People v. Robinson CA1/5

Filed 7/8/21 P. v. Robinson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A158229
v.
LENORA ROBINSON, (City and County of San
Francisco Super. Ct. No.
Defendant and Appellant.
SCN197173)

Appellant Lenora Robinson was sentenced to prison for life
without the possibility of parole (LWOP) based on her conviction
of first degree murder with special circumstances under a
felony-murder theory after her cohort shot the victim of an
attempted robbery in 2005. (§§ 187, 190.2, subd. (a)(17)(A).)1 As
a non-killer who was not alleged to have acted with an intent to
kill, she was found to have acted “with reckless indifference to
human life and as a major participant” in the underlying felony.
(§ 190.2, subd. (d).)
About ten years after Robinson’s trial, the Supreme Court
issued its decisions in People v. Banks (2015) 61 Cal.4th 788

Further statutory references are to the Penal Code unless
1

otherwise indicated.

1
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). It
refined the definition of “major participant” and “reckless
indifference to human life” by construing those terms in “a
significantly different, and narrower manner than courts had
previously construed the statute.” (People v. Torres (2020) 46
Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011
(Torres).)
In 2018, the Legislature enacted Senate Bill 1437
(2017–2018 Reg. Sess.), which, among other things, limited the
felony-murder rule to cases where the defendant was the actual
killer, acted with an intent to kill, or acted as a “major
participant” in the underlying felony and with “reckless
indifference to life” as those terms are used in the statute
defining the felony-murder special circumstance. (§§ 188,
subd. (a)(3); 189, subd. (e).) The Legislature also added section
1170.95, which establishes a procedure for vacating murder
convictions predating the amendment if they could not be
sustained under the amended definition of murder. (§ 1170.95;
Stats. 2018, ch. 1015, § 4.)
Robinson filed a petition under section 1170.95, arguing
that although the jury that convicted her found she had acted as
a major participant and with a reckless indifference to human life
(which would preclude relief under section 1170.95), it did so by
applying a definition of those terms that did not incorporate
Banks and Clark and therefore was not binding. The trial court
denied the petition after an evidentiary hearing.

2
 We conclude the special circumstance allegation, without
more, did not establish that Robinson was a major participant
who acted with reckless disregard for life as those terms are now
understood after Banks and Clark. Nor was she barred from
raising this issue in a petition under section 1170.95, rather than
in a petition for a writ of habeas corpus. Because it is not clear
whether the trial court applied the correct burden of proof at the
evidentiary hearing, we remand for a new hearing.
I. BACKGROUND2
A. Underlying Case
At about 11:30 p.m. on May 14, 2005, Robinson and Anissa
Jordan approached Almondo Alston and Floyd Holmes, who were
walking down the street in the Tenderloin area of San Francisco,
and asked them for some “E-tabs.” Greshinal Green then
approached the two men with a gun and told them to lie down on
the sidewalk, pointing the gun at Alston’s chest. Alston and
Holmes complied with the demand and Robinson went through
Alston’s pockets. Holmes was also robbed, but he did not identify
the person who relieved him of his property. He later told police
several times that the gunman held the gun to his head. After
the robbery, Green and Robinson “took off” together and headed
toward Turk Street.
At about 11:45 p.m., Alex Crispi was sitting on a “party
bus” on Taylor Street and noticed what he thought to be an
altercation or drug deal across the street from him. One man,

2The facts are taken from our prior opinion in People v.
Green (Aug. 26, 2009) A115777 [nonpub. opn.].)

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later identified as Carlos Garvin, was walking north and passed
two other “men” walking south. Crispi identified one of the
“men” as Green. It looked like the two “men” attempted to block
Garvin and push him; Green pulled out a gun and shot Garvin at
point-blank range. Garvin fell to the sidewalk after being shot,
and Green reached into his pocket before running south with his
companion. A woman with a wrap on her head was standing a
little bit north of the shooting and did not appear to be with the
attackers; she screamed when the gun went off. The entire
encounter lasted between 10 and 30 seconds.
The shooting was also witnessed by Gail Gatan, who was in
a car waiting to pull into a parking lot when she saw the
altercation. Gatan described the assailants as two men when she
was interviewed by police and at the preliminary hearing. Gatan
also recalled that a woman with her hair in a wrap was about
halfway up the street yelling at the two men to get out of there,
or words to that effect. At trial, Gatan identified one of the men
as Green and the other person, whom she had previously believed
was a male, as Robinson.
Two video surveillance cameras in the area captured events
just before and after the shooting, although they did not show the
shooting itself. A few minutes before the shooting, Green and
Robinson were together near the intersection of Turk Street and
Taylor Street and walked together side by side northbound on
Taylor. Garvin walked by. A few moments later, Green and
Robinson were back at the intersection of Turk and Taylor in “a
quickened walk,” with Robinson in front.

