Opinion
B305779
07-21-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS ROBLES, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A390729 H. Clay Jacke II, Judge. Reversed and remanded for further proceedings.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 1984, a jury convicted Jose Luis Robles of first degree murder and attempted murder. In 2019, Robles petitioned for vacation of his murder conviction and resentencing pursuant to Penal Code section 1170.95. After appointing counsel for Robles and considering briefing, the trial court denied the petition, concluding that Robles was not prosecuted under the felony murder rule or the natural and probable consequences doctrine. The parties agree this was error, because the version of CALCRIM No. 3.00 in use at the time allowed for the possibility that the jury convicted Robles under the natural and probable consequences doctrine. We agree, and reverse and remand for further proceedings in accordance with section 1170.95.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the factual and procedural background in part from our unpublished opinion in this case, of which we have taken judicial notice on our own motion. (Evid. Code, § 451.)
1. The crimes, Robles's conviction, and original appeal
On the evening of May 12, 1983, Robles, Efran Gonzalez, Miguel Cesares, and an individual known as “Gordo, ” were “cruising” in an orange van in the area of Eighth Street and New Hampshire Avenue in Los Angeles. At least one of the men was a member of the 18th Street gang. Gonzalez stated, “Let's go shoot Playboys, ” referring to a rival gang. Initially, the group was unsuccessful in finding Playboys gang members. However, when they traveled past the 2600 block of 15th Street, they spotted a group of Playboys on the corner. One of the van's occupants pointed a rifle out the window and fired six shots at the Playboys. Multiple shots hit Jesus Resendez, killing him. Two gunshots hit Kevin Scott. He was hospitalized, but survived.
Based on the trial evidence, either Gonzalez or Robles was the driver of the van, and either Gonzalez or Cesares was the shooter. Robles told police in a pretrial interview that he was not a member of the 18th Street gang, although he associated with gang members. He was a passenger in the van and remained there when someone suggested shooting Playboys because he was afraid to exit the van in Playboys territory.
A jury convicted Robles of the first degree murder of Resendez (§ 187), the attempted murder of Scott (§§ 664, 187), and assault with a firearm upon Scott. It also found that a principal was armed in the commission of each offense. (§ 12022, subd. (a).) The trial court sentenced Robles to 25 years to life in prison.
A different division of this court affirmed Robles's judgment in part in 1986. (People v. Robles (March 5, 1986, B012041) [nonpub. opn.].) The court rejected Robles's claim of instructional error, but reversed his assault conviction because it was a necessarily included offense of murder.
2. The section 1170.95 petition
In February 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), Robles filed a petition for vacation of his murder conviction and resentencing. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and he could not now be convicted of first or second degree murder because of changes to sections 188 and 189 effectuated by Senate Bill 1437. He also checked a box requesting that counsel be appointed for him. The court thereafter appointed counsel for Robles.
The People opposed the petition, arguing that Robles had failed to make a prima facie showing he fell within section 1170.95's ambit because he was not prosecuted pursuant to the felony-murder rule or the natural and probable consequences doctrine; they also argued that Senate Bill 1437 was unconstitutional. The People attached various documents to their opposition, including this court's prior unpublished opinion and the jury instructions given in the case. Robles, through counsel, filed a reply and a supplemental reply. In the former, he argued that the evidence was insufficient to prove he killed the victim or was an aider and abettor, and “maintain[ed] his innocence.” He also argued that Senate Bill 1437 applies to attempted murder convictions. In the supplemental reply, he argued that the jury was in fact instructed on the natural and probable consequences doctrine in CALJIC No. 3.00.
On March 13, 2020, the trial court denied the petition, finding that “the prosecution has proven beyond a reasonable doubt that the petitioner is ineligible for resentencing as the petitioner was not convicted with the use of the felony murder rule or the doctrine of natural and probable consequences. Petitioner could be convicted now under the current law as an aider and abettor.”
Robles filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39 Cal.App.5th 738, 749-750, 763, review granted Nov. 26, 2019, S258234.)
Prior to Senate Bill 1437's enactment, under the felony-murder rule “a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248; People v. Powell (2018) 5 Cal.5th 921, 942.) Under the natural and probable consequences doctrine, a defendant was “liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (Lamoureux, at p. 248.)
Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (People v. Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.”
Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony-murder or natural and probable consequences theory may petition for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he meets three conditions: (1) he must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) he must have been convicted of first or second degree murder, and (3) he could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-step process: an initial review to determine the petition's facial sufficiency; a prebriefing, “ ‘first prima facie review' ” to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at pp. 327-330, rev.gr.)
