People v. Robles CA2/1 ( 2022 )

Filed 12/27/22 P. v. Robles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B310393
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA106590)
v.
JESSE ROBLES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Reversed and
remanded with directions.
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
Jesse Robles, who was convicted of first degree murder in
2011, appeals from an order denying his petition for resentencing
under Penal Code section 1172.6.1 He contends the trial court
erred in denying his petition without issuing an order to show
cause and conducting an evidentiary hearing. We agree. His
record of conviction, including the jury’s true findings on felony-
murder and gang-murder special circumstance allegations, does
not show he is ineligible for relief under section 1172.6 as a
matter of law. Accordingly, we reverse the order and remand the
matter for further proceedings.
BACKGROUND
I. Trial and Direct Appeal
A. The charges
As relevant to the proceedings before us, Robles and his
codefendants, brothers Hector Prieto and Jose Prieto,2 were
charged with three counts of murder (§ 187, subd. (a)) and one
count of second degree robbery (§ 211) against an additional
victim. As to the murders, the third amended information, filed
February 22, 2011 (hereafter referred to as “the information”),
alleged three special circumstances: multiple murders (§ 190.2,
subd. (a)(3)); felony murder (§ 190.2, subd. (a)(17)); and gang
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). Robles filed his petition prior to this renumbering,
and he therefore referred to the statute as section 1170.95 in his
petition. In this opinion, for the sake of consistency, we refer to
the statute by its current designation, section 1172.6.
Undesignated statutory references are to the Penal Code.
Hereafter, we refer to Robles’s codefendants by their first
2
names to avoid confusion.
2
murder (§ 190.2, subd. (a)(22) [“The defendant intentionally
killed the victim while the defendant was an active participant in
a criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of
the criminal street gang”]). As to the gang-murder special
circumstance, the information alleged, in pertinent part, “that a
principal intentionally killed [the victims], and that the
defendant, Hector Martin Prieto, intended to kill [the victims]
while the defendants were active participants in a criminal street
gang and the murders were carried out to further the activities of
the criminal street gang.” (Internal capitalization omitted.)
The information also alleged as to the murders that Hector
personally and intentionally discharged a handgun, causing the
death of the three victims (§ 12022.53, subd. (d)), and a principal
personally and intentionally discharged a handgun, causing the
death of the three victims (§ 12022.53, subd. (e)(1)). As to the
robbery count, the information alleged Jose personally used a
handgun. (§ 12022.53, subd. (b).) The information alleged all
offenses were committed for the benefit of, at the direction of, or
in association with a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C).
B. The trial
Robles, Hector, and Jose were tried together.
1. The crimes
We provide a brief account of the facts and circumstances of
the crimes to provide context for our legal analysis on the issue
before us. We derive this account from the opinion in Robles’s
and Jose’s direct appeal, as the parties to the present appeal did
in their appellate briefing. Our legal analysis does not depend
upon an interpretation of the facts and circumstances of the
3
crimes; rather, it is dependent upon the procedural record of the
case (e.g., jury instructions given, and verdicts rendered).
On March 29, 2009, when the crimes occurred, 22-year-old
Jose, 19-year-old Hector, and 19-year-old Robles (collectively, the
defendants) were members of the same gang. That morning, Jose
and Hector discussed plans to commit a robbery to raise money to
bail their mother out of jail. Robles was present during the
discussion. According to Jesus Saldana, a fellow gang member
who was also present during this discussion and who testified at
trial, Robles agreed to help Jose and Hector and told them, “ ‘I got
your back.’ ” (People v. Prieto (Nov. 30, 2012, B233309) [nonpub.
opn.], pp. 4-5 (Prieto).)
The same evening, Robles drove Hector in his (Robles’s)
pickup truck and parked at a corner, near the apartment of
Andrew Williams, a marijuana dealer. A woman named Rosa
Avila, who testified at trial, drove Jose in her car and parked
behind Robles. According to the prosecution’s gang expert,
Williams’s apartment was located in an area the defendants’
gang had recently claimed as part of its territory; the area was
previously claimed by another gang. (Prieto, supra, B233309, pp.