4
 A police officer in a patrol car in the area saw two
individuals running, who slowed their pace to a fast walk after
noticing the presence of the police and turned westbound on Turk
after reaching the intersection of Turk and Taylor. The officer
originally believed the individuals to be two men, the second of
whom was shorter and wearing a “floppy red” hat or beret.
A short while later, police stopped a Toyota Camry driven
by MacDonald Grady that contained Green, Robinson and Jordan
as passengers. Robinson was wearing a red hat and the officers
recognized Green and Robinson as the two people they had seen
running earlier that night. Police found two handguns inside the
Camry, one of which was the murder weapon and which DNA
evidence linked to Green and Jordan; the gun that was not the
murder weapon was linked by DNA evidence to Robinson.
Robinson was jointly tried before a jury with Green, Jordan
and Grady, and was convicted of first degree murder with an
attempted robbery felony-murder special circumstance,
attempted robbery, conspiracy to commit robbery, and possession
of a firearm by an ex-felon, with principal-armed enhancements.
(§§ 211, 664/211, 182, subd. (a)(1); 190.2, subd. (a)(17)(A); former
12021, subd. (a)(1); 12022.53, subd. (d), 12022, subd. (a)(1).) She
was sentenced to prison for LWOP on the murder count. Green
and Jordan were also convicted of first degree murder along with
other charges and allegations. Grady was acquitted.
B. Banks and Clark
California’s felony-murder special circumstance renders a
defendant eligible for the death penalty or life without the

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possibility of parole and applies when the trier of fact finds “[t]he
murder was committed while the defendant was engaged in, or
was an accomplice in, the commission of, attempted commission
of, or the immediate flight after committing, or attempting to
commit” specified felonies including robbery. (§ 190.2, subd.
(a)(17)(A).) Section 190.2, subdivision (d), describes the scope of
the felony murder special circumstance for an aider and abettor
who neither kills nor intends to kill: “[E]very person, not the
actual killer, who, with reckless indifference to human life and as
a major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of
parole. . . .” (§ 190.2, subd. (d).)
In 2015 and 2016, the Supreme Court clarified the factors
properly considered in assessing felony-murder special-
circumstance findings against a non-killer in Banks, supra, 61
Cal.4th 788 and Clark, supra, 63 Cal.4th 522. In Banks, the
Supreme Court identified factors courts should consider in
determining whether a defendant was a “major participant”
under section 190.2, subdivision (d), and in Clark, it identified
the factors that were relevant to reckless indifference to human
life (with some obvious overlap with the major-participant factors
specified in Banks).

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 To determine whether the defendant acted with reckless
indifference, courts must “look to whether a defendant has
“ ‘ “knowingly engag[ed] in criminal activities known to carry a
grave risk of death.” ’ ” (Banks, supra, 61 Cal.4th at p. 801.) The
Clark decision emphasized, “[W]hile the fact that a robbery
involves a gun is a factor beyond the bare statutory requirements
for first degree robbery felony murder, this mere fact, on its own
and with nothing more presented, is not sufficient to support a
finding of reckless indifference to human life for the felony-
murder aider and abettor special circumstance.” (Clark, supra,
at p. 618.) 3
C. Section 1170.95
Effective January 1, 2019, the legislature enacted Senate
Bill 1437, which significantly modified the law relating to
accomplice liability for murder. Among other things, it limited
the felony-murder rule to cases where the defendant was the
actual killer, acted with an intent to kill, or acted as a “major
participant” in the underlying felony and with “reckless
indifference to human life” as those terms are used in the statute

3 The jury in this case was instructed with a pre-
Banks/Clark version of CALCRIM No. 703 which required them
to find that if the defendant was not the actual killer and did not
intend to kill, “1. The defendant was a major participant in the
crime; [¶] AND [¶] 2. When the defendant participated in the
crime, he or she acted with reckless indifference to human life.”
The instruction did not describe the factors relevant to these
elements. CALCRIM No. 703 has since been amended to
incorporate the Banks/Clark factors, although this is not
constitutionally compelled. (People v. Price (2017) 8 Cal.App.5th
409, 451.)

