Filed 1/31/24 P. v. Roberts CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHAWN MARQUES ROBERTS,

Defendant and Appellant.

F085761

(Super. Ct. No. BF154248A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. John W. Lua, 

Judge.

James S. Thomson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Meehan, J.
2.

INTRODUCTION

In 2015, appellant and defendant Deshawn Marques Roberts (defendant) was 

convicted after a jury trial of premeditated attempted murder and sentenced to life with 

the possibility of parole, plus 25 years to life for a firearm enhancement. The judgment 

was affirmed on direct appeal.

In 2022, defendant filed a petition for resentencing pursuant to Penal Code1

section 1170.952(now renumbered as § 1172.6). The trial court found he stated a prima 

facie case and issued an order to show cause. In 2023, the court conducted an evidentiary 

hearing, the parties submitted the matter on the trial transcript, and the court held the 

prosecution proved beyond a reasonable doubt that defendant still could be convicted of 

premeditated attempted murder after the amendments to sections 188 and 189.

On appeal, appellate counsel filed a brief that summarized the facts and procedural 

history with citations to the record, raised no issues, and asked this court to independently 

review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People

v. Wende (1979) 25 Cal.3d 436. Defendant submitted a letter brief in response. We 

review his arguments and affirm the trial court’s denial of his petition.

FACTS3

“On the evening of April 2, 2014, a member of the Country Boy Crip criminal 

street gang was wounded in a drive-by shooting that took place in front of a market that 

was a well-known hangout of the gang. A witness described the vehicle from which the 

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with 

no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 

in this opinion.

3 After notice to the parties and without objection, we take judicial notice of the 

records and nonpublished opinions in defendant’s prior direct appeals, People v. Roberts

(Jan. 4, 2018, F071777) and People v. Roberts (July 22, 2019, F077442 (Roberts II)), 

from which the following facts are taken.
3.

shots were fired as a gray or silver Chevrolet Impala. Store video showed a silver vehicle 

drive by and turn the corner. Two minutes later, the car drove past again, the shooting 

occurred, and the car sped off. Three spent Winchester brand .40-caliber Smith and 

Wesson shell casings were found in the roadway adjacent to the victim’s location when 

he was shot. 

“The next day, police located the vehicle, which was being driven by defendant 

and which had been rented by his girlfriend. Two spent Winchester brand .40-caliber 

Smith and Wesson shell casings were found in the car. They and the three spent casings 

found at the scene of the shooting were determined to have been fired from the same gun. 

“Under questioning by detectives, defendant first denied being involved in the 

shooting and said his vehicle was not there. He subsequently said his cousin, 

Marlon Burch, asked to use the car. Defendant was reluctant to give permission, but 

Burch grabbed the keys and left. Someone defendant knew as ‘Maniac’ got in the car 

with Burch. When Burch returned, he told defendant what had happened. Burch said he 

was the shooter, and that he went to a store in ‘the country’ and was aiming for ‘anybody 

that was out there.’ Eventually, defendant admitted he was the driver. He took Burch to 

where Burch got the gun, then Burch told him to go to the market. Once there, Burch 

fired several times. Defendant and Burch discussed what was going to happen before 

they went. Defendant ‘just gave in’ when Burch wanted to go do the shooting. 

“At trial, defendant testified that Burch had taken defendant’s car keys without 

defendant’s permission, and that defendant did not know about the shooting until after it 

happened. In the portion of his interview with detectives that was video recorded, he 

admitted being the driver because he thought this was part of a plan hashed out off 

camera whereby defendant would involve himself as an eyewitness so police could arrest 

Burch, and defendant would be cited and released for being an unlicensed driver, a 

misdemeanor.” (Roberts II, supra, F077442.)
4.

