People v. Robinson CA1/5

Filed 8/3/23 P. v. Robinson CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A167017
v. (City & County of San Francisco
LENORA ROBINSON, Super. Ct. Nos. SCN19717302
& CT2217961)
Defendant and Appellant.
Defendant and appellant Lenora Robinson appeals the trial court’s
denial of plaintiff and respondent the People of the State of California’s
(People) petition for resentencing under Penal Code1 section 1172.1.2 After
filing the petition, the People subsequently moved to withdraw it. The trial
court denied the People’s motion to withdraw but denied Robinson’s petition.
The court held it could not vacate Robinson’s conviction and resentence him
under section 1172.1 because doing so would mean impermissibly striking a
1 All further statutory references are to the Penal Code unless
otherwise specified.
2 The petition was originally filed under section 1170.03.
“Effective
June 30, 2022, ‘[t]he Legislature . . . renumbered section 1170.03 to section
1172.1, but made no substantive changes.’ ” (People v. Braggs (2022) 85
Cal.App.5th 809, 818 (Braggs).) For clarity and consistency, we will only
reference section 1172.1.
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special circumstance finding. We affirm on the grounds that there is no relief
available to Robinson under section 1172.1.
I. BACKGROUND
Following a jury trial in 2006, Robinson was convicted of first degree
murder (§ 187), robbery (§ 212.5, subd. (c)), attempted robbery (§§ 664, 212.5,
subd. (c)), conspiracy to commit robbery (§ 182, subd. (a)(1)), and being an ex-
felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found true
the special circumstance that the murder was committed during the
attempted robbery. (§ 190.2, subd. (a)(17)(A).) The trial court sentenced
Robinson to life without the possibility of parole.
In March 2022, the People filed a petition for resentencing pursuant to
section 1172.1. Specifically, the People requested “that the Court resentence
Robinson to a lesser included conviction and eliminate the special
circumstance enhancement.” In October 2022, the People filed a motion to
withdraw its petition based on information contained in a recent risk
assessment. Robinson opposed the motion. The People then filed a
supplemental motion and argued that section 1385.1 prohibits the trial court
from dismissing or striking a special circumstance finding. The People cited
two recent cases from this District, including one from this Division, in
support: People v. Caparaz (2022) 80 Cal.App.5th 669 (Caparaz) and People
v. Garcia (2022) 83 Cal.App.5th 240 (Garcia).
At the hearing on the resentencing petition, the trial court denied the
People’s motion to withdraw. The court then denied the petition itself on the
grounds that Caparaz and Garcia made clear the court “cannot maneuver the
case in such a way as to dismiss the special circumstance under [section]
1385.1.” The court therefore concluded it could not grant relief to Robinson
as a matter of law. The court further noted that section 1172.1, subdivision
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(a)(3) requires the concurrence of the district attorney before the court could
“vacate a conviction to a lesser or a related offense.” The court asked the
district attorney to confirm she was not concurring to a lesser offense and she
responded, “That’s correct.”
Robinson timely appealed.
II. DISCUSSION
A. Law and Standard of Review
“When a defendant, upon conviction for a felony offense, has been
committed to the custody of the Secretary of the Department of Corrections
and Rehabilitation[,] . . . the court may, . . . at any time upon the
recommendation of . . . the district attorney of the county in which the
defendant was sentenced, . . . recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if they had not
previously been sentenced, . . . provided the new sentence, if any, is no
greater than the initial sentence.” (§ 1172.1, subd. (a)(1).) In response to the
recommendation, “[t]he resentencing court may, in the interest of justice . . .
[¶] . . . [r]educe a defendant’s term of imprisonment by modifying the
sentence” (id., subd. (a)(3)(A)) or “[v]acate the defendant’s conviction and
impose judgment on any necessarily included lesser offense or lesser related
offense . . . and then resentence the defendant to a reduced term of
imprisonment, with the concurrence of both the defendant and the district
attorney” (id., subd. (a)(3)(B)). “If a resentencing request . . . is from . . . a
district attorney [¶] . . . [¶] There shall be a presumption favoring recall and
sentencing of the defendant, which may only be overcome if a court finds the
defendant is an unreasonable risk of danger to public safety, as defined in
subdivision (c) of Section 1170.18.” (§ 1172,1, subd. (b)(3).)