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defining the felony-murder special circumstance. (§§ 188,
subd. (a)(3); 189, subd. (e).) It also established section 1170.95,
under which a person who was convicted of murder under the old
law may seek to have that conviction vacated if she could no
longer be convicted under the murder statutes as amended.
Section 1170.95, subdivision (c) provides the process by
which the court is to decide the petition: “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[’s] 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.” Therefore, no order to show cause
is issued and no hearing is held (§ 1170.95, subd. (d)(1)) unless
the court first determines a prima facie showing of entitlement to
relief.
D. Robinson’s Petition
In 2019, Robinson filed a pro per petition for resentencing
under section 1170.95, alleging that she could not be convicted of
murder because of changes under Senate Bill 1437, in that she
was not the actual killer, did not act with an intent to kill, and
was not a major participant in the felony or did not act with

8
reckless indifference to human life.4 The court appointed counsel
for Robinson. The People filed a response and supplemental
response to the petition and Robinson filed a reply.
The case was heard by the judge who had presided over the
original trial. In a hearing held June 7, 2019, the court heard the
arguments of counsel and discussed the Banks/Clark factors
after reviewing the pleadings. The prosecution argued that
unless the special circumstance finding was set aside in a habeas
corpus proceeding, Robinson could not state a prima facie case for
relief under section 1170.95. The court issued an order to show
cause to allow the parties to present any additional evidence they
believed was necessary to resolve the petition.
At the evidentiary hearing heard July 25, 2019, the
prosecution again argued Robinson’s remedy, if any, was a
petition for writ of habeas corpus. The court rejected the
argument that habeas corpus was the exclusive remedy. It took
judicial notice of the record of conviction5 and indicated that it
would consider a supplemental statement of facts submitted by
the defense because those facts were consistent with its
recollection of the trial evidence and there was no objection by
the People. No additional evidence was presented by either
party. The court then indicated that it would be deciding
whether the criteria of Banks/Clark had been satisfied.

4Co-defendant Jordan also filed a petition for resentencing
under section 1170.95, which was granted in a separate
proceeding.

We take judicial notice of the record on appeal in case
5

number A115777. (Evid. Code, §§452, 459.)

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 The parties argued their interpretation of the evidence,
with defense counsel positing that this was no more than a
run-of-the mill armed robbery that went awry, and the
prosecution arguing that Robinson’s actions in participating in
the first robbery a few minutes before, knowing a gun had been
used and pointed at the victims, was enough to put her on notice
that if she and Green met a victim who resisted, the gun would
be used.
The court noted that during the first robbery, Green had
pointed the gun at vulnerable parts of the victims’ bodies (head
and chest), rather than just showing it to them in his waistband,
and that Robinson had pushed the murder victim during the
second attempted robbery. It indicated there was a degree of
planning because Robinson had acted as a decoy during the first
robbery, and noted that Robinson had shown a complete lack of
surprise after the shooting occurred, as contrasted with a
bystander, who screamed and ran away. The court stated it had
considered the Clark factors, as noted in the prior hearing, and
found that Robinson had acted as a major participant in the
attempted robbery and with reckless indifference to life.
II. DISCUSSION
A. Petition under section 1170.95 v. Habeas Corpus
The People argue that the trial court did not err in denying
the petition under section 1170.95 after an evidentiary hearing,
because it should not have held an evidentiary hearing at all.
They contend the jury’s felony-murder special circumstance
finding required a determination that Robinson was a major

