People v. Robinson CA2/3

Filed 6/6/22 P. v. Robinson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B317209

Plaintiff and Respondent, (Kern County
Super. Ct. No. BF168297A)
v.

BRANDON NATHANIEL JOEL
ROBINSON,

Defendant and Appellant.

APPEAL from a judgment of the Kern County Superior
Court, John D. Oglesby, Judge. Remanded with directions.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Eric L. Christoffersen, Michael A.
Canzoneri, Carlos A. Martinez, and Daniel B. Bernstein, Deputy
Attorneys General, for Plaintiff and Respondent.
 _________________________
A jury found Brandon Robinson guilty of various offenses
arising out of his sexual assault of three women over the course of
about three months in 2017. During trial, his counsel declared a
doubt as to Robinson’s competence to stand trial. The trial court
appointed a psychologist to examine Robinson under Penal Code 1
section 1368, even though that psychologist had been previously
retained by the defense. The trial court then found that there
was insufficient evidence to hold a competence hearing under
section 1368. Robinson’s primary contention on appeal thus
concerns whether there was substantial evidence to raise a doubt
about his competence to stand trial and whether the
psychologist’s appointment violated, among others, his right to
counsel and attorney-client privilege. He also raises instructional
issues, contends his sentence is cruel and/or unusual
punishment, and argues he is entitled to a Franklin2 hearing.
We reject these contentions but remand for reconsideration of
Robinson’s sentence under recently-enacted ameliorative laws.
BACKGROUND
I. The sexual assaults of Andrea I., Diana J., and J.F.
Robinson was charged with offenses arising out of his
sexual assaults of three women: Andrea I., Diana J., and J.F.

1 All further undesignated statutory references are to the Penal
Code.
2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

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 A. Andrea (counts 1 & 2)
On March 3, 2017, Andrea, who was 33 years old, was
walking home on Wenatchee near Bakersfield College when a
man came up from behind her, put an arm around her neck, and
told her not to scream because he had a gun. He bent her over a
waist-high wall so that her back faced him. He pulled down her
pants and underwear, massaged her vagina with his hands, and
then rubbed his penis against her vagina but did not penetrate
her. After pulling up Andrea’s pants, he took money from her
purse and told her she could go.
B. Diana (counts 3 to 7)
On the morning of April 21, 2017, Diana, a 15-year old high
school sophomore, was walking to the school bus when she
noticed a man behind her. He grabbed her from behind, around
her neck, and told her that if she was smart, she would listen.
Diana waved at a passing car for help, to no avail. The man
choked her harder and told her not to do that again or he would
hurt her. Pointing a gun at her, the man pulled her into an alley,
a distance of about 240 feet from where the man had first
grabbed her.3 From where she had been moved, Diana could see
two men working on a truck, but they couldn’t see her.
The man pushed Diana up against a gate, with her back to
him, and pulled down her shorts. He stuck his fingers and then
his tongue into her vagina. Although he tried, the man’s penis
did not penetrate her vagina. The man told Diana that he needed
money. She offered him the three dollars she had, but he said he

3 A police officer testified that he and a fellow officer measured
the distance from a stop sign near where Diana had first
encountered Robinson to where he assaulted her in the alley.

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needed $15. Saying that she would get him the money if he let
her go home, they walked to her house, where she got the money
and gave it to him. The man said he was sorry and asked if she
was mad at him. Diana later identified Robinson as her assailant
from a photographic lineup.
C. J.F. (counts 8 to 14)
On May 11, 2017, J.F. was a student at Bakersfield
College. While washing her hands in the women’s restroom in
the college’s fine arts building, all the lights suddenly went off
and a man grabbed her from behind, around her neck, and
choked her. Telling her not to scream and that he would kill her,
the man touched her vaginal area with his hands, although J.F.
didn’t think his hand or fingers penetrated her vagina. He
turned J.F. so that she was facing the wall and pulled her pants
down. J.F. could feel him masturbating behind her. She fell, and
he tried to put his penis in her mouth, but she thrashed her head
back and forth to stop him. At this point, police officers came into
the restroom and arrested the man, Robinson.
D. Robinson’s statement
After Robinson was arrested, he gave a statement
admitting he sexually assaulted three women. When the
detective began to ask Robinson about Diana, Robinson
repeatedly said he was not a bad person and wasn’t in his “right
mind.” He hated himself and wanted to make it right. He said,
“I did it. I did it,” and “I just took advantage.” Eventually,
Robinson admitted that he was walking to Bakersfield College
where he was a student when he saw Diana, took her to an alley,
pulled her pants down, and touched her “butt” and vagina with
his hand. His fingers went inside Diana’s vagina, probably twice,

4
and he tried to insert his penis into her “butt.” He had a fake BB
gun and asked her for money, so she got him $15 from her house.
When the detective then asked what happened on
Wenatchee (referring to Andrea) a month before, Robinson
initially denied that he had done anything or was there on March
3. Then he said that he took $100 from her purse, pulled her
pants down, put her over the bricks, and “pulled my thing out”
but didn’t put it in. He did touch her butt with his penis, and he
probably touched her with his fingers.
Robinson then transitioned to an incident in a bathroom
when he turned off the lights because he didn’t want to be
ashamed. He admitted his penis was “over her” and he tried “to
go for the butt” but it did not go into her anus or vagina, although
his penis hit her face. When asked how her clothes came off,
Robinson said he did it all: he pulled her pants down, touched
her vagina, tried to insert his penis in her “butt,” and put his
mouth on her vagina.
E. Defense evidence: Dr. Thomas Middleton
Robinson’s defense was he suffered from a mental disorder
that negated his specific intent to commit various crimes.
Speaking to that defense, Dr. Thomas Middleton, a psychologist,
testified that he evaluated Robinson, and his evaluation included
administering tests. Based on his evaluation, Dr. Middleton
diagnosed Robinson with “Bipolar I disorder; most recent, episode
manic severe with psychotic features” and adult antisocial
behavior. Robinson appeared to the doctor to be a hypomanic,
meaning a little bit manic, based on Robinson’s rapid speech,
racing and disorganized thoughts, and mood fluctuations. He did
not understand what was happening and why he was
incarcerated and kept insisting he was a good person. His insight

5
was impaired, and he reported seeing things, hearing voices, and
having delusional beliefs. Testing revealed severely impaired
executive functioning and neuropsychological status.
Individuals who are bipolar may self-medicate, and
Robinson reported using marijuana, alcohol, cocaine, Xanax, and
LSD. He also had been homeless at times and was unable to
have productive relationships.
II. Verdict and sentence
A jury found Robinson guilty of three counts of assault with
intent to commit rape by force or fear (§§ 220, 261, subd. (a)(2);
counts 1, 5 & 14); two counts of sexual battery (§ 243.4, subd. (a);
counts 2 & 10); sexual penetration by force with a minor 14 or
older with kidnapping allegations found true (§§ 289,
subd. (a)(1)(C), 667.61, subds. (d)(2) & (e)(1); count 3); forcible
oral copulation of a minor with a kidnapping allegation found
true (former § 288a, subd. (c)(2)(C) [renumbered § 287], 667.61,
subds. (d)(2) & (e)(1); count 4); two counts of assault with intent
to commit sodomy (§§ 220, subd. (a)(2), 286, subd. (c)(2)(C);
counts 6 & 13); two counts of criminal threats (§ 422; counts 7 &
8); assault by means of force likely to cause great bodily injury
(§ 245, subd. (a)(4); count 9); assault with intent to commit
forcible oral copulation (§§ 220, former 288a, subd. (c)(2)(A);
count 11); assault with intent to commit sexual penetration
(§§ 220, 289, subd. (a)(1)(A); count 12); and robbery (§ 212.5,
subd. (c); count 15).
On September 26, 2018, the trial court sentenced Robinson
to life without the possibility of parole (LWOP) on count 3 plus a
determinate term of 19 years eight months, comprised of six
years on count 1, eight months on count 8, six years on count 11,
six years on count 14, and one year on count 15. The trial court