5, 8, 12.)
At around 7:00 p.m., Hector exited Robles’s truck and
walked to Williams’s apartment. Jose exited Avila’s car and
waited outside, near the front door of Williams’s apartment.
Robles and Avila waited in their vehicles. According to Saldana,
who testified at trial about a conversation he had with Hector
after the shooting, Hector knocked on the apartment door and a
man (Williams) answered. Hector asked the man for a $20
“ ‘sack’ ” of marijuana. When the man turned around, Hector
shot him in the head and killed him. Next, Hector shot in the
4
head and killed another man (Ronald Carter), who was sitting on
a couch. Finally, Hector shot a woman (Sinecia Miller) in the
head and killed her in the apartment. Hector took $4,000-$5,000
and some marijuana and left the apartment. (Prieto, supra,
B233309, pp. 5-6, 8.)
Reginald Kemp, who testified at trial, was walking toward
Williams’s apartment, on his way to purchase marijuana, when
he heard gunshots. A man Kemp later identified as Jose was
standing near the front door of Williams’s apartment. Jose
approached Kemp, pointed a handgun at him, and asked, “ ‘What
do you got?’ ” Jose grabbed Kemp’s money, and Kemp ran away.
(Prieto, supra, B233309, pp. 5-6.)
Hector returned to Robles’s truck, and Jose returned to
Avila’s car. They drove to Avila’s apartment complex. After they
arrived, Avila saw Hector, Jose, and Robles “ ‘high-fiving’ ”
several other men. Late in the evening, the same day the crimes
were committed, Hector posted bond for his mother, and she was
released from jail the following morning. (Prieto, supra,
B233309, pp. 6-7.)
The prosecution’s gang expert opined that Hector, Jose, and
Robles were members of a criminal street gang; and that
hypothetical crimes, mirroring the facts of this case as presented
through the prosecution’s evidence, would have been committed
for the benefit of a criminal street gang. The defense’s gang
expert opined that the hypothetical crimes would have been
committed, not for the benefit of a gang, but to bail the mother
out of jail. (Prieto, supra, B233309, pp. 11-15.)
2. Jury instructions
At trial, the prosecution presented two theories of first
degree murder: (1) willful, deliberate and premeditated murder,
5
with Jose and Robles directly aiding and abetting Hector in the
murders, and (2) felony murder, with Jose and Robles directly
aiding and abetting a robbery Hector committed at Williams’s
apartment. The trial court instructed the jury on both theories.
The trial court also instructed the jury on each of the
special circumstance allegations and explained to the jurors that
they “must consider each special circumstance separately for each
defendant.” (CALCRIM No. 700.) The court used CALCRIM No.
703 to explain to the jury how to make a determination on the
felony-murder special circumstance alleged against a defendant
whom the jury found was not the actual killer:
“If you decide that any defendant is guilty of first degree
murder but was not the actual killer, then, when you consider the
special circumstance of Murder While Engaged in the
Commission of Robbery, you must also decide whether the
defendant acted either with intent to kill or with reckless
indifference to human life.
“In order to prove this special circumstance for a defendant
who is not the actual killer but who is guilty of first degree
murder as an aider and abettor, the People must prove either
that the defendant intended to kill, or the People must prove all
of the following:
“1. The defendant’s participation in the crime began before
or during the killing;
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he acted
with reckless indifference to human life.
6
“A person acts with reckless indifference to human life
when he knowingly engages in criminal activity that he knows
involves a grave risk of death.
“The People do not have to prove that the actual killer
acted with intent to kill or with reckless indifference to human
life in order for the special circumstance of Murder in the
Commission of a Robbery to be true.
“If you decide that any defendant is guilty of first degree
murder, but you cannot agree whether the defendant was the
actual killer, then, in order to find this special circumstance true,
you must either find that the defendant acted with intent to kill
or you must find that the defendant acted with reckless
indifference to human life and was a major participant in the
crime.
