Filed 11/18/22 P. v. Robson CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089152
Plaintiff and Respondent, (Super. Ct. No. 04F06813)
v. OPINION ON TRANSFER
JUSTIN WAYNE ROBSON,
Defendant and Appellant.
On June 28, 2006, a jury convicted defendant Justin Wayne Robson of first degree
murder with a special circumstance that he had been engaged in robbery (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17))1 and found true the allegation that he had
personally used a firearm (§ 12022.53, subd. (d)). The jury also found true that
defendant’s codefendant, Ira Gordan, had discharged a firearm causing death. Thereafter,
defendant was sentenced to life without the possibility of parole, plus an additional
1 Undesignated statutory references are to the Penal Code.
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determinate term of 10 years. We affirmed this judgment in People v. Gordon et al.
(July 27, 2010, C056183) (nonpub. opn.).
On January 7, 2019, defendant sought resentencing pursuant to former section
1170.952 in light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg.
Sess.), which was summarily denied by the trial court. Our original opinion in this appeal
concluded that while defendant had filed a deficient petition in propria persona, we would
nonetheless address the merits of his claims on appeal in the name of judicial efficiency.
We concluded on the merits that defendant could not state a prima facie case for relief
and affirmed the trial court’s order. (People v. Robson (Jan. 6, 2021, C089152) [nonpub.
opn.] (Robson).)
Defendant filed a petition for review with the California Supreme Court, which
directed this court to vacate our previous decision and reconsider the matter in light of
People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th
952 (Lewis). Having done so, we conclude the trial court’s order must be vacated, and
the matter remanded for further proceedings consistent with this opinion.
BACKGROUND
Factual Background
According to our opinion in Gordon, defendant and his two codefendants, Gordon
and Jamaur Wilson, were in the parking lot of a liquor store when the murder victim
drove up with his girlfriend. The victim and his girlfriend went into the store. As they
returned, Gordon entered the car, sat in the rear passenger seat, and asked the victim if he
would give them a ride. Defendant then got into the rear seat behind the victim. Wilson
2 Defendant filed the petition in 2019. Effective June 30, 2022, the Legislature
renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were
no substantive changes to the statute. For purposes of clarity and conformity with the
petition, we will continue to refer to the statute as former section 1170.95 throughout the
opinion.
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stood next to the driver’s window of the car. The victim declined Gordon’s ride request.
All three defendants began striking the victim. Defendant pistol-whipped the victim
multiple times and then got out of the car, joining Wilson next to the driver’s window.
Gordon, who remained in the car, told the victim to give him all his money and
everything he had in his pockets. The girlfriend ran into the store to call for help. As she
returned the victim appeared to be trying to get his wallet out of his pocket. She then
observed flashes and heard gunshots with each flash. Defendant was outside the car,
holding a gun pointed at the ground. Gordon, who remained in the car seated behind the
victim, had pulled out a semiautomatic handgun.
The three defendants fled to an apartment complex where they all lived and where
they split some marijuana, money, and pills. A revolver and a semiautomatic handgun
were recovered from defendant’s apartment. The bullets recovered from the victim’s
body were fired from the .380-caliber semiautomatic. All three bullets were consistent
with the victim’s sitting in the driver’s seat of the vehicle and being shot from the back
seat on the right passenger side.
Legal Background
Senate Bill No. 1437, which became effective on January 1, 2019, was enacted “to
amend the felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1(f).) The legislation accomplished this by amending sections 188 and 189
and adding former section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
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now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [(defining first degree murder)] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also “added [former] section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and probable
consequences doctrine to seek relief . . . .” (People v. Gentile (2020) 10 Cal.5th 830,
843.) Former section 1170.95, subdivisions (b) and (c) create a two-step process for
evaluating a petitioner’s eligibility for relief. (Lewis, supra, 11 Cal.5th at pp. 960-962.)
First, the trial court determines whether the petition is facially sufficient under former
section 1170.95, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient,
then, the trial court moves on to former subdivision (c), appointing counsel (if requested)
and following the briefing schedule set out in the statute. (Lewis, at p. 966.) Following
the completion of this briefing, the trial court then determines whether the petitioner has
made a prima facie showing they are entitled to relief. (Ibid.)
As the Supreme Court explained, “[w]hile the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A]
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court should not reject the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
As relevant here, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch.
551, §§ 1-2), which took effect on January 1, 2022, amended former section 1170.95 to
“[c]odif[y] the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding
petitioners’ right to counsel and the standard for determining the existence of a prima
facie case” and to “[r]eaffirm[ ] that the proper burden of proof at a resentencing hearing
under this section is proof beyond a reasonable doubt.” (Stats. 2021, ch. 551, § 1; Cal.
Const., art. IV, § 8.)
DISCUSSION
As we noted in Gordon, the prosecution was not required to prove that defendant
was the shooter or an aider and abettor. However, the People also alleged and the jury
found true the robbery-murder special circumstance, which authorizes a sentence of life
without the possibility of parole for “a major participant” in a felony murder who acted
with “reckless indifference to human life.” (§ 190.2, subd. (d); id. subd. (a)(17).) Thus,
our original opinion in Robson concluded the jury’s findings precluded defendant from
making a prima facie case for relief as a matter of law. (Robson, supra, C089152.) This
was so because the jury’s prior findings mirrored the requirements for establishing felony
murder as amended by Senate Bill No. 1437, and we rejected defendant’s arguments that
these findings should not be given preclusive effect in light of the Supreme Court’s
opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th
522. (Robson, supra, C089152.)
After Robson, our Supreme Court issued Strong, which concluded: “Findings
issued by a jury before Banks and Clark do not preclude a defendant from making out a
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prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.”
(Strong, supra, 13 Cal.5th at p. 710.) Thus, because the jury’s pre-Banks and Clark
findings do not preclude defendant from making a prima facie case, we now conclude
that we must vacate the trial court’s order and remand for further proceedings consistent
with this opinion.
We further conclude that because defendant’s former section 1170.95 petition
averred that he had been: (1) charged with felony murder or murder under the natural
and probable consequences doctrine; (2) had been convicted of murder pursuant to one of
those doctrines; and (3) could not now be convicted of murder because of changes made
effective January 1 2019, he did make a prima facie showing entitling him to the
appointment of counsel and briefing in this matter. (Lewis, supra, 11 Cal.5th at pp. 959-
960; former § 1170.95, subd. (c).)
DISPOSITION
The order denying defendant’s section 1170.95 petition is vacated, and the matter
is remanded with directions to conduct further proceedings consistent with this opinion.
/s/
HOCH, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
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