6
imposed but stayed sentences on the remaining counts under
section 654, including a second LWOP sentence on count 4.
DISCUSSION
I. Instructional error
Robinson contends that the trial court diluted and lowered
the reasonable doubt standard by prefacing its instructions to the
jury with what the trial court called “editorial comments.” We
disagree.
The due process clause of the United States Constitution
protects a defendant against conviction except on proof beyond a
reasonable doubt of every fact necessary to constitute the charged
crime. (In re Winship (1970) 397 U.S. 358, 364.) Trial courts
thus must take care when departing from standard reasonable
doubt instructions not to suggest either a higher burden of proof
or a lower one. (See, e.g., People v. Johnson (2004) 119
Cal.App.4th 976, 985–986 (Johnson).) Where, for example, a trial
court equated reasonable doubt with everyday, ordinary
decisions, the error was reversible. (Ibid.) In reviewing whether
comments lowered the prosecution’s burden of proof, we
determine de novo whether there is a reasonable likelihood the
jury applied them in an unconstitutional manner. (People v.
Cortez (2016) 63 Cal.4th 101, 130.) We determine the correctness
of jury instructions from the totality of the instructions. (People
v. Carrington (2009) 47 Cal.4th 145, 192.)
Here, Robinson argues that the trial court lowered the
prosecution’s burden of proof when it said:
“But I want to make a couple of comments to you at the
beginning. I will make these editorial comments as we go along
on this. It’s been said that the basis of the law is not logic; the
basis of the law or the foundation of the law is human experience.

7
And the reason I mention that to you is because we put in
technical format rules that have to be followed because the law is
technical and precise as we can make it.
“I think you all have had the experience as a friend of mine
had, where she and her husband went away and left the eldest,
who is a junior or senior in high school, home for the weekend.
Straight A student, no problem. And when they come back,
everything seems normal but the neighbors tell them there was a
wild party in the house while they were gone. Well, the parents
weren’t too upset and they just told him, ‘You can’t have parties
in the house while we’re gone.’ So the next time they went, I
think you can guess where the party was. The party was in the
backyard. So they had to make it clear, expand the rules a little
bit.
“And a little bit of what we do in making laws is that. We
have to come up with a definition that can be precise enough,
that can be understandable and comprehensible and would make
sense from any sort of practical or logical point of view, but yet,
they still are—is the requirement. These elements have to be
met; the law has to be followed. But remember, it’s based on your
practical experience as a human and my practical experience and
historical practical experience, and so realize that these things
that I’m going to discuss, while the terms might be technical, are
a way that we describe what is all of your[ ] common experience.
“When we get into issues of specific intent and general
intent and union of acts and intent, we do these things regularly
and don’t give them a second thought. I often comment that even
my dog can figure out what my intent is at certain times, because
I can walk out in the morning to go to work, and he stays in his
bed and watches me leave in the morning.

8
 “On the weekend, if I walk out to the garage, he’ll be
standing in front of the garage door expecting to go with me to
wherever I’m going, to ride along with me in the truck. And he’s
usually accurate about 90 percent of the time on what I’m doing.
Sometimes I fool him; I’m going into the garage to get something
rather than go somewhere, but he’s able to figure that out.
“And so that’s just part of what we do as humans. We
constantly evaluate [people’s] actions and intentions in everyday
life. Is someone being intentionally rude or are they having a bad
day? Did the person cut us off because they just realized they
missed their exit, or [is] the person impaired or a rude driver?
Did someone bump into us by accident, or was there some intent
to it? These are evaluations we do.
“So, with that, please keep that in the back of your mind.
While we must be precise, these things are based upon
experience that all of us have, at least on basic principles.” The
trial court then began reading the jury instructions.
Robinson’s defense counsel did not object to these
comments, thereby forfeiting any issue on appeal. (See People v.
Virgil (2011) 51 Cal.4th 1210, 1260.) Even so, we consider the
merits of Robinson’s argument. (See generally § 1259 [we may
review any instruction if defendant’s substantial rights affected
even if no objection made]; People v. Van Winkle (1999) 75
Cal.App.4th 133, 139.)
On the merits, the trial court’s comments did not lower the
prosecution’s burden of proof. Rather, the jury was twice
correctly instructed on reasonable doubt, once during
preinstruction with CALCRIM No. 103 and once before retiring
for deliberations with CALCRIM No. 220. The trial court also
preinstructed the jury not to “take anything I say or do during

9
the trial as an indication of what I think about the facts, the
witnesses, or what your verdict should be.”
The challenged comments were made just before the
reading of the formal instructions and not in the context of trying
to elucidate on or to explain the reasonable doubt standard. For
that reason, the cases Robinson cites are distinguishable because
they concern trial courts’ direct comments about the reasonable
doubt standard. (See, e.g., People v. Garcia (1975) 54 Cal.App.3d
61; People v. Johnson (2004) 115 Cal.App.4th 1169; Johnson,
supra, 119 Cal.App.4th at pp. 985–986.) In Garcia, at page 68,
for example, the trial court gave the proper reasonable doubt
instruction but then improperly amplified it by saying, “ ‘In other
words, reasonable doubt means just what the term implies, doubt
based upon reason, doubt that presents itself in the minds of
reasonable people who are weighing the evidence in the scales,
one side against the other, in a logical manner in an effort to
determine wherein lies the truth.’ ” This amplification was
improper because it suggested that a preponderance of the
evidence standard applied. (Id. at pp. 68–69.)
The trial court in People v. Johnson, supra, 115
Cal.App.4th at page 1171, similarly expanded on the reasonable
doubt instruction by saying, “ ‘The burden is proof beyond a
reasonable doubt. A doubt that has reason to it, not a ridiculous
doubt, not a mere possible doubt. Because we all have a possible
doubt whether we will be here tomorrow. That’s certainly a
possibility. We could be run over tonight. God, that would be a
horrible thing, but it’s a possibility. It’s not reasonable for us to
think that we will because we plan our lives around the prospect
of being alive. We take vacations; we get on airplanes. We do all
these things because we have a belief beyond a reasonable doubt

10
that we will be here tomorrow or we will be here in June, in my
case, to go to Hawaii on a vacation. But we wouldn’t plan our
live[ ]s ahead if we had a reasonable doubt that we would, in fact,
be alive.’ ” This comment lowered the reasonable doubt standard
by equating everyday decisions about planning vacations and
scheduling flights with the same depth of deliberative process
required by the reasonable doubt standard. (Id. at p. 1172;
accord, Johnson, supra, 119 Cal.App.4th at pp. 985–986.)
In contrast to these cases, the trial court’s comments here
made no direct or indirect reference to reasonable doubt. Rather,
considered as a whole, the trial court was saying that jurors had
to follow technical, precise rules of law; hence, it analogized to
parents who had to expand the no-parties-in-the-house rule to
parties in the backyard as well. As for the trial judge’s dog who
could tell what the judge was going to do 90 percent of the time,
that was simply the judge’s way of explaining that evaluating
evidence was part of the jurors’ job, which could be informed by
their experiences and common sense. (See, e.g., People v. Venegas
(1998) 18 Cal.4th 47, 80 [jurors may use common sense and good
judgment to evaluate weight of evidence].) In context, the jury
would not have understood the comments to have related to
reasonable doubt. No error occurred.
II. Competency
Dr. Michael Musacco evaluated Robinson for the defense
under Evidence Code section 1017.4 Thereafter, the trial court

