People v. Robinson CA2/2

Filed 6/29/22 P. v. Robinson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B313797

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA051400)
v.

KENYUN DASHAWN
ROBINSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded.
Loyola Law School, Juvenile Innocence & Fair Sentencing
Clinic, Marisa Harris, Christopher Hawthorne and Kristen
Durkan for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.

******

Defendant and appellant Kenyun Dashawn Robinson
(defendant) appeals from an order entered after argument
regarding his petition filed pursuant to Penal Code section 1170,
former subdivision (d)(2),1 to recall his sentence and to be
resentenced. Defendant purports to appeal “from the judgment
denying the request for his matter to be transferred to juvenile
court jurisdiction once his sentence has been vacated . . . .” The
People, on the other hand, have construed the trial court’s order
as a denial of the petition for recall and resentencing. In reply,
defendant agrees.2 It appears that the trial court’s error was that

1 Penal Code section 1170 has been amended and former
subdivision (d)(2) is renumbered as subdivision (d)(1)-(13). (See
Stats. 2021, ch. 731, § 1.3.) When it is necessary to refer to the
former numbering of the statute, we use the modifier “former”;
otherwise we refer to the current numbering. All further
statutory references are to the Penal Code, unless otherwise
indicated.
2 In his reply brief filed April 18, 2022, defendant sought an
expedited appeal, indicating that he was anxious to have the
matter returned to the trial court. As good cause for granting the
motion, defendant stated: “Both parties agree that the lower
court erred when it refused to recall [defendant’s] sentence . . . .”
Defendant also assumed that granting his request would “not
significantly impair the court’s customary procedures.” The
matter was put on the court’s June 2022 calendar. Good cause

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it did not rule on the merits of the section 1170, subdivision (d)
petition. We thus reverse and remand with directions to consider
the matter on its merits. Defendant’s request to order the matter
transferred is premature, we thus do not reach that issue.

BACKGROUND
Prior appeals
We take judicial notice of our prior decisions in defendant’s
case, and draw background facts from those opinions.
Robinson I: People v. Robinson (June 2, 2004,
B166845) (nonpub. opn.)
Defendant was convicted in 2003 of a murder committed in
1992, when he was 16 years old. Defendant was sentenced to life
without the possibility of parole (LWOP) plus four years for the
use of a firearm. In 2004 we affirmed the judgment.
Robinson II: People v. Robinson (Aug. 22, 2017,
B264801) (nonpub. opn.)
In 2013, defendant petitioned for a writ of habeas corpus
seeking resentencing under Miller v. Alabama (2012) 567 U.S.
460 (Miller). In Miller the United States Supreme Court held
that a mandatory LWOP sentence imposed upon a juvenile
offender violated the Eighth Amendment and that sentencing
courts must have discretion to impose a lesser term based upon
individualized factors relating to youth and its attendant
characteristics. (Miller, at pp. 479-480.) In 2015, after granting
such a hearing, the trial court ruled that LWOP remained the

not having been shown, the request for the matter to be expedited
is denied.

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appropriate sentence. We affirmed the court’s order on
September 1, 2016.
The California Supreme Court granted review and
transferred the matter back for reconsideration in light of
Montgomery v. Louisiana (2016) 577 U.S. 190 (Montgomery),
which held that its decision in Miller was retroactive, and thus
LWOP must be restricted to the rare juvenile offender who
“exhibits such irretrievable depravity that rehabilitation is
impossible.” (Montgomery, at pp. 208-209.)
Upon reconsideration of our decision in 2016, we reversed
the trial court’s order denying resentencing and remanded the
matter to the trial court for a new sentencing hearing consistent
with the principles set forth in Montgomery, supra, 577 U.S. 190
and Miller, supra, 567 U.S. 460 (a Miller hearing). On remand,
prior to holding a Miller hearing as directed, the trial court
determined that intervening changes in law made the direction
moot (section 3051 had been amended to create a parole
eligibility date for youth offenders who had served 25 years of
their LWOP sentences). (See Stats. 2017, ch. 684, § 1.5.) The
trial court instead held a hearing pursuant to People v. Franklin
(2016) 63 Cal.4th 261 (Franklin hearing) to preserve any
evidence in mitigation for defendant’s youth offender parole
hearing. Defendant requested the court to conduct the Miller
hearing as well as the Franklin hearing, or in the alternative, to
hold a hearing to recall his sentence and resentence him
pursuant to section 1170, former subdivision (d)(2). The trial
court denied the requested recall hearing pursuant to section
1170 without explanation.