“If the defendant was not the actual killer, then the People
have the burden of proving beyond a reasonable doubt that he
acted with either the intent to kill or with reckless indifference to
human life and was a major participant in the crime for the
special circumstance of Murder While Engaged in the
Commission of a Robbery to be true. If the People have not met
this burden, you must find this special circumstance has not been
proved true for that defendant.” (Italics added.)
Using CALCRIM No. 736, the trial court instructed the
jury as follows on the gang-murder special circumstance:
“The defendants are charged, in connection with Counts
One, Two, and Three, with the Special Circumstance of
Committing Murder While An Active Participant In A Criminal
Street Gang in violation of Penal Code section 190.2(a)(22).
“To prove that this special circumstance is true, the People
must prove that:
7
“1. The defendant intentionally killed Andrew Williams
(Count One), Ronald Carter (Count Two), and S[i]necia Miller
(Count Three);
“2. At the time of the killing, the defendant was an active
participant in a criminal street gang;
“3. The defendant knew that members of the gang engaged
in or have engaged in a pattern of criminal gang activity;
“AND
“4. The murder was carried out to further the activities of
the criminal street gang.
“Active participation means involvement with a criminal
street gang in a way that is more than passive or in name only.
“The People do not have to prove that the defendant
devoted all or a substantial part of his time or effort to the gang,
or that he was an actual member of the gang.
“A criminal street gang is defined in another instruction,
namely instruction number 1401, to which you should refer.”
The trial court did not explain to the jury how to make a
determination on this special circumstance if the jury found the
defendant was not the actual killer like the court did when it
instructed the jury on the felony-murder special circumstance.
3. Verdicts and sentence
The jury found Robles guilty of three counts of first degree
murder as well as the robbery of Kemp (the man Jose confronted
outside Williams’s apartment). As to the murders, the jury made
true findings against Robles on the three special circumstances:
multiple murders (§ 190.2, subd. (a)(3)); felony murder (§ 190.2,
subd. (a)(17)); and gang murder (§ 190.2, subd. (a)(22)). The
felony-murder special circumstance findings state, as to each
count of murder: “We further find the allegation that the murder
8
of [the victim] was committed by the defendant JESSE ROBLES,
while the defendant was engaged in the commission of the crime
of robbery in violation of Penal Code Section 211 and 212.5,
within the meaning of Penal Code Section 190.2(a)(17) to be
true.” The gang-murder special circumstance findings state, as to
each count of murder: “We further find the allegation that the
defendants intentionally killed [the victim] while the defendants
were active participants in a criminal street gang as defined in
subsection (f) of Penal Code Section 186.22 and the murder was
carried out to further the activities of the criminal street gang
within the meaning of Penal Code section 190.2(a)(22) to be true.”
The jury also made true findings against Robles as to each
murder count that a principal personally and intentionally
discharged a handgun which proximately caused death to [the
victim] (§ 12022.53, subd. (e)(1)), and as to all counts that the
offenses were committed for the benefit of, at the direction of, or
in association with a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C). The jury also found Hector
and Jose guilty of these offenses with true findings on the special
allegations.
The trial court sentenced Robles (and Jose) to three
consecutive terms of life without the possibility of parole for the
three first-degree, special-circumstance murders, plus 25 years to
life on each of the murder counts for the firearm enhancement.3
The court also sentenced Robles (and Jose) to a consecutive term
3Hector’s case was tried as a capital case, and during the
penalty phase, the jury was unable to reach consensus as to his
punishment.
9
of three years for the robbery of Kemp, plus 10 years for the gang
enhancement.4
4. Direct appeal
Jose and Robles appealed from their judgments of
conviction, raising contentions not germane to the matter before
us. We modified the judgments to reflect Jose’s and Robles’s joint
and several liability for victim restitution, and as to Robles, to
reflect the correct statutory provision for the firearm
enhancement (§ 12022.53, subd. (e)(1)). As so modified, we
affirmed the judgments. (Prieto, supra, B233309, p. 42.)