PROCEDURAL BACKGROUND

On May 4, 2015, after a jury trial, defendant was convicted of count 1, 

premeditated attempted murder (§§ 664, 187, subd. (a), 189), with an enhancement that a 

principal intentionally and personally discharged a firearm proximately causing great 

bodily injury (§ 12022.53, subds. (d) & (e)(1)), and a gang enhancement (§ 186.22, 

subd. (b)(1)); count 2, permitting the discharge of a firearm from a vehicle that he owned 

or drove (§ 26100, subd. (b)), with the gang enhancement; count 3, felon in possession of 

a firearm (§ 29800, subd. (a)(1)), with the gang enhancement; count 4, carrying a 

concealable firearm in a vehicle while an active participant in a criminal street gang 

(§ 25400, subd. (c)(3)), and count 5, active participant in a criminal street gang (§ 186.22, 

subd. (a)). 

On June 2, 2015, defendant was sentenced to life with the possibility of parole 

with a minimum parole eligibility date of seven years for count 1, with a consecutive 

term of 25 years to life for the firearm enhancement. The court stayed the terms for the 

remaining convictions and enhancements. 

Direct Appeal

In January 2018, this court filed the nonpublished opinion in defendant’s direct 

appeal, People v. Roberts, supra, F071777, which affirmed the judgment but remanded 

the matter to the trial court to determine whether to exercise its discretion to dismiss the 

firearm enhancement pursuant to section 12022.53, subdivision (h), as amended after his 

conviction by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if 

appropriate following exercise of that discretion, to resentence defendant.

Remand for Resentencing

At the hearing on remand, the trial court heard arguments from both parties as to 

whether to dismiss the section 12022.53, subdivision (d) enhancement that carried a 

consecutive term of 25 years to life. The court declined to exercise its discretion.
5.

“The court stated that exercising its discretion whether to dismiss the 

firearm enhancement in the interest of justice meant it had to decide 

‘whether this is a just sentence for this particular crime such that the 

sentence previously imposed should stand or not.’ It found the fact 

defendant was not the actual shooter something that arguably could be 

considered in defendant’s favor. It acknowledged the victim did not die, 

although it did not give that fact much weight in mitigation, because at 

issue was the act of attempting to kill someone. In addition, the act in this 

case was found to have been committed with premeditation and 

deliberation, which, the court concluded, was supported by the evidence, 

particularly defendant’s statement to detectives that he knew what he and 

Burch were going to do and he involved himself in the situation. Thus, the 

court found, there was some planning and preparation. The court did not 

recall there being a stop sign or stop light that defendant obeyed and that 

was when the shooting occurred; rather, the car drove by once before the 

shooting. With respect to defendant, the court found he had a minimal 

record at the time of the offense, with a juvenile offense for misdemeanor 

second degree burglary, then a felony drug conviction in 2008 for what now 

would be a misdemeanor. The court also observed defendant was 26 years 

old and a high school graduate. The court found those facts to be favorable 

to defendant.

“The court then stated:

“ ‘I guess what I’m struggling with the most ... is whether or not 

actually [defendant] played a lesser or minor role in this particular incident. 

And I’m struggling with that idea in this particular case because ultimately 

this was going to be a drive-by shooting.

“ ‘Two people got together and this was what the plan was to go out 

and just shoot somebody for ... apparently no other reason than a 

gang-related reason, ... someone not belonging to the same gang. So 

drive-by shootings are ... just horrible in the sense that people get killed. 

And a lot of times innocent people get killed that weren’t even the intended 

amongst the target pool ... of other gang members or whatever people that 

are just there get shot and get killed because of the nature of what a 

drive-by shooting is, which is essentially drive up on suspected people and 

start shooting, see who you could kill or hit somebody. So they are horrific 

crimes that have horrible, horrible results and that people get killed. I think 

most of the time ... there is no reason for them whatsoever than some sort 

of gang-related reason, which is certainly not anything that would be 

mitigating .... But I do understand what takes place, and I think that was 
6.

the motive here was the gang activity between the two gangs—the Eastside 

Crips and the ... Country Boy Crips.

