Opinion
B298823
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON ROBINSON, Defendant and Appellant.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Ryan M. Smith, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA308697) APPEAL from an order of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed. Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Ryan M. Smith, Deputy Attorneys General for Plaintiff and Respondent.
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Aaron Robinson appeals the trial court's summary denial of his petition for resentencing of his murder convictions pursuant to Penal Code section 1170.95, a provision added by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437). The court held Robinson did not qualify for resentencing and, if he did, SB 1437 was unconstitutional. We agree Robinson did not qualify for resentencing so we do not reach the constitutional issues. We affirm.
Undesignated statutory citations refer to the Penal Code.
BACKGROUND
Following trial, a jury convicted Robinson of two counts of first degree murder, along with street gang and firearm enhancements (§ 186.22, subds. (b)(1)(A) & (4); § 12022.53, subds. (b)-(e)) and a street gang special circumstance (§ 190.2, subd. (a)(22)). The trial court sentenced him to two consecutive terms of life without parole plus two consecutive terms of 25 years to life.
We affirmed the judgment in a prior appeal. (People v. Robinson (Jan. 3, 2011, B217670) [nonpub. opn.].) We recited the facts in detail in that opinion. To very briefly summarize: Robinson was a member of the 5 Deuce Hoover gang. He and other gang members obtained an AK-47 and shot two people outside a strip club, killing them. Two days prior to the shooting, Robinson and his cousin had been shot; Robinson was wounded and his cousin was killed. Robinson blamed that shooting on the rival 55 Neighborhoods gang, and sought to exact revenge. A gang expert testified that the murders two days later were for the benefit of Robinson's gang.
We grant respondent's request for judicial notice of our prior opinion. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1133 (Lewis), review granted, Mar. 18, 2020, S260598.) We also grant Robinson's request to augment the record with excerpts from the reporter's transcripts for his trial. --------
In March 2019, Robinson filed a resentencing petition pursuant to section 1170.95. The trial court summarily denied it for two reasons: (1) Robinson was not entitled to relief because he was the "actual killer"; and (2) SB 1437 was unconstitutional on various grounds. Robinson appealed.
DISCUSSION
Effective January 1, 2019, SB 1437 addressed "certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending . . . sections 188 and 189" and by adding "section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)" (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).) In short, SB 1437 "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, subd. (f).)" (Martinez, at p. 723.)
This change "did not, however, alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.' [Citations.] One who directly aids and abets another who commits a murder is thus liable for murder under the new law just as he or she was liable under the old law." (Lewis, supra, 43 Cal.App.5th at p. 1135.)
Section 1170.95 creates a multi-step procedure for a defendant to petition for resentencing pursuant to SB 1437. A defendant may petition for resentencing if he or she was "convicted of felony murder or murder under a natural and probable consequences theory" and the following conditions are met: "(1) A charging document was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) The petitioner was convicted of first or second degree murder following trial or an accepted plea; and (3) The petitioner could 'not be convicted of first or second degree murder because of changes to Section[s] 188 or 189' made by Senate Bill No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95, subdivision (b), the petition must include: a declaration from the petitioner that he or she is eligible for relief under the statute, the superior court's case number and year of conviction, and a statement as to whether the petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the required information is missing and cannot 'readily [be] ascertained by the court, the court may deny the petition without prejudice to the filing of another petition.' (§ 1170.95, subd. (b)(2).)" (Lewis, supra, 43 Cal.App.5th at pp. 1135-1136.)
Section 1170.95, subdivision (c) sets forth the procedure for the trial court once the defendant files a complete petition: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
Should the court issue an order to show cause, it must hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d).) If the court vacates the murder conviction, the court must resentence the defendant on the remaining counts, or if no target offense was charged, "the petitioner's [murder] conviction shall be redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subds. (d)(3), (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136-1137.)
We follow the cases interpreting section 1170.95, subdivision (c) to permit a trial court to summarily deny a petition when the defendant fails to make a "prima facie showing that he [or she] 'falls within the provisions of the statute." (Lewis, supra, 43 Cal.App.5th at p. 1137; see People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo), review granted, Mar. 18, 2020, S260493.) The court may do so without appointing counsel. As Verdugo cogently summarized: "The structure and grammar of [subdivision (c)] indicate the Legislature intended to create a chronological sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by the parties." (Verdugo, supra, at p. 332; see Lewis, supra, at p. 1140 [counsel not appointed until "after the court determines that the petitioner has made a prima facie showing that petitioner 'falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made 'a prima facie showing that he or she is entitled to relief"]; see also People v. Tarkington ( 2020) 49 Cal.App.5th 892, 896 (Tarkington); People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted, Mar. 18, 2020, S260410.)
