Filed 10/9/20 P. v. Roberts CA2/3
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B302244
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA295768)
v.
JOSHUA DEREK ROBERTS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kristen J. Inberg and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Joshua Derek Roberts petitioned for resentencing under
Penal Code1 section 1170.95. The trial court summarily denied
the petition without appointing counsel for Roberts. He appeals
and contends that he was entitled to have counsel appointed. We
reject this contention.
BACKGROUND
In 2007, Roberts was tried for and found guilty of the
murder of Donte Loeb. Per the Court of Appeal opinion affirming
the judgment of conviction, the evidence was that Loeb was
taking out the trash one night. (People v. Roberts (Nov. 18, 2008,
B201071) [nonpub. opn.].) Loeb’s mother heard gunshots.
Looking outside, she saw two men, one in the driver’s seat of a
car and the second standing next to the car. Loeb was leaning on
a flowerbed, holding his side. He had been shot four times,
fatally. (Id. at p. 2.) Loeb’s mother identified Roberts and Derek
Daron Cooper as the two men she saw that night. (Id. at pp. 1–
2.) She said Roberts was the car’s driver. Two other witnesses
identified Roberts, and one witness said that Roberts and Cooper
had guns. Another witness heard someone say, “ ‘What’s up,
Blood?’ ” (Id. at p. 3.) Cooper’s former girlfriend testified that
whenever she, Cooper, and Roberts passed the spot where Loeb
had been shot, Cooper and Roberts would say that’s “ ‘where we
flat lined that guy.’ ” (Id. at p. 4.)
The jury found Roberts guilty of first degree murder (§ 187,
subd. (a)). The jury found not true a personal gun use allegation
(§ 12022.53, subd. (d)) but found true a principal gun-use
allegation (§ 12022.53, subds. (d) & (e)(1)). The jury also found a
1 All further statutory references are to the Penal Code.
2
gang allegation true (§ 186.22, subd. (b)(1)(A)). On July 26, 2007,
the trial court sentenced Roberts to 50 years to life.
Thereafter, our Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), which took effect January 1, 2019. That
law amended the felony-murder rule and eliminated the natural
and probable consequences doctrine as it relates to murder, all to
the end of ensuring that a person’s sentence is commensurate
with the person’s criminal culpability. Based on that new law, a
person convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing if certain
conditions are met. (§ 1170.95.)
Roberts petitioned for resentencing under Senate Bill
No. 1437. In his form petition, Roberts checked boxes indicating:
(1) a complaint, information or indictment had been filed against
him that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine, (2) he was convicted of first or second
degree murder under one of those doctrines, and (3) he could not
now be convicted of first or second degree murder because of
changes to sections 188 and 189. Roberts also checked boxes to
indicate he was not the actual killer and had been convicted of
second degree murder under the natural and probable
consequences or the felony-murder doctrines. He did not ask the
court to appoint counsel for him during the resentencing process.
The trial court summarily denied the petition without
appointing counsel for Roberts. In denying the petition, the trial
court said it had relied on People v. Roberts, supra, B201071, the
court file containing minutes of the proceedings, jury
instructions, and verdict forms. Those documents showed that
3
the case was not prosecuted under either the felony murder or
natural probable consequences doctrines and that the jury was
not instructed on either of those theories. Instead, Roberts was
convicted as a principal, under CALJIC Nos. 3.00 and 3.01, so the
jury necessarily found that he harbored the requisite specific
intent to kill either as a direct perpetrator or aider and abettor.
DISCUSSION
Roberts contends the trial court violated his state and
federal constitutional rights by summarily denying his petition
without appointing counsel for him.2 As we now explain, our
principal task in interpreting a statute is to determine legislative
intent and to give effect to the law’s purpose. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 328, fn. 8 (Verdugo), review granted
Mar. 18, 2020, S260493.) Our task leads us to conclude that the
trial court properly summarily denied the petition.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And, a participant in
2 This issue is currently on review in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
Specifically, the Supreme Court is considering whether superior
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95 and when the right to
appointed counsel arises under subdivision (c) of that section.
4
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
murder ‘under a theory of felony murder or murder under the
natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Section 1170.95 provides for multiple reviews of a petition
by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th
892, 897–898, review granted Aug. 12, 2020, S263219; People v.
Drayton, supra, 47 Cal.App.5th at p. 974; People v. Cornelius
(2020) 44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; Verdugo, supra, 44 Cal.App.5th at p. 328; but see
People v. Cooper (2020) 54 Cal.App.5th 106.) Subdivision (b) of
section 1170.95 describes an initial review to determine the facial
sufficiency of the petition. (Verdugo, at p. 328.) To be facially
sufficient, the petition must contain the petitioner’s declaration
that the petitioner is eligible for relief according to the criteria in
subdivision (a), the case number and year of conviction, and
whether the petitioner is requesting appointment of counsel.