4Evidence Code section 1017, subdivision (a), states, “There is no
privilege under this article if the psychotherapist is appointed by
order of a court to examine the patient, but this exception does
not apply where the psychotherapist is appointed by order of the
court upon the request of the lawyer for the defendant in a

11
twice appointed him to evaluate Robinson’s competence to stand
trial under section 1368 and both times found Robinson was
competent to stand trial. Robinson now raises two issues
regarding the competency proceedings. First, there was
substantial evidence to raise a doubt as to Robinson’s competence
to stand trial. Second, appointing Dr. Musacco under section
1368 violated Robinson’s attorney-client and psychotherapist-
patient privileges and his right to counsel.
A. Additional background
Robinson was originally represented by a public defender
who retained Dr. Musacco to evaluate Robinson, apparently
under Evidence Code section 1017. After the public defender was
relieved due to a conflict of interest, attorney Ronald Carter
began representing Robinson. Carter retained Dr. Middleton to
evaluate Robinson for the defense, and it was Dr. Middleton, and
not Dr. Musacco, who testified for the defense at trial before the
jury.
During pretrial proceedings, on April 30, 2018, the trial
court granted a defense motion to have Robinson examined to
determine his competence to stand trial, per section 1368.
Apparently unaware that the defense had previously retained
Dr. Musacco, the trial court appointed him to conduct that
examination—without objection from the defense. In a written
report filed on May 21, 2018, the doctor found that while
Robinson was “experiencing emotional distress associated with

criminal proceeding in order to provide the lawyer with
information needed so that he or she may advise the defendant
whether to enter or withdraw a plea based on insanity or to
present a defense based on his or her mental or emotional
condition.”

12
the seriousness of his crimes,” he may have been exaggerating
“deficits in his trial competency.” The doctor diagnosed Robinson
with major depressive disorder and malingering and opined in
the report that Robinson was competent to stand trial. On May,
22, 2018, the trial court accordingly found that Robinson was
competent to stand trial.
During trial on August 2, 2018, the video recording of
Robinson’s statement to the detective was being played for the
jury. While it was being played, Robinson declared he would not
watch it and was done for the day. After Robinson and the jury
left the courtroom, his counsel reported that Robinson did not
want to watch “anymore of this” and “obviously got very upset
about it.” Counsel said he was trying to determine whether
Robinson could participate in trial, as he “can’t communicate
with me, which has been what’s going on.” Counsel added that
“this has simply gotten worse through the day,” that on prior
days Robinson “had issues,” and the day before he had not paid
attention and instead shuffled through papers and read the
interview. Counsel therefore declared a doubt about Robinson’s
competency and asked for an evaluation under section 1368.
The trial court said it would not grant the motion at that
time but would hold an “abbreviated hearing” and appoint
Dr. Musacco to evaluate Robinson to help it decide whether there
was substantial evidence to support the motion because, based on
its observations of Robinson and counsel’s representations, the
trial court was not persuaded there was substantial evidence to
suspend proceedings.5

5The prosecutor added his observation that Robinson was acting
out of anger and frustration.

13
 Defense counsel now objected to this second appointment of
Dr. Musacco under section 1368, describing it as “inappropriate”
because the doctor had talked to Robinson twice before. Defense
counsel explained that the public defender who had previously
represented Robinson had initially retained Dr. Musacco to
consult with the defense. Notwithstanding that retention, the
trial court thereafter appointed Dr. Musacco to evaluate
Robinson under section 1368, albeit without objection from
defense counsel to that first appointment under section 1368.
The trial court responded that the doctor’s retention by the
defense would have prevented his first appointment under
section 1368—except that the defense had agreed to let the doctor
evaluate him. Defense counsel admitted his mistake, saying that
when Dr. Musacco was appointed to conduct the prior section
1368 evaluation, “to be honest, when that happened, I probably
didn’t—wasn’t in my mind that he had previously talked to the
client, since it was the public defender that had done it.
Although I had the report, and so it is just my bad.”
The trial court overruled the objection to Dr. Musacco and
found that while his retention by the defense would have
normally prevented him from evaluating Robinson under section
1368, the doctor could proceed with the evaluation, as the trial
court thought it was better to have a doctor familiar with
Robinson do it.
Dr. Musacco proceeded to examine Robinson and then to
testify at a hearing out of the jury’s presence. At the hearing, the
doctor described Robinson as being “exceptionally distressed and
distraught” and at his wit’s end. Robinson told the doctor that he
did not want to participate in the court proceedings, he’d had
enough, and he wanted to go to the state hospital to get his head

14
straight. Dr. Musacco was also aware that Robinson’s outburst
in court happened while watching his videotaped statement,
which the doctor surmised was exceptionally uncomfortable for
Robinson because he’d made comments in his statement about
his father, who was in the courtroom.
Dr. Musacco said he had reviewed Robinson’s jail records,
which were the deciding factor in the doctor’s decision. In those
records, Robinson talked about depression and stress but, the
doctor observed, who wouldn’t experience those symptoms in
these circumstances? Otherwise, Robinson was able to
communicate with staff, denied symptoms of mania, and there
was no evidence of psychosis, disruptive behaviors or bipolar
disorder, loss of consciousness or blackouts or impairment in
“reality contact.” While Dr. Musacco agreed that Robinson was
legitimately stressed, there was no evidence of an underlying
illness that would cause Robinson to be incompetent to stand
trial. He also did not find that Robinson was malingering.
On cross-examination, Dr. Musacco disagreed with a
finding by Dr. Middleton made in a written report that Robinson
had a Bipolar I disorder and a possible neurocognitive disorder.
Dr. Musacco criticized Dr. Middleton for basing his diagnosis
solely on Robinson’s self-report and not on “longitudinal”
observations, namely, the year and a half of treatment records
from jail showing that nobody had found evidence of a bipolar
disorder or mania. Dr. Musacco acknowledged that Robinson was
taking Wellbutrin (an antidepressant), Neurontin (a mood
stabilizer), and sleeping medications. But Dr. Musacco also
observed that Robinson had been functioning before his arrest,
e.g., going to school. The doctor admitted he did not have access
to any pre-incarceration treatment records, although he did know

15
that Robinson had been treated as a teenager for ADHD and had
counseling.
Dr. Musacco stated his position that one can only be found
incompetent if there is a mental illness diagnosis. Still, the
doctor agreed that somebody under stress can suffer symptoms of
a mental illness that cause them to be incompetent, but he did
not find that to be the case here because there was no consistency
of symptoms being displayed in other areas. The timing of
Robinson’s disruptive behavior in court was consistent with being
distressed and wanting to avoid the situation, as opposed to a
person who has a major mental illness and is incapable of
participating in proceedings. Therefore, while the doctor thought
that the extent of Robinson’s distress was severe and impacted
his ability to assist his counsel, it was not due to a mental illness:
“[N]ot everyone who engages in disruptive behavior is necessarily
incompetent.” While the doctor agreed that Robinson had a
depressive disorder his symptoms were not occurring across his
daily life as opposed to just in court.
In ruling, the trial court found that Dr. Musacco’s
testimony was consistent with its observation that Robinson was
under tremendous stress, which the trial court suggested had
been building up. This led to Robinson crumpling paper and
using a vulgarity while looking at the judge. The trial court also
noted that Robinson that same day had made a Marsden6 motion
based on defense counsel’s lack of optimism about the success of
the case and had previously participated in the proceedings and
been reasonably compliant. This evidenced to the trial court that
Robinson was able to participate in the proceedings. The trial
court denied the request for a finding under section 1368 and