“ ‘So you can’t have a drive-by shooting without a driver; a lot of 

times it is the same person. But when it is not the same person, essentially 

they’re acting as one for purposes of committing the crime, and essentially 

that is what happened here. He’s driving the car. He’s driving it for the 

sole purpose of allowing somebody else to shoot willy nilly out at people 

and with obviously a likelihood somebody would get hit and somebody got 

killed, which is certainly what happened in this place; somebody was 

struck, and he didn’t die. But it is a horrific, horrific crime which can only 

be accomplished ... with a gun. The enhancement is designed to punish the 

crimes that are committed with firearms or [sic] severely then [sic] the 

crime itself. And in this case, based on the totality of the circumstances of 

the offense, [defendant’s] participation, which obviously was necessary to 

accomplish the crime and knowledge of what was going to take place, I 

simply don’t find that this would be a case where it would be appropriate 

for me to exercise my discretion and strike the enhancement.

“ ‘Consequently, in exercising my discretion, I’m deciding not to 

strike or dismiss the enhancement. The sentence previously imposed as to 

all the counts will stand. There will be no resentencing as a result of this 

[c]ourt’s decision at this time.’ ” (Roberts II, supra, F077442.)

Appeal after Resentencing

Defendant filed an appeal from the trial court’s decision not to dismiss the 

section 12022.53, subdivision (d) firearm enhancement, and argued the court abused its 

discretion. In 2019, this court filed the nonpublished opinion that held defendant’s 

“selective quotations” from the record failed to demonstrate an abuse of discretion. 

“Defendant fails to persuade us that the trial court did not consider all relevant factors in 

reaching its decision. Rather, he simply presents information and argument from which a 

different conclusion reasonably could be drawn. That reasonable people might disagree 

or reach a conclusion contrary to that of the lower court does not mean that court abused 

its discretion. Because that court’s ruling is neither arbitrary nor unreasonable, defendant 

is not entitled to a reversal.” (Roberts II, supra, F077442.) 
7.

DEFENDANT’S PETITION FOR RESENTENCING

On February 22, 2022, defendant filed, in propria persona, a petition for 

resentencing pursuant to section 1172.6 and requested appointment of counsel. His 

supporting declaration consisted of a preprinted form where he checked boxes that stated 

(1) a complaint, information, or indictment was filed against him 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, or attempted murder under 

the natural and probable consequences doctrine; (2) he was convicted of murder, 

attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a 

trial at which he could have been convicted of murder or attempted murder; and (3) he 

could not presently be convicted of murder or attempted murder because of changes 

made to sections 188 and 189, effective January 1, 2019. By interlineation, he circled the 

words “attempted murder” where they appeared in the preprinted declaration. 

The court appointed counsel and set a briefing schedule. 

On June 30, 2022, the People filed an opposition to the petition, and argued 

defendant was ineligible for resentencing because the instructions showed he was 

convicted based on his own intent to kill. The People requested the court take judicial 

notice of the nonpublished opinion from defendant’s prior appeal (Roberts II, supra, 

F077442), and the entirety of the record from his jury trial. On August 19, 2022, 

defendant’s counsel filed a reply. 

Order to Show Cause

On October 24, 2022, the court found defendant’s petition stated a prima facie 

case that he was entitled to resentencing, issued an order to show cause, set an 

evidentiary hearing, and provided for further briefing. 

On February 3, 2023, defendant’s counsel filed a hearing brief and argued the 

evidence showed he may have driven Burch to the location without sharing or knowing 
8.

his intent to kill, and the jury could have convicted him of attempted murder based on an 

imputed malice theory. The People did not file a hearing brief. 

The Evidentiary Hearing

On February 10, 2023, the court held the evidentiary hearing. Defendant’s counsel 

submitted the matter on his brief. The court asked the prosecutor if he filed opposition or 

would respond. The prosecutor moved to introduce the trial transcript into the 

evidentiary hearing, and argued section 1172.6 permitted the court to rely on that 

transcript and defendant had to raise objections if he wanted to exclude any testimony. 

Defendant’s counsel acknowledged the trial transcript was admissible at the evidentiary 

hearing, but argued the victim failed to identify defendant as being in the car during the 

shooting. 

The court granted the prosecutor’s motion to admit the entirety of the transcript 

from defendant’s jury trial. The prosecutor stated he did not intend to introduce any 

additional evidence and rested. Defendant’s counsel also rested. 

