People v. Robinson CA1/5

Filed 12/23/21 P. v. Robinson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for pur- poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A161994 v. DWAYNE ROBINSON, (Alameda County Super. Ct. No. HC162995- Defendant and Appellant. 1, 162995)

Dwayne Robinson appeals from an order denying a petition seeking resentencing under Penal Code section 1170.95.1 We affirm. The trial court should have appointed counsel before ruling on the motion, but given the record of conviction, the error was harmless. I. BACKGROUND In 2009, appellant fired several shots at a rival group outside a restaurant, killing one of their members. He was convicted of second-degree murder with enhancements for personal use of a firearm and assault with a firearm. (§§ 187, subd. (a), 245, subd. (a)(2), 12022.5, subd. (a), 12022.53, subds.

1 Further references are to the Penal Code.

1

(b)–(d).) We affirmed the judgment in an unpublished opinion. (People v. Robinson (Oct. 8, 2013, A133703) [nonpub. opn.].) After the judgment in appellant’s case became final, the Legislature enacted Senate Bill 1437, which amended the law relating to accomplice liability for murder by eliminating the natural and probable consequences doctrine as a basis for finding an aider and abettor guilty of murder and by significantly narrowing the scope of felony-murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3); People v. Gentile (2020) 10 Cal.5th 830, 842–843, (Gentile).) Section 188, subdivision (a)(3) now provides, “Except [for felony-murder liability] 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.’ ” Under section 189, subdivision (e), a murder conviction under a felony murder theory is appropriate only when the defendant was the actual killer or an aider and abettor who acted with an intent to kill or was a “major participant in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e)(1)–(3).) Senate Bill 1437 also enacted section 1170.95, under which an individual convicted of murder based on the natural and probable consequences doctrine or the felony murder rule can petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if a murder conviction would have been inappropriate because of Senate Bill 1437’s changes to the definition of murder.