6 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

16
found that the record did not persuasively show that because of a
mental illness Robinson was incapable of understanding the
nature of the proceedings or unable to assist counsel, as opposed
to unwilling to assist him.7
B. There was insufficient evidence to raise a doubt as to
Robinson’s competence.
We first address Robinson’s contention that there was
substantial evidence to raise a doubt about his competence to
stand trial and therefore the trial court should have held a
competency hearing under section 1368.
Due process forbids trying or convicting a criminal
defendant who is mentally incompetent to stand trial. (U.S.
Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15; People v. Rodas
(2018) 6 Cal.5th 219, 230 (Rodas).) A person is incompetent to
stand trial if, as a result of a mental health disorder or
developmental disability, the defendant is “unable to understand
the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.” (§ 1367.) A trial
court must suspend criminal proceedings if a doubt arises in the
judge’s mind about the defendant’s competence. (§ 1368.) Thus,
if the defendant produces substantial evidence that his mental
illness renders the defendant incapable of understanding the
nature of the proceedings and assisting the defense, then the
defendant has a right to a hearing. (Rodas, at p. 231.)
“[S]ubstantial evidence for this purpose is evidence ‘that
raises a reasonable or bona fide doubt’ as to competence, and the
duty to conduct a competency hearing ‘may arise at any time

7After the trial court ruled, Robinson said he did not want to be
present for the day but would come to court the next day.

17
prior to judgment.’ ” (Rodas, supra, 6 Cal.5th at p. 231.)
Evidence relevant to competence may include the defendant’s
demeanor, irrational behavior, and prior mental evaluations.
(People v. Rogers (2006) 39 Cal.4th 826, 847.) But the evidence is
not substantial enough unless it raises a reasonable or bona fide
doubt as to the defendant’s mental competence. (Ibid.; People v.
Wycoff (2021) 12 Cal.5th 58, 83.) The standard may be satisfied if
at least one competent expert who has examined the defendant
testifies with particularity that the defendant is incapable of
understanding the proceedings or assisting in the defense
because of mental illness. (Wycoff, at p. 83.) There need not be a
large quantity of evidence for a doubt to arise; rather, there must
be some evidence of sufficient substance that it cannot be
dismissed as being inherently unpersuasive. (Ibid.)
If such a doubt is created, then section 1369 dictates what
follows: an expert is appointed to examine the defendant, and a
competency trial before a judge or jury is held. If, after a
competency trial, the defendant is found competent to stand trial,
then a trial court may rely on that finding unless thereafter the
trial court “ ‘ “is presented with a substantial change of
circumstances or new evidence” casting a serious doubt on the
validity of that finding.’ ” (Rodas, supra, 6 Cal.5th at p. 231.)
The “duty to suspend is not triggered by information that
substantially duplicates evidence already considered at an earlier
formal inquiry into defendant’s competence; when faced with
evidence of relatively minor changes in the defendant’s mental
state, the court may rely on a prior competency finding rather
than convening a new hearing to cover largely the same ground.”
(Id. at pp. 234–235.)

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 “We apply a deferential standard of review to a trial court’s
ruling concerning whether another competency hearing must be
held. [Citation]. We review such a determination for substantial
evidence in support of it.” (People v. Huggins (2006) 38 Cal.4th
175, 220.)
We find that substantial evidence existed for the trial
court’s ruling that no full competency hearing was required under
these circumstances. Rather, the impetus for counsel declaring a
doubt was Robinson’s outburst. However, “disruptive conduct
and courtroom outbursts by the defendant do not necessarily
demonstrate a present inability to understand the proceedings or
assist in the defense.” (People v. Mai (2013) 57 Cal.4th 986,
1033.) As Dr. Musacco pointed out, the timing of Robinson’s
outburst—while the video of his incriminating statement was
being played—appeared to be related to Robinson’s discomfort
with watching it with his father in the courtroom. He was
responding to a deeply uncomfortable situation rather than
acting out of mental illness. (See, e.g., People v. Lewis (2008) 43
Cal.4th 415, 525–526 [defendant’s outburst indicated his depth of
understanding of proceedings rather than incompetence],
overruled on another ground by People v. Black (2014) 58 Cal.4th
912, 919–920; Mai, at pp. 1035–1036 [defendant’s self-defeating
outbursts showed anger and resentment, not incompetence, and
were understandable reaction to proceedings].) Defense counsel’s
own statements buttress that conclusion. He said Robinson had
not been paying attention and was instead rifling through papers
and reading the interview, which suggests that Robinson was
preoccupied with his incriminating statements.
Although defense counsel did say that Robinson could not
communicate with him, counsel did not explain further what he

19
meant, either when he declared a doubt about Robinson’s
competence or after Dr. Musacco testified. While we accord some
weight to counsel’s assertion of doubt about his client’s
competence, it does not necessarily constitute substantial
evidence of incompetence. (People v Sattiewhite (2014) 59 Cal.4th
446, 465.) It is not clear based on defense counsel’s
representations that Robinson was unable to communicate with
him or was just unwilling to do so because he was discomfited by
the situation.
Instead, Dr. Musacco suggested it was the latter. Just
before the hearing, he had examined Robinson and reviewed his
jail medical records. He agreed that Robinson was legitimately
stressed but did not agree the stress stemmed from a mental
illness. To the doctor, Robinson’s jail medical records were
especially telling, because they were devoid of evidence of an
underlying illness; Robinson, for example, had not lost
consciousness, engaged in disruptive behavior, or exhibited
symptoms of psychosis or mania while in jail. And while the
doctor did not rule out that somebody under stress could suffer
symptoms of mental illness that rendered them incompetent, he
ruled that out as a possibility here because Robinson was not
displaying a consistency of symptoms. That is, any symptoms of
depression disorder did not appear in Robinson’s daily life as
opposed to just in court.
All this was consistent with the trial court’s observations,
to which we afford deference because it was in the best position to
appraise Robinson’s conduct. (See, e.g., People v. Mai, supra, 57
Cal.4th at p. 1033.) The trial court observed that Robinson was
under stress that had been building up, culminating in Robinson
crumpling paper and uttering a vulgarity, apparently directed at

20
the trial court. Also notable to the trial court was that on the
same day counsel declared a doubt about Robinson’s competence,
Robinson had made a Marsden motion that suggested he and
counsel were not agreeing but that also showed a grasp of the
proceedings. Indeed, immediately after the trial court denied the
section 1368 motion, the trial court directly discussed with
Robinson his right to be in court, and Robinson responded
appropriately, demonstrating that he understood the
proceedings.
This case is therefore similar to People v. Nelson (2016) 1
Cal.5th 513, 519, where the only evidence the defense presented
regarding competence was counsel’s comment that his client was
not cooperating and a doctor’s testimony that he saw no evidence
of psychosis, active delusions, or hallucinations. Instead, the
defendant seemed to understand the doctor, who suspected the
defendant was choosing not to speak because he did not like
doctors and wanted the death penalty. Otherwise, the defendant
had no problem talking to a paralegal. Based on this, the record
did not persuasively show that because of mental illness the
defendant was “incapable of understanding the nature of the
proceedings or unable (as opposed to unwilling) to assist counsel.”
(Id. at p. 560.)
Robinson, however, refers to evidence that he believes
raised a doubt about his competence. He points out that
Dr. Musacco did not review his pre-incarceration treatment
records, which apparently showed that Robinson was treated for
ADHD. However, defense counsel did not introduce those records
or, more important, have an expert tie them to Robinson’s
competence to stand trial.