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 Robinson III: People v. Robinson (Sept. 25, 2019,
B294169) (nonpub. opn.)
We affirmed the trial court’s order denying a Miller hearing
and rejected defendant’s request to direct the court to conduct a
recall and resentencing hearing. We did so without prejudice to
the filing of a petition in compliance with the procedural
requirements of section 1170, former subdivision (d)(2). The
California Supreme Court denied review.
Proceedings leading to this appeal
In November 2020 defendant filed his “Petition for Recall
and Resentencing Hearing Under Penal Code Section 1170(d)(2)”
with exhibits. The petition requested the court to recall and
vacate defendant’s sentence and then transfer jurisdiction of the
case to juvenile court for a Proposition 57 (as approved by voters,
Gen. Elec. (Nov. 9, 2016)) hearing pursuant to Welfare and
Institutions Code section 707, subdivision (b).
Hearing on the petition was held on November 19, 2020. It
“seemed” to the trial court that defendant met the requirements
for recall of his sentence and to have a resentencing hearing. The
court did not agree, however, that the case should be transferred
to juvenile court. After hearing argument from counsel, the
proceeding was continued. In the meantime the parties filed
supplemental briefs and documentary evidence. Defendant’s
supplemental brief, filed February 9, 2021, focused on his request
for an immediate transfer to juvenile court once his sentence was
recalled and vacated. The prosecution conceded that defendant
qualified for recall of his sentence, but disagreed that section
1170, subdivision (d) authorized his transfer to juvenile court.
When the hearing resumed on June 10, 2021, the court
asked counsel which issue it should rule upon first. Defense

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counsel argued that the court should first rule on whether to
transfer the matter to juvenile court. The prosecutor argued that
there was no authority for doing so and that the trial court
should first rule on the recall and if the court vacated the
sentence, then rule on resentencing. The court observed that it
had not yet ruled on whether to vacate the sentence, so the case
was still a final adult conviction. The court denied the request to
send the case to juvenile court for a transfer hearing, and after
further argument of counsel the court stated, “I’m going to stick
with my ruling . . . not . . . to grant the transfer hearing.” The
minute order of that date states that the “[d]efense motion to
transfer case to juvenile court per Proposition 57” was heard,
argued, and denied, and the proceedings were terminated.
Defendant filed a timely notice of appeal “from the
judgment denying the request for his matter to be transferred to
juvenile court jurisdiction once his sentence has been
vacated . . . .”

DISCUSSION
Defendant contends that the trial court erred in not
recalling his sentence despite the prosecutor’s concession that he
met the requirements for recall under section 1170, subdivision
(d).3 Defendant also contends that his case must be referred to

3 Defendant also claims that the trial court’s statement that
he seemed to have met the requirements for recall meant that the
court found by a preponderance of evidence that he was eligible
for a recall hearing. We do not find evidence the trial court
expressed such a finding nor mentioned evidence.

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juvenile court for a Proposition 57 transfer hearing under
Welfare and Institutions Code section 707.
Section 1170, subdivision (d)(1)(A) provides:
“When a defendant who was under 18 years of age at
the time of the commission of the offense for which
the defendant was sentenced to imprisonment for life
without the possibility of parole has been
incarcerated for at least 15 years, the defendant may
submit to the sentencing court a petition for recall
and resentencing.”
Section 1170, subdivision (d)(1)(B) provides for exceptions
not relevant here. Section 1170, subdivision (d)(2) provides in
relevant part:
“The petition shall include the defendant’s statement
that [he or she] was under 18 years of age at the time
of the crime and was sentenced to life in prison
without the possibility of parole, the defendant’s
statement describing [his or her] remorse and work
towards rehabilitation, and the defendant’s
statement that one of the following is true:
“(A) The defendant was convicted pursuant to felony
murder or aiding and abetting murder provisions of
law.
“(B) The defendant does not have juvenile felony
adjudications for assault or other felony crimes with
a significant potential for personal harm to victims
prior to the offense for which the sentence is being
considered for recall.
“(C) The defendant committed the offense with at
least one adult codefendant.
“(D) The defendant has performed acts that tend to
indicate rehabilitation or the potential for