10
participant who acted with reckless indifference to human life,
and that Robinson could not state a prima facie case for relief
unless she first brought a successful habeas corpus proceeding.
Appellate decisions addressing the issue have reached
different conclusions about whether a petition for writ of habeas
corpus is a prerequisite to a section 1170.95 petition when a
special circumstance has been found true but is alleged to be
invalid under Banks/Clark. (Contrast People v. Nunez (2020) 57
Cal.App.5th 78, review granted January 13, 2021, S265918;
People v. Allison (2020) 55 Cal.App.5th 449, review denied
December 23, 2020; People v. Gomez (2020) 52 Cal.App.5th 1,
review granted October 14, 2020, S264033; People v. Galvan
(2020) 52 Cal.App.5th 1134, review granted October 14, 2020,
S264284 [remedy is to attack special circumstance in petition for
writ of habeas corpus]; with Torres, supra, 46 Cal.App.5th at
pp. 1179–1180, review granted June 24, 2020, S262011; People v.
York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020,
S264954 (York); People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020 S262835 (Smith); People v. Harris (2021)
60 Cal.App.5th 939, 956–957, review granted April 28, 2021,
S267802 (Harris) [habeas petition not required; issue may be
raised in petition under § 1170.95].) This issue is currently
pending before the Supreme Court in People v. Strong (2020)
[nonpub. opn.] review granted March 10, 2021, S266606.
We agree with the approach taken in Torres, York, Smith
and Harris for the same three reasons recently discussed by
Division Four of this Court in People v. Secrease (2021) 63

11
Cal.App.5th 231 (Secrease), review granted June 30, 2021,
S268862: “First, the statutory text suggests the Legislature saw
the new section 1170.95 statutory remedy it created as
cumulative to other available remedies, including habeas corpus,
given its express statement in section 1170.95, subdivision (f),
that ‘[t]his section does not diminish or abrogate any rights or
remedies otherwise available to the petitioner.’ Second, section
1170.95 explicitly contemplates that, upon showing a right to
relief, a successful petitioner's “prior [murder] conviction, and
any allegations . . . attached to the conviction, shall be vacated
and the petitioner shall be resentenced on the remaining charges’
(§ 1170.95, subd. (d)(3)), which suggests the Legislature
understood that vacatur of a special circumstance finding may
occur as a consequence of a successful section 1170.95 proceeding.
[Citation.] [¶] Third, we find it significant that section 1170.95,
subdivision (d)(2) expressly provides that ‘[i]f there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony, the court shall vacate the petitioner’s conviction
and resentence the petitioner,’ while omitting any reference to a
felony-murder special-circumstance true finding being ‘an
automatic statutory bar’ to resentencing eligibility.” (Id. at
pp. 256–257.)
B. Standard of Proof and Need for Evidentiary Hearing
At an evidentiary hearing under section 1170.95,
subdivision (d)(3), the prosecutor has the burden “to prove,
beyond a reasonable doubt, that the petitioner is ineligible for

12
resentencing.” (§ 1170.95, subd. (d)(3).) Section 1170.95 does not
affirmatively define the term “ineligible” but rather, sets forth
three conditions that must be satisfied by a petitioner seeking
relief, one of which is “(a)(3) The petitioner could not be convicted
of first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” The parties agreed
in the trial court and agree on appeal that in an evidentiary
hearing under section 1170.95, subdivision (d)(3), the prosecution
bears the burden of proof on this issue beyond a reasonable
doubt.6
Robinson argues the trial court erred by deferring to the
jury’s special circumstance finding and assessing whether it was
supported by substantial evidence under the Banks/Clark line of
cases, rather than by asking whether the People had proved

6 The Supreme Court is currently considering whether the
statute’s requirement that ineligibility be proven beyond a
reasonable doubt means the prosecution must prove beyond a
reasonable doubt to the judge hearing the section 1170.95
petition that the elements of murder under the current law have
been established, or whether it is enough to simply show that
there is substantial evidence from which a reasonable trier of fact
could convict the defendant under the new law. (People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted January 13, 2021,
S265309 [substantial evidence sufficient].) The majority of
published cases issued since Duke have concluded the standard is
beyond a reasonable doubt. (People v. Fortman (2021) 64
Cal.App.5th 217; People v. Clements (2021) 60 Cal.App.5th 597,
613–619 (Clements), review granted April 28, 2021, S267624;
People v. Lopez (2020) 56 Cal.App.5th 936, 947, review granted
February 10, 2021); People v. Rodriguez (2020) 58 Cal.App.5th
227, review granted March 10, 2021,, S266652 [proof beyond a
reasonable doubt].)

