People v. Robson CA3

Filed 1/6/21 P. v. Robson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

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.

1

determinate term of 10 years. We affirmed this judgment in People v. Gordon et al. (July 27, 2010, C056183) [nonpub. opn.] (Gordon). On January 7, 2019, defendant sought resentencing pursuant to section 1170.95 in light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg. Sess.), which “ ‘amend[ed] 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).)” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted Mar. 18, 2020, S260493 (Verdugo).) Defendant’s pro. per. form petition for resentencing checked boxes declaring he had been prosecuted and convicted of felony murder and could not now be convicted of either first or second degree murder because of changes made to sections 188 and 189. This petition further declared defendant was not the actual killer and had not acted “with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.” However, the petition failed to declare that defendant “was not a major participant in the felony or . . . did not act with reckless indifference to human life during the course of the crime or felony.” The superior court summarily denied defendant’s petition without holding a hearing or appointing counsel. Defendant timely appealed, asserting the court erred by summarily denying his petition without first appointing counsel. Because defendant failed to aver that he was not a major participant and did not act with reckless indifference to human life, his petition was facially insufficient and failed to establish his eligibility for relief. (§§ 189, subd. (e)(3), 1170.95, subd. (a)(3).) However, the denial of his petition was without prejudice; he could correct this omission by bringing a successive petition expressly alleging the required facts. (§ 1170.95, subd. (b)(2).) Rather than putting him to a procedural task that would only delay resolution of