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 rehabilitation, including, but not limited to, availing
[himself or herself] of rehabilitative, educational, or
vocational programs, if those programs have been
available at [his or her] classification level and
facility, using self-study for self-improvement, or
showing evidence of remorse.”
Prior to the passage of Proposition 57, Welfare and
Institutions Code former section 707 permitted the prosecutor to
charge a minor directly in adult court. In People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara), the California
Supreme Court explained that “Proposition 57 prohibits
prosecutors from charging juveniles with crimes directly in adult
court. Instead, they must commence the action in juvenile court.
If the prosecution wishes to try the juvenile as an adult, the
juvenile court must conduct what we will call a ‘transfer hearing’
to determine whether the matter should remain in juvenile court
or be transferred to adult court. Only if the juvenile court
transfers the matter to adult court can the juvenile be tried and
sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)”
The court also held that “this part of Proposition 57 applies to all
juveniles charged directly in adult court whose judgment was not
final at the time it was enacted.” (Id. at p. 304.)4
Relying on People v. Padilla (2020) 50 Cal.App.5th 244,
affirmed (2022) 13 Cal.5th 152, defendant contends that his

4 In Lara, the court based its retroactivity holding on In re
Estrada (1965) 63 Cal.2d 740, 744-746, in which the California
Supreme Court held that newly enacted criminal statutes that
are intended to ameliorate criminal punishment apply
retroactively to all cases not yet reduced to final judgment on the
statute’s effective date. (Lara, supra, 4 Cal.5th at p. 303.)

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sentence was reopened in 2015 when the trial court conducted a
Miller hearing after granting a petition for writ of habeas corpus
and remains nonfinal. The California Supreme Court recently
issued its decision in People v. Padilla, agreeing with the
appellate court, which extended the reasoning of Lara, supra, 4
Cal.5th at pages 303-304 and In re Estrada, supra, 63 Cal.2d at
pages 744-746, that a judgment which had been final was
rendered nonfinal when the sentence was recalled, thus entitling
the defendant to seek the benefits of Proposition 57. (People v.
Padilla, supra, 13 Cal.5th 152, 170 (Padilla).)
Here, defendant reasons that his sentence was reopened
when his petition for writ of habeas corpus was granted and
remained open throughout two appeals and after this court
ordered the trial court to conduct a new Miller hearing, which
was not done. (See Robinson II, supra, B264801.) Defendant
concludes that we should therefore reverse the trial court’s denial
of his request to have his case transferred to juvenile court
pursuant to Welfare and Institutions Code section 707. The
judgment was not final at that time. The trial court did not hold
a Miller hearing, because it determined intervening changes in
the law made our direction moot. Instead it held a Franklin
hearing. (See People v. Franklin, supra, 63 Cal.4th 261.)
Defendant appealed, and we affirmed the trial court in Robinson
III, supra, B294169, without prejudice to file a procedurally
compliant petition for resentencing under section 1170, former
subdivision (d)(2). The California Supreme Court denied review
and the remittitur issued on December 16, 2019. As no petition
for writ of certiorari was filed in the United States Supreme
Court, the trial court’s order refusing a new Miller hearing was
final 90 days later. (See People v. Vieira (2005) 35 Cal.4th 264,

