People v. Robinson CA1/5

Filed 8/3/23 P. v. Robinson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167017

v. (City & County of San Francisco LENORA ROBINSON, Super. Ct. Nos. SCN19717302 & CT2217961) Defendant and Appellant.

Defendant and appellant Lenora Robinson appeals the trial court’s denial of plaintiff and respondent the People of the State of California’s (People) petition for resentencing under Penal Code1 section 1172.1.2 After filing the petition, the People subsequently moved to withdraw it. The trial court denied the People’s motion to withdraw but denied Robinson’s petition. The court held it could not vacate Robinson’s conviction and resentence him under section 1172.1 because doing so would mean impermissibly striking a

1 All further statutory references are to the Penal Code unless

otherwise specified. 2 The petition was originally filed under section 1170.03. “Effective June 30, 2022, ‘[t]he Legislature . . . renumbered section 1170.03 to section 1172.1, but made no substantive changes.’ ” (People v. Braggs (2022) 85 Cal.App.5th 809, 818 (Braggs).) For clarity and consistency, we will only reference section 1172.1.

1

special circumstance finding. We affirm on the grounds that there is no relief available to Robinson under section 1172.1. I. BACKGROUND Following a jury trial in 2006, Robinson was convicted of first degree murder (§ 187), robbery (§ 212.5, subd. (c)), attempted robbery (§§ 664, 212.5, subd. (c)), conspiracy to commit robbery (§ 182, subd. (a)(1)), and being an ex- felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found true the special circumstance that the murder was committed during the attempted robbery. (§ 190.2, subd. (a)(17)(A).) The trial court sentenced Robinson to life without the possibility of parole. In March 2022, the People filed a petition for resentencing pursuant to section 1172.1. Specifically, the People requested “that the Court resentence Robinson to a lesser included conviction and eliminate the special circumstance enhancement.” In October 2022, the People filed a motion to withdraw its petition based on information contained in a recent risk assessment. Robinson opposed the motion. The People then filed a supplemental motion and argued that section 1385.1 prohibits the trial court from dismissing or striking a special circumstance finding. The People cited two recent cases from this District, including one from this Division, in support: People v. Caparaz (2022) 80 Cal.App.5th 669 (Caparaz) and People v. Garcia (2022) 83 Cal.App.5th 240 (Garcia). At the hearing on the resentencing petition, the trial court denied the People’s motion to withdraw. The court then denied the petition itself on the grounds that Caparaz and Garcia made clear the court “cannot maneuver the case in such a way as to dismiss the special circumstance under [section] 1385.1.” The court therefore concluded it could not grant relief to Robinson as a matter of law. The court further noted that section 1172.1, subdivision