People v. Robinson CA3

Filed 9/9/21 P. v. Robinson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091744

Plaintiff and Respondent, (Super. Ct. No. 95F04763)

v.

THOMAS ROBINSON,

Defendant and Appellant.

On March 20, 1997, a jury found defendant Thomas Crater Robinson guilty of one count of first degree murder (Pen. Code, § 187),1 five counts of robbery (§ 211), and two counts of attempted robbery (§§ 211/644). The jury also found true a murder special circumstance that defendant had been engaged in robbery (§ 190.2, subd. (a)(17)), had personally used a firearm for seven counts (§ 12022.5, subd. (a)), was armed with a

1 Undesignated statutory references are to the Penal Code.

1

firearm for one count (§ 12022, subd. (a)), and inflicted great bodily injury for one count (§ 12022.7). Defendant also had a prior strike conviction. On April 28, 1997, defendant was sentenced to life without the possibility of parole, plus an additional determinate term of 47 years. We affirmed this judgment in People v. Robinson (Dec. 10, 1999, C026595) [nonpub. opn.] (Robinson). On December 2, 2019, defendant filed a petition for resentencing under 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 appointed defense counsel, the prosecutor filed a response and a motion to dismiss the petition, and defense counsel filed a reply. On February 24, 2020, the trial court dismissed defendant’s petition finding him ineligible because a jury unanimously found defendant guilty of “first degree murder and that a Penal Code [section] 190.2[, subdivision ](a)(17) robbery-murder special circumstance was true. . . . As such, the jury necessarily made a true finding, beyond a