(§ 1170.95, subd. (b)(1).) If the petition is missing any of this
information “and cannot be readily ascertained by the court, the
5
court may deny the petition without prejudice.” (§ 1170.95,
subd. (b)(2).) This initial review amounts essentially to a
ministerial review to ensure that the right boxes are checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “The court shall review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
Court of Appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939). If these documents reveal ineligibility for relief, the
trial court can dismiss the petition. (Verdugo, at p. 330.)
6
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
We agree with those Courts of Appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “indicate the Legislature intended
to create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing by
the parties.” (Verdugo, supra, 44 Cal.App.5th at p. 332, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise that
counsel must be appointed once a petitioner files a facially
sufficient petition renders subdivision (c) redundant to
subdivision (b)(2).
And, where a cursory review of the record of conviction
shows that the petitioner is not entitled to relief under Senate
Bill No. 1437, it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
7
appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous.’ ” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1138.)
Here, Roberts’s contention that the trial court violated his
constitutional rights by failing to appoint counsel for him fails for
two reasons. First, Roberts did not ask for counsel.
Second, even if the trial court nonetheless should have
ignored Roberts’s wishes, it properly denied the petition
summarily without appointing counsel. The record of conviction
establishes that Roberts was not convicted of murder under
either a felony murder or natural and probable consequences
theory. The information alleged one sole count of murder against
Roberts. And the jury was not instructed on felony murder or on
the natural and probable consequences doctrine. Rather, the jury
was instructed on aider and abettor liability under CALJIC
Nos. 3.00 and 3.01. This instructional scenario accords with the
background. That is, Roberts and his accomplice, both armed,
approached the victim, and one or both shot him. After, Roberts
and his accomplice commented that they had shot the victim.
Roberts was therefore convicted as a direct aider and abettor who
acted with intent to kill. As such, Senate Bill No. 1437 does not
apply to him. “One who directly aids and abets another who
commits murder is thus liable for murder under the new law just
as he or she was liable under the old law.” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1135.)
8
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
9
LAVIN, J., Dissenting:
Defendant Joshua Roberts filed a facially sufficient petition
that alleged entitlement to relief under Penal Code section
1170.95 (Section 1170.95). After reviewing the court file,
however, the trial judge summarily denied the petition without
input from Roberts. For the reasons set forth in my dissent in
People v. Tarkington (2020) 49 Cal.App.5th 892, 917, review
granted August 12, 2020, S263219, this was error. (See also
People v. Cooper (2020) 54 Cal.App.5th 106, 112 [trial court must
give the parties an opportunity to submit briefing before denying
a facially sufficient petition].)
Section 1170.95 also does not permit the trial court to
undertake an investigation if the petition is complete and alleges
eligibility under the statute. Indeed, “[b]y undertaking a
collateral investigation, the [trial] judge abdicates his or her
responsibility for deciding the parties’ dispute on the pleadings
and evidence properly brought before the court.” (Guadalupe A. v.
Superior Court (1991) 234 Cal.App.3d 100, 109, citing Wenger v.
Commission on Judicial Performance (1981) 29 Cal.3d 615, 632,
disapproved on other grounds in Doan v. Commission on Judicial
Performance (1995) 11 Cal.4th 294.) This is a matter of due
process. (See Conservatorship of Schaeffer (2002) 98 Cal.App.4th
159, 164 [the court’s action amounted to an ex parte proceeding
or private investigation]; see also People v. Ayala (2000) 24
Cal.4th 243, 262 [“As a general matter, ex parte proceedings are
disfavored.”].) And even if the trial court could take judicial
notice of matters not tendered by the parties, it failed to comply
with the process prescribed by the Evidence Code. (See People v.
Banda (2018) 26 Cal.App.5th 349, 360.)
Nor should this court have taken judicial notice of the truth
of the facts found and recited in the prior appellate opinion and
the underlying record in that appeal. (See Epstein v. Superior
Court (2011) 193 Cal.App.4th 1405, 1409, fn. 1 [“to the extent
that the statutory procedure contemplates a trial of disputed
facts, it is ‘singularly inappropriate for appellate courts, which
are not equipped to try issues of fact’ ”]; see also Kilroy v. State of
California (2004) 119 Cal.App.4th 140, 150 [it is permissible to
judicially notice the fact that a judge ruled to suppress evidence,
but improper to take judicial notice of judge’s findings supporting
the order].)
I would reverse the order and remand for further
proceedings.
LAVIN, J.
2