The Court’s Denial of the Petition

After hearing the parties’ arguments, the court made lengthy findings and denied 

the petition. The court stated the facts from the trial were that “defendant admitted he 

was the driver; that he took Burch to where Burch got the gun, then Burch told him to go 

to the market. Once there, Burch fired several times. [Defendant] and Burch discussed 

what was going to happen before they went, ostensibly the shooting in particular.” The 

court noted that defendant was not the actual shooter, and the People relied on an aiding 

and abetting theory, where the jury was instructed to determine “whether the defendant 

intended to aid and abet the perpetrator in committing the crime, shooting at persons in a 

specified location.” The People also relied on an uncharged conspiracy theory, “where 

the jury was instructed to determine whether the defendant intended to agree and did 

agree with Marlon Burch to commit murder.” 
9.

The court stated the People had the burden at the evidentiary hearing to “prove 

beyond a reasonable doubt that [defendant] is guilty of attempted murder under current 

California law, including the amendments to ... [s]ections 188 and 189, which became 

effective on January [1], 2019.” 

“Based on the evidence presented during this hearing, this [c]ourt finds that the 

People have proven that [defendant] is guilty of attempted murder with deliberation and 

premeditation under the current law. [¶] Based on review of the jury instructions, the 

verdict forms, and transcripts from the trial, it is apparent to this [c]ourt that the 

[defendant] acted with an intent to kill when he aided and abetted Burch in committing 

the drive-by shooting that resulted in inflicting injury to a person. [¶] For this reason, 

this [c]ourt finds the [defendant] is ineligible for resentencing, and the conviction will 

stand.” 

On February 14, 2023, defendant filed a notice of appeal. 

DISCUSSION

As explained above, appellate counsel filed a brief with this court pursuant to 

Wende and Delgadillo. The brief included counsel’s declaration that defendant was 

advised he could file his own brief with this court. This court also advised defendant that 

he could file a supplemental letter brief. Defendant filed a letter brief and raises the 

following arguments.

I. Defendant’s Contentions about his Trial and Sentence

Defendant requests this court to review the following issues: to “look into the 

actual shooter,” Burch, who was not questioned or charged with premeditated attempted 

murder; the evidence would show that Burch was the principal and not defendant; 

defendant was unfairly in prison for a crime committed by Burch; and the victim said he 

could identify the shooter but he was never shown a photographic lineup with Burch. 

Defendant also requests this court to “review” his three interviews with the investigating 

officers. 
10.

Defendant’s contentions are based on his jury trial and conviction, and are not 

cognizable in this appeal. “The mere filing of a section [1172.6] petition does not afford 

the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of 

the evidence supporting the jury’s findings. To the contrary, ‘[n]othing in the language of 

section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior 

factfinding .... The purpose of section [1172.6] is to give defendants the benefit of 

amended sections 188 and 189 with respect to issues not previously determined, not to 

provide a do-over on factual disputes that have already been resolved.’ ” (People v.

Farfan (2021) 71 Cal.App.5th 942, 947; People v. DeHuff (2021) 63 Cal.App.5th 428, 

438.)

Next, defendant asks this court “to look into my sentence” of seven years to life 

plus 25 years to life. As set forth above, this court previously remanded the matter for the 

trial court to determine whether to dismiss the section 12022.53, subdivision (d) 

enhancement. The trial court declined to do so, we found the court did not abuse its 

discretion, that judgment is final, and the court’s ruling at the resentencing hearing on 

remand similarly is not cognizable in this appeal from the denial of defendant’s section 

1172.6 petition.

Defendant also asks this court to address whether “there is any way I can [be] 

[resentenced] under [section] 1170.D [sic].” Defendant is presumably referring to section 

1170, subdivision (d)(1)(A), which provides that a person who was under the age of 

18 years at the time of the commission of an offense “for which the defendant was 

sentenced to imprisonment for life without the possibility of parole” and “has been 

incarcerated for at least 15 years,” may submit “to the sentencing court a petition for 

recall and resentencing,” where, under certain circumstances, the court may resentence 

the defendant. (§ 1170, subd. (d)(2), (6).)
11.