II. Robles’s Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 “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.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added section
1170.95, now renumbered section 1172.6, which established a
procedure for vacating murder convictions and resentencing
defendants who could no longer be convicted of murder in light of
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
4For the robbery of Kemp, the trial court sentenced Jose to
an additional, consecutive 10-year term for his personal use of a
handgun.
10
On July 30, 2020, Robles filed a form petition for
resentencing under former section 1170.95, now section 1172.6.
In the petition, he checked boxes stating, in pertinent part, he
was convicted of first degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine,
and he could not now be convicted of that crime because of
changes to sections 188 and 189, effective January 1, 2019. More
specifically, he checked boxes stating he “was not the actual
killer”; he “did not, 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”; and he “was not a
major participant in the felony or [he] did not act with reckless
indifference to human life during the course of the crime or
felony.” (Bold and underlining omitted.) He also checked the box
requesting the trial court appoint counsel to represent him in
connection with his petition. On or around August 6, 2020,
Robles’s trial counsel contacted the court and stated he would be
representing Robles in the trial court in connection with this
petition.
The district attorney filed a response to Robles’s petition.
Therein, the district attorney asserted, “in finding the active
participant in a street gang and felony murder special
circumstances true, the jury found [Robles] was a major
participant in the robbery who acted with reckless indifference to
human life, and directly aided and abetted the murder with
intent to kill . . . . (§ 190.2, subd[s]., (a)(17), (22).)” Regarding the
gang-murder special circumstance (§ 190.2. subd. (a)(22)), the
district attorney asserted, the “jury was properly instructed that
it must find that [Robles] acted with the intent to kill in order to
find the active participant special circumstance true. Thus, in
11
finding the special circumstance true, the jury found that he
acted with intent to kill.” Based on these assertions, the district
attorney argued Robles could still be convicted of first degree
murder under sections 188 and 189, and he could not make a
prima facie showing that he is entitled to relief. The district
attorney attached to the response the opinion in Robles’s and
Jose’s direct appeal, the jury’s verdicts against Robles, and the
jury instructions given during the guilt phase of the trial.5
Robles’s trial counsel filed a reply brief on Robles’s behalf.
Therein, counsel argued Robles made a prima facie showing he is
entitled to relief, and therefore he is entitled to an evidentiary
hearing under section 1172.6, subdivision (d). Counsel asserted
the trial court could not determine Robles is ineligible for relief
based on the felony-murder special circumstance “without
weighing the evidence, which is forbidden” at the prima facie
stage of the proceedings. Regarding the gang-murder special
circumstance, counsel argued the district attorney did not cite
case law indicating the finding rendered Robles ineligible for
resentencing under section 1172.6 as a matter of law.
On November 17, 2020, without hearing oral argument
from the parties, the trial court issued an order summarily
denying Robles’s petition “for the following reasons: (1) [Robles,]
who was convicted of first degree murder with a felony murder
special circumstance which required a jury finding he was a
major participant who acted with reckless disregard for human
life, as a matter of law, is not eligible for resentencing under
[former] section 1170.95 [now renumbered as section 1172.6], and
5 As set forth above, Hector had a penalty phase because
his case was tried as a capital case.
12
(2) a petition for a writ of habeas corpus is the proper vehicle to
challenge the special circumstance findings.” The court
acknowledged in its order the split of authority among Courts of
Appeal at that time regarding whether a pre-Banks and Clark6
felony-murder special circumstance finding rendered a petitioner
ineligible for relief under section 1172.6 as a matter of law. The
court did not specifically address in its order the effect of the
gang-murder special circumstance finding on Robles’s eligibility
for relief. The court attached to its order the opinion in Robles’s
and Jose’s direct appeal, the jury’s verdicts against Robles, and
the jury instructions given during the guilt phase of the trial.
DISCUSSION
Robles contends he made a prima facie showing he is
entitled to relief under section 1172.6, subdivision (c), and the
matter must be remanded for the trial court to issue an order to
show cause and hold a hearing under section 1172.6, subdivision
(d). For the reasons explained below, we agree.
I. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime . . . may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder . . . conviction vacated
and to be resentenced on any remaining counts when all of the
6 People v. Banks (2015) 61 Cal.4th 788, clarifying the
meaning of the major participant element of the felony-murder
special circumstance; People v. Clark (2016) 63 Cal.4th 522,
clarifying the meaning of the reckless indifference to human life
element of the felony-murder circumstance.
13
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime . . . . [¶] (2) The petitioner
was convicted of murder . . . following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could have been
convicted of murder. . . . [¶] (3) The petitioner could not
presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.”
Senate Bill No. 1437 added the following provision to
section 188: “Except 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.”
(§ 188, subd. (a)(3).) The effect of this amendment was to
“eliminate[ ] natural and probable consequences liability for first
and second degree murder.” (People v. Gentile (2020) 10 Cal.5th
830, 849 (Gentile).) Senate Bill No. 1437 also added subdivision
(e) to section 189, limiting felony murder liability to a person who
was the actual killer, acted with the intent to kill, or was a major
participant in the underlying felony and acted with reckless
indifference to human life. (Gentile, at p. 842.)
When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
14
showing for relief. (§ 1172.6, subds. (b)-(c).)7 As our Supreme
Court explained: “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether
a petitioner has made a prima facie case for section [1172.6]
relief, the prima facie inquiry under subdivision (c) is limited.
Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final
step in the process is a hearing to determine if the petitioner is
entitled to relief, where the trial court must vacate the
petitioner’s murder conviction and resentence him or her on any
remaining counts unless the prosecution can “prove, beyond a
reasonable doubt, that the petitioner is guilty of murder . . .
7 We note that at the time Robles filed his petition in July
2020, former section 1170.95, subdivision (c) did not require a
hearing at the prima facie stage of the proceedings, and the trial
court did not hold one in this case. We cite to and quote from the
current version of 1172.6. Any amendments to the statute since
Robles filed his petition are not material to Robles’s contentions
on appeal or our analysis of same.
15
under California law as amended by the changes to Section 188
or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Robles Made a Prima Facie Showing He Is Entitled
to Relief
It is undisputed here that Robles filed a facially sufficient
petition under section 1172.6, subdivision (b). The question is
whether he made a prima facie showing he is entitled to relief
under section 1172.6, subdivision (c).
The trial court did not instruct the jury in this case on the
natural and probable consequences doctrine, but it did instruct
the jury on felony murder. And, as set forth above, the jury
returned true findings on the felony-murder special circumstance
allegations. In People v. Strong (2022) 13 Cal.5th 698, 703
(Strong), decided after the trial court denied Robles’s petition, our
Supreme Court held felony-murder special circumstance findings
made before the Supreme Court’s decisions in Banks and Clark—
like the felony-murder special circumstance findings against
Robles—do not preclude a defendant from making a prima facie
showing of eligibility for relief under section 1172.6. A court, in
evaluating whether a defendant has made a prima facie case,
may not “independently examine[] the record and determine[],
applying the Banks and Clark standards, that sufficient evidence
supports the earlier findings.” (Strong, at pp. 719, 720.) Thus, to
the extent Robles’s jury found him guilty of first degree murder
on a theory of felony murder, he has made a prima facie showing
he is entitled to relief under section 1172.6, subdivision (c), and
we must remand the matter for the trial court to issue an order to
show cause and hold a hearing under subdivision (d).
The trial court also instructed the jury on the theory that
Robles directly aided and abetted the murders. In the
16
respondent’s brief on appeal, the Attorney General argues the
jury’s true findings on the gang-murder special circumstance
allegations demonstrate the jury found Robles directly aided and
abetted the murders—a currently-valid theory of murder not
affected by Senate Bill No. 1437—and therefore Robles is
ineligible for relief as a matter of law. For the reasons explained
below, we disagree.
