, the court set forth factors to
be considered in determining whether a defendant acted with “reckless indifference to
human life.” (Clark, supra, at pp. 611-623.)
We requested supplemental briefing to address whether the trial court erred in
denying defendant’s petition in light of the California Supreme Court’s decision in
People v. Strong (2022) 13 Cal.5th 698 (Strong). The parties agree that the court erred,
as do we. We will reverse the court’s order denying the petition and direct the court to
issue an order to show cause and, if necessary, conduct an evidentiary hearing on
defendant’s petition.
I. BACKGROUND
Given the nature of this appeal, a detailed recitation of the facts is not necessary.
In sum, defendant and two others entered the home of the victim, whom they believed
stored the proceeds from drug sales in his house, by firing a shot gun into the side of the
house and entering through a bedroom window. In exiting the house, one of the intruders
shot the victim with a handgun. Defendant was arrested asleep in a car with a shotgun
between his legs that matched to a shell found in the victim’s house. With defendant was
2Effective June 30, 2022, former section 1170.95 was recodified without substantive
change as 1172.6. (Stats. 2022, ch. 58, § 10.)
2
his co-defendant, who had a handgun in his waistband that matched to a shell recovered
at the scene.3
The jury convicted defendant of murder with a robbery-murder special
circumstances finding (§§ 187, subd. (a), 190.2, subd. (a)(17)) and also found true that
defendant personally used a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to
life without the possibility of parole, plus 10 years consecutive for the firearm
enhancement. The trial court stayed defendant’s sentence on a separate conviction for
robbery (§ 211) under section 654. On appeal, we affirmed the judgment (modified to
add a parole revocation fine). (Robinson, supra, C055313.)
On March 7, 2019, the trial court denied defendant’s petition for habeas corpus
rejecting his claim that the evidence was insufficient to support the jury findings and
should be reviewed again under Banks.
On April 29, 2019, defendant filed a petition for writ of habeas corpus in this court
raising the same contention, which we denied.
On February 3, 2020, defendant filed a petition for resentencing under section
1172.6. His declaration stated that he was convicted of murder under the felony-murder
rule or natural and probable consequences doctrine and could not now be convicted of
murder because of the changes to sections 188 and 189. The trial court granted
defendant’s request for appointment of counsel.
On August 14, 2020, the District Attorney filed a motion to dismiss the petition.
On July 14, 2021, defense counsel filed a reply brief.
On August 9, 2021, the trial court issued an order denying the petition. The court
expressed the view that a petition under section 1172.6 was not the proper forum
3 We granted defendant’s request for judicial notice of, and to incorporate by reference,
the record of his direct appeal and our opinion in People v. Robinson (May 28, 2009,
C055313) [nonpub. opn.] (Robinson).
3
determining the sufficiency of the evidence finding in light of Banks and Clark,
especially when defendant had been denied habeas relief after those decisions were
rendered. Even without regard to defendant’s previous habeas review, the trial court said
the evidence summarized in this court’s opinion affirming the judgment was sufficient to
conclude beyond a reasonable doubt that defendant was a major participant in the
robbery, who acted with reckless indifference to human life under Banks and Clark.
Further, in making a true finding of a felony-murder special circumstance based on the
evidence introduced at trial, the jury had determined that defendant was either the actual
killer, acted with intent to kill, or was a major participant in the underlying felony who
acted with reckless indifference to human life. Nonetheless, the trial court opted for a
“halfway solution;” that is, to conduct a review of the sufficiency of the evidence at the
prima facie stage applying the factors set forth in Banks and Clark. The trial court
analyzed each factor and determined the evidence was sufficient for a jury to conclude
beyond a reasonable doubt that defendant was a major participant in the robbery (Banks)
and that, in committing the attempted robbery, defendant acted with reckless indifference
to human life (Clark). The trial court held that as long as defendant remained convicted
of felony-murder special circumstance murder, he was ineligible for section 1172.6 relief.
Defendant filed a timely appeal.
II. DISCUSSION
A. Legal Background
The Legislature enacted Senate Bill 1437 to amend the felony-murder rule and
eliminate the natural and probable consequences doctrine for murder. (People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275-277.) To that purpose, Senate
Bill 1437 amended sections 188 and 189 and added former section 1170.95 (now section
1172.6).
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
4
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision
(e), now limits the circumstances under which a person may be convicted of felony
murder: “A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2)
The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as described
in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Section 1172.6 allows those convicted of felony murder or murder under the
natural and probable consequences theory to petition the trial court to vacate and
resentence the defendant. (§ 1172.6, subd. (a).) “If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause.” (§ 1172.6, subd. (c).)
