P. v. Robinson

Filed 7/14/20 P. v. Robinson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
AARON ROBINSON,
Defendant and Appellant.
B298823
(Los Angeles County
Super. Ct. No. BA308697)
APPEAL from an order of the Superior Court of
Los Angeles County. Robert J. Perry, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Ryan M. Smith, Deputy
Attorneys General for Plaintiff and Respondent.
__________________________

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Aaron Robinson appeals the trial court’s summary denial of
his petition for resentencing of his murder convictions pursuant
to Penal Code section 1170.95,1 a provision added by Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015)
(SB 1437). The court held Robinson did not qualify for
resentencing and, if he did, SB 1437 was unconstitutional.
We agree Robinson did not qualify for resentencing so we do not
reach the constitutional issues. We affirm.
BACKGROUND
Following trial, a jury convicted Robinson of two counts of
first degree murder, along with street gang and firearm
enhancements (§ 186.22, subds. (b)(1)(A) & (4); § 12022.53, subds.
(b)–(e)) and a street gang special circumstance (§ 190.2, subd.
(a)(22)). The trial court sentenced him to two consecutive terms
of life without parole plus two consecutive terms of 25 years to
life.
We affirmed the judgment in a prior appeal. (People v.
Robinson (Jan. 3, 2011, B217670) [nonpub. opn.].)2 We recited
the facts in detail in that opinion. To very briefly summarize:
Robinson was a member of the 5 Deuce Hoover gang. He and
other gang members obtained an AK-47 and shot two people
outside a strip club, killing them. Two days prior to the shooting,
Robinson and his cousin had been shot; Robinson was wounded
1 Undesignated statutory citations refer to the Penal Code.
2 We grant respondent’s request for judicial notice of our
prior opinion. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1133
(Lewis), review granted, Mar. 18, 2020, S260598.) We also grant
Robinson’s request to augment the record with excerpts from the
reporter’s transcripts for his trial.

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and his cousin was killed. Robinson blamed that shooting on the
rival 55 Neighborhoods gang, and sought to exact revenge. A
gang expert testified that the murders two days later were for the
benefit of Robinson’s gang.
In March 2019, Robinson filed a resentencing petition
pursuant to section 1170.95. The trial court summarily denied it
for two reasons: (1) Robinson was not entitled to relief because
he was the “actual killer”; and (2) SB 1437 was unconstitutional
on various grounds. Robinson appealed.
DISCUSSION
Effective January 1, 2019, SB 1437 addressed “certain
aspects of California law regarding felony murder and the
natural and probable consequences doctrine by
amending . . . sections 188 and 189” and by adding “section
1170.95, which provides a procedure by which those convicted of
murder can seek retroactive relief if the changes in law would
affect their previously sustained convictions. (Stats. 2018, ch.
1015, §§ 2–4.)” (People v. Martinez (2019) 31 Cal.App.5th 719,
722–723 (Martinez).) In short, SB 1437 “was enacted to ‘amend
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).)”
(Martinez, at p. 723.)
This change “did not, however, alter the law regarding the
criminal liability of direct aiders and abettors of murder because
such persons necessarily ‘know and share the murderous intent
of the actual perpetrator.’ [Citations.] One who directly aids and

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abets another who commits a murder is thus liable for murder
under the new law just as he or she was liable under the old law.”
(Lewis, supra, 43 Cal.App.5th at p. 1135.)
Section 1170.95 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to SB 1437.
A defendant may petition for resentencing if he or she was
“convicted of felony murder or murder under a natural and
probable consequences theory” and the following conditions are
met: “(1) A charging document was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) The petitioner was convicted of first or second
degree murder following trial or an accepted plea; and (3) The
petitioner could ‘not be convicted of first or second degree murder
because of changes to Section[s] 188 or 189’ made by Senate Bill
No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95,
subdivision (b), the petition must include: a declaration from the
petitioner that he or she is eligible for relief under the statute,
the superior court’s case number and year of conviction, and a
statement as to whether the petitioner requests appointment of
counsel. (§ 1170.95, subd. (b)(1).) If any of the required
information is missing and cannot ‘readily [be] ascertained by the
court, the court may deny the petition without prejudice to the
filing of another petition.’ (§ 1170.95, subd. (b)(2).)” (Lewis,
supra, 43 Cal.App.5th at pp. 1135–1136.)
Section 1170.95, subdivision (c) sets forth the procedure for
the trial court once the defendant files a complete petition:
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has

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requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor
response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.”
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) If the court vacates the murder conviction,
the court must resentence the defendant on the remaining
counts, or if no target offense was charged, “the petitioner’s
[murder] conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subds.
(d)(3), (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136–1137.)
We follow the cases interpreting section 1170.95,
subdivision (c) to permit a trial court to summarily deny a
petition when the defendant fails to make a “prima facie showing
that he [or she] ‘falls within the provisions of’ the statute.”
(Lewis, supra, 43 Cal.App.5th at p. 1137; see People v. Verdugo
(2020) 44 Cal.App.5th 320, 328 (Verdugo), review granted, Mar.
18, 2020, S260493.) The court may do so without appointing
counsel. As Verdugo cogently summarized: “The structure and
grammar of [subdivision (c)] indicate the Legislature intended to
create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing
by the parties.” (Verdugo, supra, at p. 332; see Lewis, supra, at
p. 1140 [counsel not appointed until “after the court determines
that the petitioner has made a prima facie showing that