21
 Robinson then argues that Dr. Middleton’s diagnosis of
Bipolar I disorder and that he took sleeping aids and
psychotropic medications were sufficient evidence of his
incompetence to stand trial. However, Dr. Musacco disagreed
with the diagnosis that Robinson was bipolar. But even
assuming that Robinson was bipolar, there was still no evidence
or expert testimony that his condition rendered him incompetent
to stand trial at the point in time counsel declared a doubt.8 And
the bare fact that Robinson was taking psychotropic medications,
without more, was insufficient to compel a hearing under section
1368. Rather, psychotropic medication can be prescribed to help
a person become competent to stand trial. (See § 1370,
subd. (a)(2)(B)(ii)(III) [antipsychotic medication may be
administered to render a defendant competent to stand trial].) In
short, there was no expert testimony or other evidence tethering
any bipolar diagnosis or the medications to Robinson’s
competency to stand trial.
The evidence therefore was not in conflict. Instead, as the
trial court found, there was insufficient evidence of a substantial

8 Robinson also cites Dr. Middleton’s trial testimony as evidence
of his incompetence to stand trial. But that testimony occurred
after the hearing on Robinson’s competence and therefore was not
before the trial court. And while a trial court must declare a
doubt on its own at any point when presented with substantial
evidence of a defendant’s incompetence (People v. Castro (2000)
78 Cal.App.4th 1402, 1415, disapproved on another ground by
People v. Leonard (2007) 40 Cal.4th 1370, 1389), Dr. Middleton’s
testimony alone did not constitute such evidence, as it concerned
whether Robinson had a mental disorder that negated his specific
intent to commit the crimes and not his competence to stand
trial.

22
change of circumstances or new evidence that cast a doubt as to
Robinson’s competence.
C. Any error in appointing Dr. Musacco under section
1368 was harmless.
Dr. Musacco played two roles during the criminal
proceedings: as an expert appointed to assist the defense under
Evidence Code section 1017 and as an expert appointed to
evaluate whether Robinson was competent to stand trial under
section 1368. Robinson now contends that appointing the doctor
to evaluate him under section 1368 violated Robinson’s attorney-
client privilege, psychotherapist-patient privilege, and right to
effective and conflict-free counsel.9 We now explain why any
error was harmless.
At a criminal trial, a psychologist or other expert can play
different roles. One is as a member of the defense team,
appointed to provide a defendant’s attorney with information
relevant to a plea based on insanity or to a defense based on the
defendant’s emotional or mental condition. (Evid. Code, § 1017,
subd. (a).) A second is as an expert, appointed to evaluate the
defendant and to render an opinion to the trial court about the
defendant’s competence to stand trial. (§ 1368.) Information
gleaned under a section 1368 appointment is not subject to the
attorney-client privilege. However, when a doctor is appointed
under Evidence Code section 1017 to examine the defendant and
to provide the results of that examination, including any report,
information, and communications relating to it, to defense
counsel, the attorney-client and other privileges protect those

9Robinson’s contention concerns only Dr. Musacco’s second
appointment under section 1368.

23
communications from disclosure. (People v. Lines (1975) 13
Cal.3d 500, 514 (Lines); Elijah W. v. Superior Court (2013) 216
Cal.App.4th 140, 150–152; Corenevsky v. Superior Court (1984)
36 Cal.3d 307, 319–320 [right to effective counsel includes right
to reasonably necessary ancillary defense services]; Evid. Code,
§ 1012 [psychotherapist-patient privilege].)
From this, it follows that an expert usually may not play
more than one role at a criminal trial. The problems that arise
when an expert plays more than one role in a single criminal
proceeding were on display in Lines, supra, 13 Cal.3d 500. In
that case, Dr. Markman10 was initially appointed to examine the
defendant under, among other statutes, Evidence Code section
1017 to assist the defense. (Lines, at p. 514.) As such, the
attorney-client privilege permanently protected the results of and
any report of the examination, information and communications
relating to the examination. (Ibid.) After the defendant pled not
guilty by reason of insanity, the trial court reappointed
Dr. Markman to examine the defendant and to report to the
court. (Ibid.) Thereafter, at trial, the People called Dr. Markman
to testify, over a defense objection. (Id. at p. 509.)
The court found that Dr. Markman could testify about the
results of his examination pursuant to his reappointment, but he
could not testify about the results of his first examination of
defendant and his reports to defense counsel. (Lines, supra, 13
Cal.3d at p. 515.) However, the court recognized the fine line it
was drawing in finding that information relating to
Dr. Markman’s first examination of the defendant was privileged,

10Although Lines involved multiple experts whose appointments
proved problematic, we focus on one expert for the sake of
simplicity.

24
while information relating to his second examination of the
defendant was not and, due to its unprivileged nature, the doctor
could testify about it. The court thus noted that there could be
“situations where such information cannot be so precisely
compartmentalized and where it may be an impossible task for
the psychiatrist to report or testify as to unprivileged information
without drawing upon and utilizing that which is privileged.”
(Id. at pp. 515–516.) Lines, at page 516, accordingly disapproved
reappointing a doctor, “whose earlier examination is protected by
privilege, to make a subsequent examination under
circumstances” carrying no protection of privilege. The court
therefore found that the defense objection to Dr. Markman’s
testimony at trial should have been sustained.
Nonetheless, the court further found that the error was
subject to harmless error analysis under People v. Watson (1956)
46 Cal.2d 818. (Lines, supra, 13 Cal.3d at p. 516.) Because the
erroneously admitted testimony about the defendant’s sanity was
essentially the same as properly admitted testimony from other
doctors on the same issue, the court concluded, after examining
the entire cause, it was not reasonably probable a result more
favorable to the defendant would have been reached in the
absence of the error. (Ibid.)
Here, the People argue that defense counsel failed to
preserve an objection under Lines because he did not cite any
constitutional or other grounds. That may be, but defense
counsel outlined the history of Dr. Musacco’s involvement in the
case and was clear that the fundamental basis for the objection
was that the doctor had previously evaluated Robinson for the
defense. The totality of the hearing made it clear the objection
was based on the privileged nature of Dr. Musacco’s appointment

25
by the defense. The trial court clearly understood the basis for
the objection because it agreed it was generally inappropriate to
appoint an expert under section 1368 whom the defense had
previously retained.11
The People also argue that because the defense failed to
object to Dr. Musacco’s first appointment under section 1368, the
defense forfeited any objection to the second appointment. We
doubt that counsel’s waiver of any privilege concerning
Dr. Musacco’s first appointment under section 1368 precluded
him from objecting to the doctor’s second appointment under that
section. (See generally Evid. Code, §§ 953 [only holder of
privilege can waive it], 912, subd. (a) [consent to disclosure
manifested by statement or conduct indicating consent to
disclosure]; State Comp. Ins. Fund v. WPS, Inc. (1999) 70
Cal.App.4th 644, 652–653 [whether inadvertent disclosure of
privileged information constitutes waiver involves examining
holder’s subjective intent and relevant circumstances for
manifestation of holder’s consent to disclose information]; Roberts
v. Superior Court (1973) 9 Cal.3d 330, 343 [waiver of a privilege
“must be a voluntary and knowing act done with sufficient
awareness of the relevant circumstances and likely
consequences”]; see also Lohman v. Superior Court (1978) 81
Cal.App.3d 90, 94 [attorney-client privilege afforded enormous
respect].) However, we do not address that issue at length
because any error regarding Dr. Musacco’s reappointment was
harmless.