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306; People v. Johnson (2019) 32 Cal.App.5th 938, 942.)
Defendant filed his petition for resentencing almost one year
after that. Proposition 57 could not then be applied retroactively
to defendant in that his judgment was final.
Moreover, the petition defendant filed was not a petition for
transfer to juvenile court. He filed a petition for resentencing
pursuant to section 1170, subdivision (d). In his briefs
supporting that petition, defendant argued that once the trial
court vacated his sentence, it must then transfer jurisdiction of
his case to juvenile court for a fitness hearing pursuant to
Welfare and Institutions Code section 707, subdivision (a), as his
judgment would then be nonfinal.
At the hearing on the section 1170, subdivision (d) petition,
defense counsel requested the court rule first on defendant’s right
to a transfer to juvenile court before ruling on the section 1170,
subdivision (d) petition. The court agreed to do so and twice
during the hearing stated it had not yet ruled on whether to
vacate the sentence. As we read the arguments and the court’s
comments, the court understood defense counsel’s position to be
that, because defendant met the requirements for recalling his
sentence under section 1170, subdivision (d), or in the
alternative, as soon as the sentence was recalled, the court
should order the case transferred to juvenile court. The court
rejected defendant’s position, stating, “[M]y ruling is that I’m not
going to send him back to juvenile court.”
We find no ruling on the section 1170, subdivision (d)
petition in the record. Defendant contends that the trial court
denied the section 1170, subdivision (d) petition when it made a
partially quoted comment. As quoted in full, the referenced
comment made clear that the court was explaining the denial of

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the request to transfer the case to juvenile court: “But to not give
the court discretion, and then have to send the case back to
juvenile court, which is a waste of resources, potentially, for
somebody who could not have benefitted from the juvenile court
system. If that’s what the law wants, then okay. But it certainly
seems like to me the court should have some discretion in this
area; so I’m just putting that on the record.” The court’s ruling,
that it would not send defendant back to juvenile court
immediately follows this comment and made clear that the court
was refusing defendant’s request for a transfer, not ruling on the
section 1170, subdivision (d) petition.5
Relying on People v. Montes (2021) 70 Cal.App.5th 35, 48
(Montes); People v. Hwang (2021) 60 Cal.App.5th 358, 362, 366,
review granted April 14, 2021, S267274 (Hwang); and People v.
Lopez (2020) 56 Cal.App.5th 835, 840, 845, review granted
January 27, 2021, S265936 (Lopez), defendant contends that an
order recalling his sentence will render his judgment nonfinal for
purposes of a retroactive application of Proposition 57. The
Montes court joined with other Courts of Appeal in holding that
when a petition for recall and resentencing is granted, and the
petitioner is resentenced pursuant to section 1170, subdivision
(d), the new sentence replaces the original sentence and causes

5 The court also construed section 1170 as “asking . . . for
parole basically,” and noted defendant had been afforded a fitness
hearing when he was more than 25 years old. The court then
orally reviewed defendant’s juvenile and adult criminal history,
noting his prior period of parole from the California Youth
Authority in 2000 to 2001 and prison disciplinary reports from
2018 and 2019. Defendant represents that the fitness hearing
occurred in juvenile court in 2003.

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the judgment to be nonfinal for purposes of the retroactive
application of Proposition 57. (Montes, supra, at pp. 38-39, 45-48,
citing Lopez and Hwang.) In view of the California Supreme
Court’s decision in Padilla, in which the defendant’s judgment
was rendered nonfinal pursuant to habeas corpus, the
prosecution anticipates the likelihood that the Supreme Court
will extend its reasoning to judgments that have been recalled
pursuant to section 1170, subdivision (d). We agree. However,
we do not agree with defendant’s conclusion that in light of these
authorities “he is unquestionably eligible for relief [that] the
court is required to vacate his sentence” and that the trial court
erred in failing to recall his sentence and transfer his case to
juvenile court.
The extent of the court’s ruling was to reject the defense
request to transfer the case to juvenile court immediately. The
court’s oral ruling is reflected in the minute order of June 10,
2021, which provides “[d]efense motion to transfer case to
juvenile court per Proposition 57” was heard, argued, and denied.
There was no oral ruling or mention in the court’s minute order of
granting or denying the petition for recall and resentencing.
Defendant acknowledges that Montes, Hwang, review granted,
and Lopez, review granted, involved cases in which the defendant
had been resentenced after the section 1170, subdivision (d)
petition had been granted and the original sentence recalled.6

