Filed 1/6/21 P. v. Robson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C089152
Plaintiff and Respondent, (Super. Ct. No. 04F06813)
v.
JUSTIN WAYNE ROBSON,
Defendant and Appellant.
On June 28, 2006, a jury convicted defendant Justin Wayne Robson of first degree
murder with a special circumstance that he had been engaged in robbery (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17))1 and found true the allegation that he had
personally used a firearm (§ 12022.53, subd. (d)). The jury also found true that
defendant’s codefendant, Ira Gordan, had discharged a firearm causing death. Thereafter,
defendant was sentenced to life without the possibility of parole, plus an additional
1 Undesignated statutory references are to the Penal Code.
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determinate term of 10 years. We affirmed this judgment in People v. Gordon et al.
(July 27, 2010, C056183) [nonpub. opn.] (Gordon).
On January 7, 2019, defendant sought resentencing pursuant to section 1170.95 in
light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg. Sess.), which
“ ‘amend[ed] the felony murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018,
ch. 1015, § 1, subd. (f).)” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review
granted Mar. 18, 2020, S260493 (Verdugo).)
Defendant’s pro. per. form petition for resentencing checked boxes declaring he
had been prosecuted and convicted of felony murder and could not now be convicted of
either first or second degree murder because of changes made to sections 188 and 189.
This petition further declared defendant was not the actual killer and had not acted “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.” However, the petition failed to
declare that defendant “was not a major participant in the felony or . . . did not act with
reckless indifference to human life during the course of the crime or felony.” The
superior court summarily denied defendant’s petition without holding a hearing or
appointing counsel. Defendant timely appealed, asserting the court erred by summarily
denying his petition without first appointing counsel.
Because defendant failed to aver that he was not a major participant and did not
act with reckless indifference to human life, his petition was facially insufficient and
failed to establish his eligibility for relief. (§§ 189, subd. (e)(3), 1170.95, subd. (a)(3).)
However, the denial of his petition was without prejudice; he could correct this omission
by bringing a successive petition expressly alleging the required facts. (§ 1170.95, subd.
(b)(2).) Rather than putting him to a procedural task that would only delay resolution of
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this matter, we will instead address the ultimate issue and conclude that his claim is not
only procedurally defective but fails as a substantive matter. We thus affirm the
judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s petition is largely bereft of details concerning his trial and conviction.
We granted defendant’s motion to incorporate by reference the record in his prior appeal
in Gordon, supra, C056183. In determining whether a petitioner is ineligible for relief as
a matter of law, the trial court may evaluate “documents in the court file or otherwise part
of the record of conviction that are readily ascertainable . . . .” (Verdugo, supra,
44 Cal.App.5th at p. 329, rev. granted.) Our earlier unpublished opinion is part of
defendant’s record of conviction (id. at p. 333) and we extract therefrom background
information to provide context for our discussion.
According to our opinion, defendant and his two codefendants, Gordon and
Jamaur Wilson, were in the parking lot of a liquor store when the murder victim drove up
with his girlfriend. The victim and his girlfriend went into the store. As they returned,
Gordon entered the car, sat in the rear passenger seat, and asked the victim if he would
give them a ride. Defendant then got into the rear seat behind the victim. Wilson stood
next to the driver’s window of the car. The victim declined Gordon’s ride request. All
three defendants began striking the victim. Defendant pistol-whipped the victim multiple
times and then got out of the car, joining Wilson next to the driver’s window. Gordon,
who remained in the car, told the victim to give him all his money and everything he had
in his pockets. The girlfriend ran into the store to call for help. As she returned the
victim appeared to be trying to get his wallet out of his pocket. She then observed flashes
and heard gunshots with each flash. Defendant was outside the car, holding a gun
pointed at the ground. Gordon, who remained in the car seated behind the victim, had
pulled out a semiautomatic handgun.
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The three defendants fled to an apartment complex where they all lived and where
they split some marijuana, money, and pills. A revolver and a semiautomatic handgun
were recovered from defendant’s apartment. The bullets recovered from the victim’s
body were fired from the .380-caliber semiautomatic. All three bullets were consistent
with the victim’s sitting in the driver’s seat of the vehicle and being shot from the back
seat on the right passenger side.
DISCUSSION
As we noted in our opinion, the prosecution was not required to prove that
defendant was the shooter or an aider and abettor. However, the People also alleged and
the jury found true the robbery-murder special circumstance, which authorizes a sentence
of life without the possibility of parole for “a major participant” in a felony murder who
acted with “reckless indifference to human life.” (§ 190.2, subds. (a)(17) & (d).) These
are also the precise facts the prosecution must prove in order to establish guilt under the
felony-murder statute as amended by Senate Bill No. 1437. Conversely, a petitioner
seeking relief under 1170.95 must aver that he “was not a major participant in the felony
or . . . did not act with reckless indifference to human life during the course of the crime
or felony.”