11 Even if Robinson forfeited his right to appellate review, we
would exercise our discretion to address the issue because it
affects his substantial rights. (See generally § 1259; Johnson,
supra, 119 Cal.App.4th at p. 984.)

26
 By appointing Dr. Musacco under section 1368 when he
had been previously appointed to aid the defense under Evidence
Code section 1017, the trial court did exactly what Lines
disapproved. Even so, any error was harmless. First, unlike
Dr. Markman in Lines, Dr. Musacco did not disclose any
privileged matter, and, also unlike the defense counsel in Lines,
defense counsel here did not object during Dr. Musacco’s
testimony that privileged matter had been disclosed.
Dr. Musacco’s testimony instead focused on his meeting with
Robinson the day before the hearing, Robinson’s medical records
from jail, and addressing Dr. Middleton’s report. Thus,
notwithstanding the concern expressed in Lines, which we share,
of the danger an expert may not be able to compartmentalize
what they learned in a privileged setting and instead will be
influenced by it at a later proceeding under section 1368, it is not
apparent that this occurred here. On this record, no disclosure of
privileged matter occurred.
Second, no prejudice is otherwise apparent. When counsel
declared a doubt about Robinson’s competence to stand trial, the
trial court was immediately doubtful, saying that based on what
counsel had said and its observations of the situation, there was
not substantial evidence to raise a doubt about Robinson’s
competence. Although the trial court was already unpersuaded
that further proceedings were necessary, it nonetheless decided
to have Dr. Musacco evaluate Robinson and to hold what the trial
court called an “abbreviated hearing” on the issue. As we have
said, the evidence at that hearing only confirmed the trial court’s
initial ruling, that there was insufficient evidence to raise a
doubt about Robinson’s competence to stand trial.

27
 Robinson, however, argues that any error was not harmless
because Dr. Musacco “ ‘pulled his punches.’ ” By this, it appears
Robinson is saying that Dr. Musacco could have, but failed to,
access his pre-incarceration medical records. We fail to see how
this evidences any pulling of punches or deliberate avoidance of
evidence that might have spoken to Robinson’s supposed
incompetence to stand trial. Instead, Dr. Musacco did testify
about some of Robinson’s pre-incarceration medical history,
including that Robinson was treated for ADHD when he was 13
or 14 years old, but was clearly unpersuaded that they showed
incompetence to stand trial six years later. Also, Robinson had
access to those records and could have produced them if relevant
to his competence and cross-examined the doctor with them, but
he did not do so.
Robinson also argues that any error is not harmless
because it is impossible to tell what a properly appointed expert
would have said about his competency. We would put it another
way: what another expert would have testified is speculative.
Robinson nonetheless points out that his expert Dr. Middleton,
who testified at trial, said he was bipolar. This is unpersuasive
because Robinson could have called Dr. Middleton to testify at
the hearing to rebut Dr. Musacco but didn’t do so. It is also
unclear that Dr. Middleton would have said Robinson was
incompetent to stand trial because that is a different issue than
whether Robinson could form intent to commit certain of the
crimes, which was the subject of Dr. Middleton’s trial testimony.
Any error in reappointing Dr. Musacco was therefore
harmless.

28
III. Ineffective assistance of counsel based on misstatement of
evidence
In closing argument, defense counsel misstated that
Robinson had moved Diana 240 yards—as opposed to 240 feet—
when discussing the aggravated kidnapping charges. Robinson
now argues that this misstatement constituted ineffective
assistance of counsel. We do not agree.
To establish ineffective assistance of counsel, a defendant
must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms
and that counsel’s deficient performance resulted in prejudice,
that is, there is a reasonable probability that but for counsel’s
failings defendant would have achieved a more favorable result.
(People v. Bell (2019) 7 Cal.5th 70, 125; Strickland v. Washington
(1984) 466 U.S. 668, 687–688.)
How far Robinson moved Diana was relevant to the
aggravated kidnapping charges (counts 3 & 4). Aggravated
kidnapping requires the victim to be forced to move a substantial
distance, the movement cannot be merely incidental to the target
crime, and the movement must substantially increase the risk of
harm to the victim. (People v. Dominguez (2006) 39 Cal.4th 1141,
1153; § 667.61, subd. (d)(2).) Hence, when defense counsel said
that Robinson moved Diana 240 yards instead of 240 feet, he
substantially increased the distance she was moved by a distance
of over two football fields, which would almost certainly satisfy
the requirement she be moved a substantial distance.
Although defense counsel confused yards with feet, we
doubt that his simple, one-time confusion about yards and feet
fell below the objective standard of reasonableness—and it
certainly did not result in prejudice. Instead, the jury was

29
instructed with CALCRIM No. 104 that nothing attorneys said in
opening and closing statements was evidence. The jury was also
instructed what did constitute evidence: a witness’s sworn
testimony, admitted exhibits, and anything else the trial court
said was evidence. (CALCRIM No. 104.) The evidence was that
Robinson moved Diana 240 feet. An officer testified that he
measured how far Diana was moved from a stop sign to the alley,
and it was 240 feet. Jurors saw photographs and maps of the
area over which Diana was moved and could ascertain for
themselves that she was not moved the length of over two football
fields. Diana’s testimony did not support a finding she was
moved the length of over two football fields, as she said that
Robinson moved her about one house length in the alley. Finally,
the prosecutor in closing argument correctly stated several times
that Diana had been moved 240 feet, saying that dragging “her
240 feet to an alley is a substantial distance.”
Given that defense counsel’s misstatement of fact was brief
and isolated, that the jury was properly instructed on what
constituted evidence, and the otherwise unambiguous evidence,
there is no reasonable probability that Robinson would have
achieved a more favorable result in the absence of defense
counsel’s misstatement.
IV. Fair and adequate notice of enhancements
Robinson makes two arguments why his LWOP sentence
must be reversed. First, he did not receive notice he was facing
LWOP on counts 3 and 4 under the “One Strike” law because the
information did not cite section 667.61, subdivision (l), the
applicable penalty provision. Second, the jury’s findings on the
kidnapping allegations as to those counts must be reversed

30
because the information and instructions referred to the One
Strike law as an enhancement rather than an allegation.
A. Robinson received fair notice he could be sentenced
under the One Strike law.
Section 667.61, the One Strike law, is an alternative,
harsher sentencing scheme for certain forcible sex crimes.
(People v. Mancebo (2002) 27 Cal.4th 735, 741.) When a
defendant is subject to sentencing under that or another scheme,
the defendant has a due process right to fair notice of the specific
sentence enhancement allegations that will be used to increase
punishment under the applicable law. (Id. at p. 747.) Due
process is satisfied if the information apprises the defendant of
the potential of an enhanced penalty and alleges the facts
necessary to establish that penalty’s applicability. (People v. Sok
(2010) 181 Cal.App.4th 88, 96, fn. 8.) The “specific numerical
subdivision of a qualifying One Strike circumstance” need not be
pleaded. (Mancebo, at p. 753.) Rather, an information simply
must afford a One Strike defendant fair notice of the qualifying
statutory circumstances that are being pled, proved, and invoked
to support sentencing. (Id. at pp. 753–754.)
A similar situation was at issue in People v. Neal (1984)
159 Cal.App.3d 69. In that case, the jury found the defendant
guilty of sex crimes and found true an enhancement for using a
deadly weapon, designated in the information as a violation of
section 12022, subdivision (b). The trial court, however,
sentenced the defendant under section 12022.3, which applied to
certain violent sex offenses and carried a three-year term rather
than the one-year term under section 12022, subdivision (b).
(Neal, at p. 72.) The Court of Appeal rejected the defendant’s
argument the judgment had to be modified to sentence the