The trial court here summarily denied Robinson's petition at the prima facie stage without appointing counsel because Robinson was convicted as an "actual killer." Robinson takes issue with this finding because, in his view, his record of conviction does not demonstrate he was the actual killer. (See Lewis, supra, 43 Cal.App.5th at p. 1137 [court may review record of conviction at prima facie stage].)
We need not resolve this issue. Even if Robinson was not the actual killer, he still is not entitled to resentencing. He does not dispute he was convicted at least as a direct aider and abettor. Indeed, the entire foundation of his argument on appeal is that the prosecution proceeded "solely on an aider and abettor theory against" him at trial. Consistent with this premise, he points to the prosecutor's argument in closing that he aided and abetted the murders, and the trial court's instructions on the requirements for aiding and abetting liability. (See Tarkington, supra, 49 Cal.App.5th at p. 909, [record of conviction includes "the charging document, the verdict (or plea) forms, the jury instructions, and any appellate opinion in the case"].)
Our prior opinion confirms Robinson was convicted at least as a direct aider and abettor. We rejected his challenge to the aider and abettor instructions, explaining: "Even assuming that Robinson was not the shooter and that he was less culpable than the shooter(s), the jury could not have convicted him unless all four elements of [the aiding and abetting] instruction were satisfied. Notably, the jury would have had to find not only that Robinson knew that the murders were about to be committed, the jury would also have to find that he intended to and did in fact aid and abet the commission of these crimes." (People v. Robinson, supra, B217670, at pp. 17-18.)
Likewise, the jury found true the gang-murder special circumstance, which requires a finding of intent to kill. (§ 190.2, subd. (a)(22) ["The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . ."].) This confirms Robinson's convictions were necessarily based on his intent to kill, whether he was the actual killer or an aider and abettor in the murders.
As noted above, SB 1437 only altered convictions based on felony murder and the natural and probable consequences doctrine. "Because one can be convicted of murder even after the amendments if he or she directly aided and abetted the perpetrator of the murder, [Robinson] was required to make a prima facie showing that he was not such a direct aider and abettor." (Lewis, supra, 43 Cal.App.5th at p. 1137.) Robinson has not suggested—let alone demonstrated—he was anything less than a direct aider and abettor, or that either felony murder or the natural and probable consequences played any role whatsoever in his murder convictions. (Cf. People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5 ["For example, if the jury was not instructed on a natural and probable consequences or felony murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories."].)
Despite his clear ineligibility for resentencing, Robinson argues we must reverse because the trial court's denial was based on the allegedly erroneous factual finding he was the actual killer. He is wrong. " 'No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; see People v. Smithey (1999) 20 Cal.4th 936, 971-972.)
He sets forth several arguments in his reply brief to avoid this rule, but they are meritless. First, he contends an affirmance would violate his "due process right to have the review of the court order based on the same consideration of the case and the issues as presented to the court." The cases he cites do not undermine the venerable rule that we may affirm a ruling even if the trial court's reasons were erroneous. (See Cole v. Arkansas (1948) 333 U.S. 196, 201-202 [appellate court violates due process in affirming conviction under a criminal statute not charged or tried]; People v. Smith (2005) 37 Cal.4th 733, 740, fn. 2 [drawing inferences from evidence on direct appeal based on prosecutor's closing argument].)
Next, Robinson contends this rule applies only to legal questions, not the trial court's factual conclusion he was the actual shooter. He cites no cases that would support such a limitation. In any case, it is undisputed he was at least a direct aider and abettor. As explained above, that legally precludes relief under SB 1437. We need not resolve any issue of fact to reach that conclusion.
Finally, even if Robinson is correct that we cannot ignore the trial court's allegedly faulty factual conclusion, we still cannot reverse because the trial court's alleged error was patently harmless. Again, the record indisputably demonstrated he was not eligible for relief as a direct aider and abettor, so he suffered no possible prejudice from the trial court's use of allegedly erroneous reasoning. (See People v. Law (2020) 48 Cal.App.5th 811, 817-818, review granted, July 8, 2020, S262490, [affirming denial of SB 1437 petition despite erroneous trial court reasoning because record demonstrated no entitlement to resentencing].)
Thus, whether or not the trial court incorrectly concluded Robinson was ineligible for relief because he was the actual killer, SB 1437 did not affect Robinson's convictions as a matter of law. Any remand would be futile and wasteful. The trial court properly denied the petition.
DISPOSITION
The order is affirmed.
BIGELOW, P. J. WE CONCUR:
STRATTON, J.
WILEY, J.