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“We apply the abuse of discretion standard of review to a trial court’s
denial of recall. [Citations.] We review questions of statutory interpretation
de novo.” (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082.)
B. There is No Relief That Can Be Granted
Having been convicted of first degree murder with a special
circumstance finding, Robinson faced “only two possible punishments[:]
death or life imprisonment without possibility of parole [(LWOP)].” (People v.
Mora (1995) 39 Cal.App.4th 607, 614.) Thus, his LWOP sentence may only
be reduced if his first degree murder conviction is vacated or his special
circumstance finding is stricken or dismissed. Robinson concedes that the
special circumstance finding may not be stricken or dismissed under section
1172.1 because section 1385.1 prohibits the striking or dismissal of “any
special circumstance which is admitted by a plea of guilty or nolo contendere
or is found by a jury or court.” He nonetheless contends the trial court may
vacate his first degree murder conviction and resentence him based on a
“lesser offense or lesser related offense” pursuant to section 1172.1,
subdivision (a)(3)(B) because the court would not be dismissing a special
circumstance. According to Robinson, the special circumstance finding is
simply eliminated as a collateral consequence, which is not prohibited by
section 1385.1.
We need not, however, reach the merits of Robinson’s contention
because, even if Robinson were correct, he is not entitled to relief under
section 1172.1, subdivision (a)(3)(B). Under that subparagraph, the trial
court may only vacate his first degree murder conviction if the district
attorney concurs. (§ 1172.1, subd. (a)(3)(B).) Here, as the People note , the
district attorney did not concur with vacating that conviction and
resentencing Robinson to a lesser included or lesser related offense.
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Robinson does not dispute this. Nor does he argue that the district attorney
was prohibited from refusing to concur. Therefore, even if we issued a
remand, the trial court lacks the power under section 1172.1 to vacate his
first degree murder conviction.
And absent that power, the trial court cannot grant any relief to
Robinson because the only other form of relief the court could provide under
section 1172.1 is unavailable to him. Under section 1172.1, subdivision
(a)(3)(A), the trial court may also “[r]educe a defendant’s term of
imprisonment by modifying the sentence.” (§ 1172.1, subd. (a)(3)(A).) But
under our reasoning in Garcia, supra, 83 Cal.App.5th 240, this subdivision
does not give the court the power to do so by striking or dismissing the
special circumstance finding in contravention of section 1385.1.
In Garcia, the defendant was convicted of first degree murder,
kidnapping, and robbery. (83 Cal.App.5th at pp. 243–244.) The trial court
sentenced him to LWOP based on a special circumstance finding and stayed
the sentences on the lesser counts. (Ibid.) On appeal, the defendant argued
he was entitled to resentencing based on an amendment to section 654, which
gave the court discretion to impose a lesser term of imprisonment where
multiple terms were available for the same act. (Id. at p. 256.) This Division
held that pursuant to section 1385.1, the trial court “has no authority or
discretion to strike a special circumstance finding in order to reduce a
defendant’s punishment.” (Id. at p. 257.) Under section 654, the trial court
cannot “simply ignore a special circumstance finding and impose a lesser
term of punishment at sentencing, effectively ‘striking’ the special
circumstance finding.” (Ibid.) Likewise, under section 1172.1, subdivision
(a)(3)(A), the trial court cannot reduce Robinson’s “term of imprisonment” by
effectively striking his special circumstance finding. (See Garcia, at p. 257.)
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This is prohibited by section 1385.1, which applies “[n]otwithstanding . . . any
other provision of law.” Robinson does not argue otherwise. Accordingly,
there is no relief available to Robinson under section 1172.1.
Finally, Robinson’s invocation of the “presumption favoring recall and
resentencing” found in section 1172.1, subdivision (b)(2), does not compel a
contrary conclusion. That presumption only applies “to the initial
determination of whether to grant a request to recall and resentence”; it does
not affect the actual sentence that the trial court may impose at resentencing
pursuant to section 1172.1. (Braggs, supra, 85 Cal.App.5th at p. 820.)
Because the trial court in this case lacked the power under section 1172.1 to
reduce Robinson’s LWOP sentence either by vacating his first degree murder
conviction or by striking or dismissing his special circumstance finding, it did
not abuse its discretion in denying the petition.
III. DISPOSITION
The order denying the section 1172.1 petition is affirmed.
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CHOU, J.
We concur.
JACKSON, P. J.
SIMONS, J.
People v. Robinson / A167017
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