In Strong, the Supreme Court indicated “a special
circumstance finding that requires proof of intent to kill” “might
ordinarily be dispositive” and disqualify a defendant from relief
under section 1172.6. (Strong, supra, 13 Cal.5th at p. 715.) As
examples, the Supreme Court referenced the special
circumstances defined in section 190.2, subdivision (a)(1), (7)-(13),
(15)-(16), and (18)-(21); it did not cite the gang-murder special
circumstance at issue here, set forth in section 190.2, subdivision
(a)(22). (Strong, at p. 715.) As the Attorney General points out,
in People v. Allison (2020) 55 Cal.App.5th 449, 460, disapproved
on another ground in Strong, at page 718, footnote 3, we noted,
without expressly deciding in that case, that a gang-murder
special circumstance finding under section 190.2, subdivision
(a)(22) would ordinarily preclude a defendant from making a
prima facie showing of eligibility for relief under section 1172.6
because the special circumstance “require[s] that the defendant
intentionally killed the victim.”
Section 190.2 provides that a gang-murder special
circumstance finding may be made against a defendant who is
“not the actual killer” but “who, with the intent to kill, aids,
abets, counsels, commands, induces, solicits, requests, or assists
any actor in the commission of murder in the first degree.”
17
(§ 190.2, subd. (c).) In the present case, however, based on the
wording of the jury instructions given and the jury’s verdicts
against Robles, we cannot conclude the jury found Robles directly
aided and abetted the murders with intent to kill,
notwithstanding the jury’s true findings on the gang-murder
special circumstance allegations.
While the trial court’s jury instructions informed the jury it
must consider each special circumstance separately for each
defendant, the gang-murder special circumstance instruction
(quoted above) did not explain to jurors that if they found a
defendant was not the actual killer, they had to find that
defendant personally acted with intent to kill in order to render a
true finding on the gang-murder special circumstance. The
felony-murder special circumstance instructions, in contrast, did
specifically explain to the jury how to evaluate the felony-murder
special circumstance if they found a defendant was not the actual
killer: “If the defendant was not the actual killer, then the
People have the burden of proving beyond a reasonable doubt
that he acted with either the intent to kill or with reckless
indifference to human life and was a major participant in the
crime for the special circumstance of Murder While Engaged in
the Commission of a Robbery to be true. If the People have not
met this burden, you must find this special circumstance has not
been proved true for that defendant.” (Italics added.) The jury
was given no similar language with respect to the gang-murder
special circumstance.
As set forth above, the jury was instructed the prosecution
had to prove four elements to prove the gang-murder special
circumstance:
18
“1. The defendant intentionally killed Andrew Williams
(Count One), Ronald Carter (Count Two), and S[i]necia Miller
(Count Three);
“2. At the time of the killing, the defendant was an active
participant in a criminal street gang;
“3. The defendant knew that members of the gang engaged
in or have engaged in a pattern of criminal gang activity;
“AND
“4. The murder was carried out to further the activities of
the criminal street gang.”
It was undisputed at trial that Robles did not actually kill
anyone. Thus, it is plausible the jury understood this instruction
to mean it could return a true finding on the gang-murder special
circumstance as to Robles if it found beyond a reasonable doubt
that Hector “intentionally killed” the victims (and the other
elements of the special circumstance were satisfied).
To be clear, the issue on appeal is not whether there was
instructional error, and we reach no conclusion in that regard.
Rather, we hold Robles’s record of conviction does not show he is
ineligible for resentencing under section 1172.6 as a matter of
law because the record does not show the jury found him guilty of
first degree murder under a still-valid theory of murder: i.e., that
he directly aided and abetted the murder with intent to kill.
Accordingly, we reverse the order denying his petition for
resentencing and remand the matter for the trial court to issue
an order to show cause under section 1172.6, subdivision (c) and
hold a hearing under subdivision (d).
DISPOSITION
The order denying the petition for resentencing is reversed
and the matter is remanded. Upon remand, the superior court
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shall issue an order to show cause pursuant to section 1172.6,
subdivision (c) and hold a hearing under section 1172.6,
subdivision (d).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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