6 In his reply brief, defendant additionally cites People v.
Ramirez (2021) 71 Cal.App.5th 970, in which the denial of a
petition for resentencing and vacatur of a murder conviction
under section 1170.95 was reversed, and the matter remanded
with directions to grant the petition, vacate the murder

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Defendant’s notice of appeal is essentially a concession that he
sought a conditional ruling, in that it states the appeal is taken
“from the judgment denying the request for his matter to be
transferred to juvenile court jurisdiction once his sentence has
been vacated, pursuant to Pen. Code Section 1170(d)(2),
Proposition 57 . . . .” (Italics added.)
As the trial court did not rule on the section 1170,
subdivision (d) petition, our opinion as to defendant’s eligibility
for recall and resentencing would be premature until the trial
court follows the procedures set forth in section 1170, subdivision
(d) and issues a decision on the petition. Once a petition has
satisfied the pleading requirements of section 1170, subdivision
(d)(2), subdivision (d)(3) requires the trial court to determine
whether any information is missing and, if so, inform the
defendant. Statutory construction is a question of law we review
de novo, and we begin by examining the plain and commonsense
words of the statute to determine legislative intent. (People v.
Lewis (2021) 11 Cal.5th 952, 961.) Here, defendant’s petition
alleged that he satisfied three of the four requirements
enumerated in section 1170, subdivision (d)(2)—that he was
convicted of felony murder, had no juvenile felony adjudications
as described in subdivision (d)(2)(B), and that he had performed
acts that indicate rehabilitation. As the prosecution notes, the
petition did not include defendant’s statement of remorse and
work towards rehabilitation, but merely counsel’s representation.
We construe the statute as requiring the trial court to advise
defendant of missing information. (§ 1170, subd. (d)(3).)

conviction and then transfer the matter to the juvenile court.
(Ramirez, supra, at pp. 999-1000.)

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 Though the trial court called the hearing, it did not follow
these procedures. Instead, the hearing consisted of counsel’s
discussion with the court regarding defendant’s request to
transfer the case to juvenile court. The trial court also did not
follow the steps required once a petition with the requisite
allegations came before it, that is, to determine by a
preponderance of the evidence whether one or more of the
allegations enumerated in section 1170, subdivision (d)(2) was
true and, if so, to recall defendant’s sentence. (§ 1170, subd.
(d)(5).) The next step required of the trial court would have been
to exercise its discretion whether and how to resentence
defendant, considering a nonexclusive list of eight factors.
(§ 1170, subd. (d)(5) & (6).)
As defendant’s sentence was not recalled, it was premature
of defendant to insist on a ruling as to what the court would do if
the court recalled the sentence. Defendant’s present challenge to
the trial court’s ruling is likewise premature. Thus, although we
do not agree with the parties’ reasoning, we agree that the trial
court erred. The trial court had before it a section 1170,
subdivision (d) petition with appropriate allegations. The court
was required to allow defendant to provide any missing
information, then hold a hearing to determine by a
preponderance of the evidence whether one or more of the
allegations enumerated in section 1170, subdivision (d)(2) was
true. If so, the court could recall defendant’s sentence and
exercise its discretion in resentencing defendant. (§ 1170, subd.
(d)(5) & (6).)
Finding that the trial court erred, we reverse and remand
with directions to proceed as required by section 1170,
subdivision (d). We decline, however, to issue an advisory

14
opinion. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084.)
Thus, as the court may or may not grant the petition, we do not
reach defendant’s contention that the trial court should have
issued an order that it would transfer the case to juvenile court if
the sentence was recalled.

DISPOSITION
The order dated June 10, 2021, is reversed, and the matter
remanded to the trial court with directions to follow the
procedures of section 1170, subdivision (d) as outlined in this
opinion.

___________________________
CHAVEZ, J.

We concur:

_______________________________
ASHMANN-GERST, Acting P. J.

_______________________________
HOFFSTADT, J.

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