31
defendant under the section identified in the information, stating
that “where the information puts the defendant on notice that a
sentence enhancement will be sought, and further notifies him of
the facts supporting the alleged enhancement, modification of the
judgment for a misstatement of the underlying enhancement
statute is required only where the defendant has been misled to
his prejudice.” (Id. at p. 73.)
Similarly here, Robinson was sentenced to LWOP per
section 667.61, subdivision (l), which states, “A person who is
convicted of an offense specified in subdivision (n) under one or
more of the circumstances specified in subdivision (d) or under
two or more of the circumstances specified in subdivision (e),
upon a victim who is a minor 14 years of age or older shall be”
sentenced to LWOP. Although the information did not expressly
refer to subdivision (l) of section 667.61, Robinson nonetheless
had fair notice he was subject to being sentenced under it. Count
3 alleged that Robinson forcibly penetrated Diana (§ 289,
subd. (a)(1)(C)). Count 4 alleged that Robinson forcibly orally
copulated her (former § 288a, subd. (c)(2)(C)). Both counts
alleged that Diana was a minor, 14 years old or older. Also, both
counts alleged circumstances under subdivisions (d) and (e) of
section 667.61; specifically, they alleged (1) that Robinson
kidnapped Diana and he moved her in a way that substantially
increased the risk of harm over and above the level of risk
necessarily inherent in the offense charged within the meaning of
section 667.61, subdivision (d)(2), and (2) he kidnapped her
within the meaning of section 667.61, subdivision (e)(1). The
information therefore alleged the fact of the victim’s qualifying
age and the circumstances—subdivisions (d) and (e)—that made
Robinson subject to LWOP.

32
 Robinson thus had fair notice he was facing LWOP if
convicted of count 3 or 4.
B. Robinson was not prejudiced by any misnomer
concerning the One Strike law.
Robinson also contends that misstatements referring to the
One Strike law as an enhancement rather than as a penalty
provision violated his due process rights. He thus notes that the
information referred to the One Strike allegations as an
“enhancement,” jury instructions called the law an allegation or
enhancement, and the trial court referred to the law as both an
enhancement and an allegation, saying it was using those terms
interchangeably. While it is true that the One Strike law is an
alternative penalty and not an enhancement (People v. Mancebo,
supra, 27 Cal.4th at p. 741), it is unclear how any misnomer
prejudiced Robinson, especially where, as here, the trial court
advised it was using the terms enhancements and allegations
interchangeably and the jury was properly instructed on the One
Strike law. As the People put it in their response to this
contention, this is nothing more than an attempt to elevate a
mere matter of nomenclature into an issue of constitutional
magnitude. We reject this attempt.
V. Cruel and/or unusual punishment
The trial court sentenced Robinson to LWOP on counts 3
and 4 (stayed) under the One Strike law. He contends that his
LWOP sentence facially and as applied to him violated federal
and state constitutional prohibitions against cruel and/or
unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art.
I, § 17.)

33
 A. Forfeiture
Robinson did not object that his sentence was cruel and/or
unusual punishment in the trial court. Such failure to object that
a sentence constitutes cruel and/or unusual punishment forfeits
appellate review because the issue often requires a fact-bound
inquiry. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
However, because Robinson claims that the failure to object
constituted ineffective assistance of counsel, we address the issue
and find, as we next explain, that Robinson suffered no prejudice
from any failure to object. (See generally Strickland v.
Washington, supra, 466 U.S. 668 [ineffective assistance of counsel
claim requires showing that counsel fell below standard of care
and prejudice].)
B. Robinson’s facial challenge
Robinson first argues that the One Strike law is cruel
and/or unusual punishment on its face. Such a challenge to the
facial constitutionality of a statute will fail unless the statutory
terms inevitably pose a conflict with applicable constitutional
prohibitions. (Persky v. Bushey (2018) 21 Cal.App.5th 810, 818.)
Statutes are presumed to be constitutional. (Ibid.) And we must
be mindful that principles of separation of powers require courts
to exercise judicial restraint in passing on the acts of other
branches of government and to give great weight to legislative
findings unless they are unreasonable or arbitrary. (Tos v. State
of California (2021) 72 Cal.App.5th 184, 195.)
Robinson’s argument about the facial unconstitutionality of
the One Strike law appears to rest on Graham v. Florida (2010)
560 U.S. 48, which held that LWOP may not be imposed on
juveniles who commit nonhomicide offenses. While Robinson was

34
young when he committed his crimes—19—he was not legally a
juvenile. Graham, therefore, is distinguishable.
Otherwise, section 667.61, subdivision (l), of the One Strike
law imposes LWOP for specific sex crimes against some of the
most vulnerable members of our society, minors, and that are
committed under aggravating circumstances, such as aggravated
kidnapping. Robinson acknowledges that courts have found that
the One Strike law is not cruel and/or unusual punishment even
though the sentence is imposed for nonhomicide offenses. People
v. Reyes (2016) 246 Cal.App.4th 62, 85, for example, upheld an
LWOP sentence imposed on a defendant who forcibly raped and
orally copulated a minor during the commission of a residential
burglary. Reyes relied on other decisions upholding sentences
under the One Strike law. (See, e.g., People v. Alvarado (2001) 87
Cal.App.4th 178 [rejecting 8th Amend. challenge to 15-years-to-
life sentence for rape committed during commission of burglary];
People v. Crooks (1997) 55 Cal.App.4th 797, 805–809 [rejecting
constitutional challenge to 25-years-to-life sentence for rape
committed during first degree burglary].)
Given Robinson’s acknowledgment of these cases and that
his facial challenge rests on his personal circumstances, which
suggests that his real challenge to his sentence is an as-applied
one, we turn to that issue.
C. Robinson’s sentence does not violate our state or
federal constitutions.
A punishment is cruel or unusual under our state
constitution if “it is so disproportionate to the crime for which it
is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410,
424.) We use three techniques to make this determination: first,

35
examine the nature of the offense and/or the offender with
particular regard to the degree of danger both present to society;
second, compare the challenged penalty with the punishments for
more serious offenses in California; and third, compare the
challenged penalty with the punishments prescribed for the same
offense in other states. (Id. at pp. 425–427.) Disproportionality
need not be established in all three areas. (People v. Dillon
(1983) 34 Cal.3d 441, 487, fn. 38.)
The Eighth Amendment to the United States Constitution
prohibits a sentence that is grossly disproportionate to the
severity of the crime. (Rummel v. Estelle (1980) 445 U.S. 263,
271.) The federal proportionality analysis closely resembles
Lynch’s analytical framework (Solem v. Helm (1983) 463 U.S.
277, 291–292) and affords no greater protections than that
provided by California’s constitution (People v. Martinez (1999)
71 Cal.App.4th 1502, 1510). Accordingly, a punishment that
satisfies the California standard necessarily satisfies the federal
one. (Cf. People v. Anderson (1972) 6 Cal.3d 628.)
Because whether a punishment is cruel and/or unusual is a
question of law, we exercise independent review while
considering in the light most favorable to the judgment any
underlying disputed facts. (People v. Palafox (2014) 231
Cal.App.4th 68, 82.)
Here, Robinson tersely addresses only the first prong of
Lynch, suggesting his LWOP sentence was unconstitutional
because he had no prior criminal history, he was 19 years old
when he committed the crimes, the victim was physically
uninjured, and Robinson had a major mental illness. These are
certainly relevant factors, but Robinson’s failure to address the
nature of his offenses in greater detail is telling. (See, e.g., People