The prima facie inquiry under section former 1172.6, subdivision (c) is “limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 971.) 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.” ’ ” (Ibid.)
Although the court may rely on the record of conviction (including a prior appellate court
opinion) in determining whether defendant has made a prima facie showing, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at p. 972; see id. at p. 971.)
B. Analysis
Section 190.2 provides that, for the purposes of those special circumstances based
on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery,
5
an aider and abettor must have been a “major participant” and have acted “with reckless
indifference to human life.” (§ 190.2, subd. (d); Banks, supra, 61 Cal.4th at p. 798.) On
its face, a special circumstance finding satisfies the requirements for accomplice murder
liability even after Senate Bill 1437. (§ 189, subd. (e).)
However, resolving a split of authority, our Supreme Court has made clear that
where, as here, a defendant’s case “was tried before Banks and Clark, the special
circumstances findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) This is true
even if the trial evidence would have been sufficient to support the finding under Banks
and Clark. (Id. at p. 710.) The Strong court noted that the Banks and Clark cases “both
substantially clarified the law governing findings under . . . section 190.2, subdivision
(d): Banks elucidated what it means to be a major participant and, to a lesser extent, what
it means to act with reckless indifference to human life, while Clark further refined the
reckless indifference inquiry.”
The trial court incorrectly stated that the proper forum for Banks and Clark
challenges was a habeas petition. To be sure, as Strong noted, before Senate Bill 1437,
the effect of these decisions was litigated largely in habeas corpus proceedings
challenging special circumstance findings. (Strong, supra, 13 Cal.5th at pp. 706-707.)
However, our Supreme Court in Strong pointed out that, after Banks and Clark but before
the changes to section 189 wrought by Senate Bill 1437, a defendant seeking habeas
relief could have sought relief to vacate the special circumstance finding but not the
underlying conviction. (Strong, supra, at pp. 711-712.) The court also observed that
nothing in section 1172.6 requires a defendant to challenge a special circumstance
finding by a habeas petition. (Strong, supra, at p. 713.)
Further, the court in Strong rejected the proposition that prior special
circumstances findings foreclose relief under section 1172.6 under principles of issue
6
preclusion, in light of the “well-settled equitable exception” for significant change in the
law, as represented by Banks and Clark. (Strong, supra, 13 Cal.5th at pp. 715-718.)
Lastly, the Strong court also rejected the idea that a trial court may deny a petition
under section 1172.6 at the prima facie stage if it independently examines the evidence
applying Banks and Clark factors. (Strong, supra, 13 Cal.5th at pp. 718-720.) The court
reasoned that Banks and Clark guiding factors would have altered trial proceedings,
including the evidence defense counsel would have sought to introduce, as well as
counsel’s trial strategies and a determination whether to request optional Banks and Clark
instructions to guide the jury, with the possibility of the different outcomes resulting. (Id.
at pp. 719-720.) In addition, an after-the-fact Banks and Clark review would not account
for the fact that prior findings were made beyond a reasonable doubt but under outdated
standards, and any review applying correct legal standards would not involve a
determination beyond a reasonable doubt. (Id. at p. 720.)
Applying the principles articulated in Strong, we conclude the trial court
improperly denied defendant’s petition at the prima facie stage. The jury made its special
circumstance finding long before Banks and Clark. Under Strong, that finding does not
preclude defendant from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th
at p. 721.) Contrary to the trial court’s view, a habeas petition is not the only proper
forum to raise Banks and Clark factors; indeed, habeas cannot provide equivalent relief to
a section 1172.6 petition since habeas only challenges the special circumstance finding
and not the underlying murder conviction. (Strong, supra, at pp. 711-713.) Nor is the
trial court’s review of the evidence applying Banks and Clark factors a proper basis to
deny a petition under section 1172.6. (Strong, supra, at pp. 719-720.)
Defendant’s section 1172.6 petition was facially sufficient and alleged the
essential facts necessary for relief. The record does not contain anything establishing that
defendant is ineligible for relief as a matter of law. Therefore, we must remand the
matter to the trial court to issue an order to show cause, and, as necessary, conduct an
7
evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion on the ultimate
resolution of the petition.4
III. DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is reversed. On
remand, the court is directed to issue an order to show cause, and, to the extent necessary,
hold an evidentiary hearing on the petition.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
HOCH, J.
4 In light of our conclusion that Strong requires remand, we do not reach defendant’s pre-
Strong contentions on appeal, inter alia, that denial of his prior habeas corpus petition
based on Banks was not a decision on the merits, the trial court improperly relied on the
summary of facts in our prior opinion, and the trial court improperly conducted a review
of the evidence under Banks and Clark.
8