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petitioner ‘falls within the provisions’ of the statute, and before
the submission of written briefs and the court’s determination
whether petitioner has made ‘a prima facie showing that he or
she is entitled to relief”]; see also People v. Tarkington ( 2020)
49 Cal.App.5th 892, 896 (Tarkington); People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted, Mar. 18, 2020, S260410.)
The trial court here summarily denied Robinson’s petition
at the prima facie stage without appointing counsel because
Robinson was convicted as an “actual killer.” Robinson takes
issue with this finding because, in his view, his record of
conviction does not demonstrate he was the actual killer. (See
Lewis, supra, 43 Cal.App.5th at p. 1137 [court may review record
of conviction at prima facie stage].)
We need not resolve this issue. Even if Robinson was not
the actual killer, he still is not entitled to resentencing. He does
not dispute he was convicted at least as a direct aider and
abettor. Indeed, the entire foundation of his argument on appeal
is that the prosecution proceeded “solely on an aider and abettor
theory against” him at trial. Consistent with this premise, he
points to the prosecutor’s argument in closing that he aided and
abetted the murders, and the trial court’s instructions on the
requirements for aiding and abetting liability. (See Tarkington,
supra, 49 Cal.App.5th at p. 909, [record of conviction includes
“the charging document, the verdict (or plea) forms, the jury
instructions, and any appellate opinion in the case”].)
Our prior opinion confirms Robinson was convicted at least
as a direct aider and abettor. We rejected his challenge to the
aider and abettor instructions, explaining: “Even assuming that
Robinson was not the shooter and that he was less culpable than
the shooter(s), the jury could not have convicted him unless all

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four elements of [the aiding and abetting] instruction were
satisfied. Notably, the jury would have had to find not only that
Robinson knew that the murders were about to be committed, the
jury would also have to find that he intended to and did in fact
aid and abet the commission of these crimes.” (People v.
Robinson, supra, B217670, at pp. 17–18.)
Likewise, the jury found true the gang-murder special
circumstance, which requires a finding of intent to kill. (§ 190.2,
subd. (a)(22) [“The defendant intentionally killed the victim while
the defendant was an active participant in a criminal street
gang . . . .”].) This confirms Robinson’s convictions were
necessarily based on his intent to kill, whether he was the actual
killer or an aider and abettor in the murders.
As noted above, SB 1437 only altered convictions based on
felony murder and the natural and probable consequences
doctrine. “Because one can be convicted of murder even after the
amendments if he or she directly aided and abetted the
perpetrator of the murder, [Robinson] was required to make a
prima facie showing that he was not such a direct aider and
abettor.” (Lewis, supra, 43 Cal.App.5th at p. 1137.) Robinson
has not suggested—let alone demonstrated—he was anything
less than a direct aider and abettor, or that either felony murder
or the natural and probable consequences played any role
whatsoever in his murder convictions. (Cf. People v. Smith (2020)
49 Cal.App.5th 85, 92, fn. 5 [“For example, if the jury was not
instructed on a natural and probable consequences or felony
murder theory of liability, the petitioner could not demonstrate
eligibility as a matter of law because relief is restricted to persons
convicted under one of those two theories.”].)

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Despite his clear ineligibility for resentencing, Robinson
argues we must reverse because the trial court’s denial was based
on the allegedly erroneous factual finding he was the actual
killer. He is wrong. “ ‘No rule of decision is better or more firmly
established by authority, nor one resting upon a sounder basis of
reason and propriety, than that a ruling or decision, itself correct
in law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to
the case, it must be sustained regardless of the considerations
which may have moved the trial court to its conclusion.’ ”
(D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19;
see People v. Smithey (1999) 20 Cal.4th 936, 971–972.)
He sets forth several arguments in his reply brief to avoid
this rule, but they are meritless. First, he contends an
affirmance would violate his “due process right to have the
review of the court order based on the same consideration of the
case and the issues as presented to the court.” The cases he cites
do not undermine the venerable rule that we may affirm a ruling
even if the trial court’s reasons were erroneous. (See Cole v.
Arkansas (1948) 333 U.S. 196, 201–202 [appellate court violates
due process in affirming conviction under a criminal statute not
charged or tried]; People v. Smith (2005) 37 Cal.4th 733, 740,
fn. 2 [drawing inferences from evidence on direct appeal based on
prosecutor’s closing argument].)
Next, Robinson contends this rule applies only to legal
questions, not the trial court’s factual conclusion he was the
actual shooter. He cites no cases that would support such a
limitation. In any case, it is undisputed he was at least a direct
aider and abettor. As explained above, that legally precludes

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relief under SB 1437. We need not resolve any issue of fact to
reach that conclusion.
Finally, even if Robinson is correct that we cannot ignore
the trial court’s allegedly faulty factual conclusion, we still cannot
reverse because the trial court’s alleged error was patently
harmless. Again, the record indisputably demonstrated he was
not eligible for relief as a direct aider and abettor, so he suffered
no possible prejudice from the trial court’s use of allegedly
erroneous reasoning. (See People v. Law (2020) 48 Cal.App.5th
811, 817–818, review granted, July 8, 2020, S262490, [affirming
denial of SB 1437 petition despite erroneous trial court reasoning
because record demonstrated no entitlement to resentencing].)
Thus, whether or not the trial court incorrectly concluded
Robinson was ineligible for relief because he was the actual
killer, SB 1437 did not affect Robinson’s convictions as a matter
of law. Any remand would be futile and wasteful. The trial court
properly denied the petition.
DISPOSITION
The order is affirmed.
BIGELOW, P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.

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