36
v. Dillon, supra, 34 Cal.3d at p. 479 [we consider offense in the
abstract and facts of the crime, including motive, way it was
committed, extent of defendant’s involvement, and consequences
of his acts]; People v. Baker (2018) 20 Cal.App.5th 711, 725
[insignificant criminal record and no prior history of sex crimes
did not outweigh other factors].)
Diana, the victim in counts 3 and 4, was just 15 years old
and on her way to school when Robinson attacked her. While
lewd conduct on a child may not be the gravest of offenses when
compared to murder and torture, its seriousness is nonetheless
considerable. (People v. Christensen (2014) 229 Cal.App.4th 781,
806.) Robinson came up from behind Diana, put her in a
chokehold, pointed a gun at her, threatened her, and dragged her
to an alley where he sexually assaulted and tried to penetrate
her. He then forced Diana to take him to her house so that she
could get money for him. Under analogous circumstances, People
v. Baker, supra, 20 Cal.App.5th at page 715, found that a 15-
years-to-life sentence was not cruel and/or unusual punishment
for the crime of orally copulating a six-year-old. (Accord, People
v. Reyes, supra, 246 Cal.App.4th at p. 85 [LWOP sentence for
forcible rape and oral copulation of a minor during residential
burglary was not cruel and/or unusual].)
And, contrary to Robinson’s assertion that Diana was
uninjured, she testified about the violence of the incident:
Robinson put her in chokehold, leaving a bruise. Thus, aside
from Diana’s emotional injuries, she was physically injured.
Also, this sexual assault occurred in the context of a crime spree
occurring over the course of several months against a total of
three women. In each case, Robinson came up from behind his
victims, violently restrained them, sexually assaulted them, and

37
robbed two of them. The nature of the offense therefore speaks to
the danger Robinson presents to society, which supports his
LWOP sentence.
VI. Remand for Franklin hearing is unwarranted.
Robinson contends this matter should be remanded for a
Franklin hearing to allow him to develop the record with
evidence of youth-related factors that will be relevant at a youth
offender parole hearing. Franklin hearings, however, are
afforded to defendants eligible for a youth offender parole hearing
under section 3051. (Franklin, supra, 63 Cal.4th at p. 269.) That
section provides that a person convicted of an offense committed
when the person was 25 years old or younger is eligible for
release on parole at a youth-offender parole hearing held during
the person’s 15th, 20th, or 25th year of incarceration, depending
on the offense. (§ 3051, subd. (b).) However, section 3051,
subdivision (h), excludes defendants like Robinson who were
sentenced under the One Strike law.
Courts of Appeal are split as to whether excluding persons
like Robinson sentenced under the One Strike law from youth
offender parole hearings under section 3051 violates the Equal
Protection Clause of the Fourteenth Amendment, with People v.
Edwards (2019) 34 Cal.App.5th 183 holding it does and People v.
Williams (2020) 47 Cal.App.5th 475, holding it does not. Our
Supreme Court has granted review of Williams to determine
whether section 3051, subdivision (h), violates the equal
protection clause of the Fourteenth Amendment “by excluding
young adults convicted and sentenced for serious sex crimes
under the One [S]trike law (Pen. Code, § 667.61) from youth
offender parole consideration, while young adults convicted of
first degree murder are entitled to such consideration.” (July 22,

38
2020, S262229 [order granting review and limiting scope of
review].) Pending resolution of this issue, we will follow Williams
and find that Robinson is not entitled to a Franklin hearing
because he is not eligible for a youth offender parole hearing
under section 3051.
VII. Assembly Bill No. 518 and Senate Bill No. 567
Robinson contends that remand is necessary so that the
trial court can consider whether he should benefit from recently
enacted ameliorative laws, i.e., Assembly Bill No. 518 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 441) and Senate Bill No. 567 (2021–
2022 Reg. Sess.) (Stats. 2021, ch. 731), both of which became
effective January 1, 2022.
When Robinson was sentenced, section 654 provided that a
criminal act punishable in different ways by different provisions
of law must be punished under the provision providing the
longest potential term of imprisonment. Our Legislature has
since passed Assembly Bill No. 518, which amended section 654.
As amended, section 654 now provides that an act or omission
punishable in different ways by two different provisions of law, as
in this case, may be punished under either provision. Hence, the
longest term of imprisonment is no longer mandatory.
Senate Bill No. 567 amended section 1170. As relevant
here, section 1170, subdivision (b), now makes the middle term
the presumptive sentence unless certain circumstances exist. A
trial court may impose the upper term only where there are
aggravating circumstances and the defendant has either
stipulated to them or they have been found true beyond a
reasonable doubt. (§ 1170, subd. (b)(1)–(2).) And where the
defendant was a youth, meaning under the age of 26, the low
term shall be imposed unless the trial court finds that

39
aggravating circumstances outweigh mitigating ones such that
imposing the low term would be contrary to the interests of
justice. (§ 1170, subd. (b)(6).)
The amendments made by Assembly Bill No. 518 and
Senate Bill No. 567 apply retroactively to cases like Robinson’s
which were not final when the legislation took effect. (See
generally People v. Sek (2022) 74 Cal.App.5th 657, 673 [Assem.
Bill No. 518 is retroactive]; People v. Flores (2022) 73 Cal.App.5th
1032, 1039 [Sen. Bill No. 567 is retroactive].) These amendments
to sections 654 and 1170 potentially confer ameliorative benefits
to Robinson. With respect to the counts concerning Diana, he
was sentenced to LWOP on counts 3 and 4 (stayed) and lesser
sentences were imposed on counts 5, 6, and 7 but stayed under
section 654. Robinson was also sentenced to the upper terms on
counts 1, 11, and 14.
The People concede that the new laws are retroactive.
However, the People also argue that remand for reconsideration
of the sentence under newly-amended section 654 is unnecessary
because there is no reasonable likelihood the trial court would
impose a different judgment. (See generally People v. Gutierrez
(2104) 58 Cal.4th 1354, 1391.) The People similarly argue that
any error in imposing the upper terms was harmless beyond a
reasonable doubt because a jury necessarily would have found at
least one aggravating circumstance true. (See generally People v.
Flores, supra, 73 Cal.App.5th at p. 1039.) The People rely on the
aggravating circumstances the trial court cited at sentencing:
the manner in which the crimes were carried out, that Robinson
used a weapon for some of the crimes, and his violent conduct
indicated a serious danger to society. As to that last aggravating
circumstance, the trial court further noted that Robinson’s

40
standardized testing showed a likelihood he would recidivate.
But, in addition to these aggravating circumstances, the trial
court also found there was a circumstance in mitigation:
Robinson had no known criminal history.
Given that the trial court found one mitigating
circumstance and based on Robinson’s age, we find that remand
is appropriate for the trial court to reconsider Robinson’s
sentence per Assembly Bill No. 518 and Senate Bill No. 567. We
express no opinion on how any discretion should be exercised on
remand.12

12Because we are remanding for reconsideration of Robinson’s
sentence, we need not address all of the arguments raised in
Robinson’s supplemental reply brief.

41
 DISPOSITION
The matter is remanded with the direction to the trial court
to reconsider Robinson’s sentence under Assembly Bill No. 518
and Senate Bill No. 567. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

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