13
beyond a reasonable doubt that she was ineligible for
resentencing. (§ 1170.95, subd. (d)(3).) The People argue the
court reached the right result in denying the petition, albeit for
the wrong reasons, because it should not have held an
evidentiary hearing at all.
The People submit that assuming the Banks/Clark issue is
cognizable in a section 1170.95 petition rather than a petition for
a writ of habeas corpus, the issue can and should be resolved
when the court reviews the record of conviction as part of its
prima facie review under section 1170.95, subdivision (c). They
note that a Banks/Clark issue does not involve the resolution of
disputed facts, but is a question of legal insufficiency. (See In re
Miller (2017) 14 Cal.App.5th 960, 980 (Miller).) The People
further argue that because the court conducted a Banks/Clark
review at the evidentiary hearing, it effectively and correctly
found there was no prima facie case and the order denying the
section 1170.95 petition can be denied on that basis.
We are again guided by Secrease, supra, 63 Cal.App.5th
231. In that case, the court held that a pre-Banks/Clark
felony-murder special circumstance finding does not have a
preclusive effect on the question of whether the defendant acted
as a major participant and with reckless disregard for life within
the meaning of section 1170.95. (Secrease, at p. 253–257.) The
procedure laid out in Secrease requires the court to first consider
Banks and Clark “at the section 1170.95, subdivision (c)
entitlement-to-relief stage of the process, where the court’s task
will be narrowly focused on whether, without resolving conflicts

14
in the evidence and making findings, the evidence presented at
trial was sufficient to support the felony-murder
special-circumstance finding under Banks and Clark. If the
answer to that is yes, the section 190.2, subdivision (d) finding
made against [the defendant] forecloses him [or her] from further
litigating that issue, thus rendering him [or her] ineligible for
resentencing relief as a matter of law. If the answer is no, an
order to show cause must issue and an evidentiary hearing must
be held under section 1170.95, subdivision (d)(3).” (Id. at p. 264.)
Should the case proceed to an evidentiary hearing, the court is
bound by the factual determinations necessarily decided by the
jury, but it may make its own determination as to issues not
resolved by the jury. (Id. at p. 247, 254–255.)
We agree with Secrease that if there are disputed
evidentiary issues—issues not necessarily decided by the jury
verdict—which affect whether a defendant will be deemed a
major participant who acted with reckless indifference to life, a
prima facie case has been established and the Banks/Clark
inquiry must be decided at an evidentiary hearing as it was here.
The court decides those factual issues under the
beyond-a-reasonable-doubt standard. (§ 1170.95, subd. (d)(3).)
Were there such evidentiary issues in this case?
As the People acknowledge, there were significant
credibility issues with Gail Gatan, one of the two eyewitnesses to
the attempted robbery to testify at trial. Gatan originally
identified the would-be robbers as two men, and at the
preliminary hearing she identified Greshinal Green and

15
MacDonald Grady (who was tried but not convicted) as the same
two men. Gatan also testified at the preliminary hearing that
Robinson was not the person with Green, but by the time of trial,
the DA had shown Gatan the security camera footage showing
Robinson and Green together, and Gatan identified Green as the
shooter and Robinson as the person who was standing next to
Green. The other eyewitness to the shooting who testified at
trial, Alexander Crispi, also identified Green as the shooter, but
described the person who was with him as a man wearing a coat
with a fur collar and testified at trial that he did not see
Robinson at the scene.
Robinson posits that the evidence would have supported a
finding she was not the person standing next to Green when he
shot Garvin, but was instead the woman that Gatan and Crispi
reported seeing up the street from the shooting. Although the
People argue that in finding the special circumstance true the
jury must have determined that Robinson was the person
standing next to Green, the jury returned no specific findings
that necessitated a determination about the identities of the
parties or their respective roles in the crime, other than the
firearm enhancement showing they believed Green to be the
actual killer. As the People note, Robinson was convicted of
conspiracy and the jury was instructed with CALCRIM No. 417,
which advised them “[a] member of a conspiracy is also
criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that
act is a natural and probable consequence of the common plan or