The People argue that defendant cannot disprove facts established as a matter of
law by a jury. Defendant, supported by case authority, disagrees. He points to the
Supreme Court’s opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522 (Clark), issued after the jury’s finding and following our review of
that finding in the present case. In Banks and Clark the court construed “major
participant” and “reckless indifference to human life” in a manner that differed from
earlier constructions of the term. According to People v. Torres (2020) 46 Cal.App.5th
1168, review granted June 24, 2020, S262011, a case relied on by defendant, in light of
the Supreme Court’s opinions, we “cannot simply defer to the jury’s pre-Banks and Clark
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factual findings that [defendant] was a major participant who acted with reckless
indifference to human life as those terms were interpreted at the time.” (Id. at p. 1179.)
Further, according to People v. Smith (2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835, another case cited by defendant, “Section 1170.95 provides ‘the
petitioner may rely on the record of conviction or offer new or additional evidence to
meet [his] burden[ ].’ (§ 1170, subd. (d)(3).) It is conceivable that [defendant] may be
able to provide evidence not presented at trial that would demonstrate either that he was
not a major participant in the robbery or did not act with reckless indifference to human
life. By ruling prior to the appointment of counsel, the trial court deprived [defendant] of
the opportunity to develop, with the aid of counsel, a factual record beyond the record of
conviction.” (Id. at p. 95, fn. omitted.)
With respect, we disagree with Torres and Smith “because, in our view, they rest
on a misunderstanding of the effect of Banks and Clark, and they overlook the plain
language of section 1170.95.” (People v. Jones (2020) 56 Cal.App.5th 474, 483.)
The Banks and Clark decisions did not pronounce new standards for the
determination of “major participant” and “reckless indifference.” The pattern jury
instructions that guide juries in determining felony-murder special circumstances remain
the same. The facts determined by defendant’s jury are the same as the facts that would
be determined by a jury today.
Section 1170.95 expressly limits evidentiary hearings to circumstances where a
petitioner can demonstrate they “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a)(3), italics added.) “[T]here is no basis to conclude as a general matter that a
pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or
resolved different factual issues, answered different questions, or applied different
standards. The mandatory instructions did not change, and the pre-Banks and Clark jury
necessarily resolved the same factual issues beyond a reasonable doubt that a post-Banks
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and Clark jury would necessarily resolve beyond a reasonable doubt. [¶] Of course, jury
findings in a final judgment are generally considered to be valid and binding unless and
until they are overturned by collateral attack.” (People v. Nunez (2020) 57 Cal.App.5th
78, 94.)
Like the defendant in Jones, defendant here is not seeking relief “because of” the
changes to section 189 that provide a basis for challenging his murder conviction but
because of purported changes in the law wrought by Banks and Clark that provide a basis
for challenging his special circumstance finding. (See also People v. Allison (2020)
55 Cal.App.5th 449, 458.) The appropriate vehicle for asserting a challenge to the special
circumstances finding is not a petition under section 1170.95. Section 1170.95 does not
permit a court to ignore express findings of a jury or to supplant them with new findings
based on evidence provided at a hearing where the People would again have the burden
of persuasion beyond a reasonable doubt. If defendant believes the jury finding lacks
evidentiary support, the appropriate procedure for challenging it is by a petition for
habeas corpus. “When a defendant seeks habeas corpus relief, the underlying judgment
is presumed valid. [Citation.] In a habeas corpus challenge to the sufficiency of the
evidence to support a special circumstance finding, the ‘standard of review . . . is
whether, when evidence that is reasonable, credible, and of solid value is viewed “in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable doubt.” ’ ” (In re Bennett (2018)
26 Cal.App.5th 1002, 1018, quoting Clark, supra, 63 Cal.4th at p. 610.) A petitioner who
challenges a pre-Banks/Clark finding on habeas must establish that the record contains
insufficient evidence to support a conclusion they acted as a major participant or with
reckless indifference to human life. (People v. Duvall (1995) 9 Cal.4th 464, 474.)
Though we recognize the split in appellate decisions on this issue, we believe the
better analysis is set forth in People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted October 14, 2020, S264978, People v. Murillo (2020) 54 Cal.App.5th 160,
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review granted November 18, 2020, S264978, Jones, Nunez, and other cases that disagree
with Smith and Torres. Accordingly, we conclude here that defendant’s special
circumstance finding renders him ineligible for relief under section 1170.95 as a matter of
law. The petition was properly denied without appointment of counsel or an evidentiary
hearing.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HOCH, J.
/s/
RENNER, J.
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