When conducting the first prima facie review, the court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he or she was convicted of a qualifying crime, pursuant to the natural and probable consequences doctrine or felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at pp. at pp. 897-898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329-330, rev.gr.) If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may summarily deny the petition without appointing counsel. (Tarkington, at pp. 898, 900-902; Verdugo, at p. 332; People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598.)
If, however, the petitioner's eligibility is not established as a matter of law, the court must appoint counsel and permit briefing to determine whether the petitioner has made a prima facie showing he is entitled to relief. (Verdugo, supra, 44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a showing, the court must issue an order to show cause (OSC) and conduct a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) At that hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
2. The jury instructions do not establish, as a matter of law, that Robles is ineligible or cannot establish entitlement to relief
The parties agree that the trial court erred by denying the petition. We agree as well. Because the record did not foreclose relief as a matter of law, we conclude the trial court erred by denying the petition without issuing an OSC and holding a hearing.
To be eligible for resentencing, Robles was required to show that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189” made by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) “[P]otential relief under section 1170.95 extends only to those convicted of murder by operation of the natural and probable consequence doctrine or of felony murder. [Citation.]” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056, review granted Sept. 23, 2020, S263939; People v. Lee (2020) 49 Cal.App.5th 254, 263-265, review granted July 15, 2020, S262459.) Thus, where the record shows that the petitioner was not tried under either of these theories, he necessarily “was convicted on a theory that survives the changes to sections 188 and 189” enacted by Senate Bill 1437. (Tarkington, supra, 49 Cal.App.5th at p. 899, rev.gr.; see, e.g., Soto, at p. 1055 [trial court may rely on jury instructions when determining whether petitioner has made a prima facie showing of entitlement to relief]; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481 [where jury instructions showed petitioner was not convicted under felony-murder rule or natural and probable consequences theory, he could not meet the statutory prerequisites for filing a § 1170.95 petition]; People v. Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.)
There is no dispute that Robles was not prosecuted, and his jury was not instructed, on the felony-murder rule. However, the same cannot be said, as a matter of law, as to the natural and probable consequences doctrine. Robles was tried in 1984. His jury was instructed on several theories of first degree murder, including aiding and abetting, deliberate and premeditated murder, and murder by means of lying in wait. The court also instructed with the 1979 version of CALJIC No. 3.00, a portion of which stated: “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.”
At the time of Robles's trial, the pattern instruction on the natural and probable consequences doctrine that is in use today did not exist. (See People v. Prettyman (1996) 14 Cal.4th 248, 263-264 [discussing development of pattern instruction].) It was not until 1996 that the California Supreme Court held that trial courts are required to instruct on a “target” offense or offenses when the prosecutor relies on the natural and probable consequences doctrine. (Id. at p. 254.) Here, because we do not have the portion of the record containing the parties' arguments, we cannot determine whether the People actually relied on the natural and probable consequences doctrine as a theory of guilt. (See generally id. at p. 273 [where parties made no reference to the natural and probable consequences doctrine in their arguments to the jury, it was highly unlikely jury relied upon that theory to convict].) Therefore, although the instruction did not list a target crime, we cannot say, as a matter of law, that the jury could not have relied on a natural and probable consequences analysis to find Robles guilty. And based on the limited record before us, we cannot say that some other instruction, or the jury's verdicts, demonstrate that Robles was convicted on a still-valid theory.
Therefore, the court's denial of the petition was premature. The matter must be remanded for issuance of an OSC pursuant to section 1170.95, subdivision (c), and a hearing pursuant to subdivision (d). We express no opinion on whether Robles is ultimately entitled to relief.
DISPOSITION
The order denying Robles's petition for resentencing under section 1170.95 is reversed. The matter is remanded to the trial court with directions to issue an OSC and hold a hearing in accordance with section 1170.95, subdivisions (c) and (d).
I concur: EGERTON, J.
KALRA, J., [*] Concurring.
Because the record of conviction fails to establish as a matter of law that Jose Luis Robles was not prosecuted for murder under a theory made invalid per Senate Bill No. 1437, i.e., felony murder or the natural and probable consequences doctrine, I agree with the majority that the trial court's order denying the Penal Code section 1170.95 petition must be reversed and the matter remanded for issuance of an order to show cause under subdivision (c) of that section. I otherwise express no opinion on the issues currently pending review in People v. Lewis (2020) 43 Cal.App.5th 1128, 1139, review granted March 18, 2020, S260598.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.