16
design of the conspiracy.” It is possible the jury convicted
Robinson for her involvement in the robbery scheme even if they
were not convinced she was the person standing at Green’s side.
An evidentiary hearing was required to resolve this factual issue,
which would affect whether Robinson was deemed a major
participant who acted with reckless disregard for life.
This brings us to Robinson’s argument that the court
incorrectly applied a substantial evidence test to this inquiry.
The People acknowledge that if an evidentiary hearing was
required, reversal is in order because although the court made
comments suggesting it was applying the beyond-a-reasonable
doubt standard, it made other comments suggesting it was
applying a substantial evidence standard and deferring to what it
believed were the jury’s findings.
The court indicated it was uncertain whether to apply a
substantial evidence standard or find proof beyond a reasonable
doubt. Defense counsel urged the court to apply a standard of
proof beyond a reasonable doubt, and the court at one point
seemed to agree: “Let’s put it another way. It sounds like then
the only person who’s in a position to make a determination as to
whether this evidence proves beyond a reasonable doubt
whatever it has to be proved to me. We can’t ask the jury. That’s
not possible. Essentially, then, I have to decide whether the
evidence that we’re going to consider proves beyond a reasonable
doubt that these Clark/Banks Criteria have been satisfied.”
Ultimately, though, the ruling is ambiguous on the
standard applied. In denying the petition, the court stated, “The

17
bottom line on this is the jury found the Defendant—found true
beyond a reasonable doubt that the defendant was a major
participant in the crime. I think the evidence shows that beyond
a reasonable doubt. The jury also found that when the Defendant
participated in the crime, she acted with reckless indifference to
human life. I think the evidence shows in the record and in the
course of the trial that that has been proved beyond a reasonable
doubt; therefore, I’m going to deny the petition.” (Italics added.)
Although it is possible to read this to mean that although the
court was acknowledging the jury’s findings it was independently
applying a standard of proof beyond a reasonable doubt, another
interpretation of the remarks is that the court was crediting and
deferring to the jury’s findings.
In light of the People’s concession that reversal would be
required if the evidentiary hearing was appropriate, the case
should be remanded for a new evidentiary hearing so that the
court can consider the evidence under the appropriate standard
and, if it has not already done so, consider whether the People
have proven beyond a reasonable doubt that Robinson was a
major participant who acted with reckless disregard for life.
C. Aranda/Bruton
Robinson contends the court erred in considering evidence
that it deemed inadmissible at trial under People v. Aranda
(1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968)
391 U.S. 123 (Bruton). Our remand makes it unnecessary to
resolve this issue.

18
 For the guidance of the court on remand, we note that
under Crawford v. Washington (2004) 541 U.S. 36 (Crawford),
Aranda-Bruton now extends only to out-of-court statements that
are testimonial in nature. (People v. Cortez (2016) 63 Cal.4th
101, 129; People v. Gallardo (2017) 18 Cal.App.5th 51, 68–69.)
We also note that Aranda-Bruton does not apply in a hearing
before the court. (See People v. Walkkein (1993) 14 Cal.App.4th
1401, 1408.) It does not appear, then, that Aranda-Bruton can
serve as a reason on remand for excluding the statements of
which Robinson now complains.
However, neither the court’s recollections nor statements
that were excluded at trial are part of the record of conviction.
And to the extent they appear only in the clerk’s transcript of
co-defendant Green’s appeal, they cannot be relied upon in
resolving Robinson’s petition. (See People v. Falcon (2020) 57
Cal.App.5th 272, 277, review granted Jan. 27, 2021, S266041
[harmless error to rely on records from co-defendant’s trial when
assessing section 1170.95 petition of defendant who pled guilty,
but proper to use joint preliminary hearing transcript].) The
court can consider such statements only if they are offered by the
parties as “new or additional evidence” under section 1170.95,
subdivision (d)(3). We note that in the previous proceeding,
neither party offered the evidence.

19
 III. DISPOSITION7
The judgment (order denying section 1170.95 petition) is
reversed, and the case is remanded for a new evidentiary hearing
under section 1170.95, subdivision (d).

7 We have denied by separate order Robinson’s companion
petition for writ of habeas corpus. (In re Lenora Robinson (June
8, 2021, A161384) [summarily denying petition].)

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 NEEDHAM, .J.

We concur.

SIMONS, Acting P.J.

RODRIGUEZ, J. *

People v. Robinson / 158229

* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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