Defendant did not file a petition under section 1170, subdivision (d) and he is not 

within its provisions because he was sentenced to life with the possibility of parole, and 

not life without the possibility of parole.

II. The Trial Court’s Denial of Defendant’s Petition.

Defendant’s letter brief also requests this court independently review the denial of 

his petition for resentencing.

A. The Court’s Determination at an Evidentiary Hearing.

As relevant to this case, section 1172.6, subdivision (a) states that a person 

convicted of “attempted murder under the natural and probable consequences doctrine” 

may file a petition with the court that sentenced the petitioner to have the petitioner’s 

attempted murder conviction vacated and to be resentenced, where the petitioner “could 

not presently be convicted of murder or attempted murder because of changes to 

[s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)

“Once a petitioner establishes a prima facie case for relief and the superior court 

issues an order to show cause, the matter proceeds to an evidentiary hearing at which it is 

the prosecution’s burden to prove beyond a reasonable doubt that the petitioner is 

ineligible for resentencing. [Citations.] If the superior court finds beyond a reasonable 

doubt that the petitioner is guilty of murder [or attempted murder] notwithstanding the 

amendments to sections 188 and 189, the petitioner is ineligible for relief under 

section 1172.6.” (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).)

“At the hearing to determine whether the petitioner is entitled to relief, ... [t]he 

admission of evidence in the hearing shall be governed by the Evidence Code, except that 

the court may consider evidence previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, stipulated evidence, and 

matters judicially noticed. The court may also consider the procedural history of the case 

recited in any prior appellate opinion. However, hearsay evidence that was admitted in a 

preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from 
12.

the hearing as hearsay, unless the evidence is admissible pursuant to another exception to 

the hearsay rule. The prosecutor and the petitioner may also offer new or additional 

evidence to meet their respective burdens.” (§ 1172.6, subd. (d)(3).)

At the evidentiary hearing, the trial court may make factual findings and 

credibility determinations, and weigh evidence. (People v. Harden (2022) 

81 Cal.App.5th 45, 51.) “Although the parties may offer new or additional evidence to 

meet their respective burdens, section 1172.6, subdivision (d)(3) does not contemplate a 

whole new trial on all the elements of murder. [Citation.] Rather, ‘[t]he retroactive relief 

provided by [section 1172.6] is a legislative “act of lenity” intended to give defendants 

serving otherwise final sentences the benefit of ameliorative changes to applicable 

criminal laws and does not result in a new trial or increased punishment.’ [Citations.] 

Thus, the focus at the evidentiary hearing phase of an 1172.6 petition is ‘on evidence 

made relevant by the amendments to the substantive definition of murder,’ which, in the 

context of section 188, requires ‘the prosecution to prove that all principals to a murder 

[or attempted murder] acted with malice aforethought.’ ” (Vargas, supra,

84 Cal.App.5th at p. 952.)

“While the superior court acts as an independent fact finder in determining 

whether the People have met their burden, on appeal, the reviewing court applies the 

substantial evidence standard to the superior court’s findings. [Citation.] Under this 

familiar standard, ‘ “we review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

[Citation.] In so doing, a reviewing court “presumes in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence.” ’ 
13.

[Citations.] Substantial evidence also ‘ “includes circumstantial evidence and any 

reasonable inferences drawn from that evidence.” ’ ” (Vargas, supra, 84 Cal.App.5th at 

p. 951.)

“In conducting our substantial evidence review, we begin with the presumption 

that the evidence was sufficient to support the trial court’s ruling. ‘Before setting aside 

the judgment of the trial court for insufficiency of the evidence, it must clearly appear 

that there was no hypothesis whatever upon which there was substantial evidence to 

support the verdict.’ ” (Vargas, supra, 84 Cal.App.5th at p. 952.) “We must accept 

factual inferences in favor of the trial court’s ruling. [Citation.] Where [a defendant] 

urges contrary and conflicting inferences, then, we must reject them.” (People v. Mitchell

(2022) 81 Cal.App.5th 575, 591.)

B. Analysis

The trial court’s determination at the evidentiary hearing, that defendant could be 

convicted of premeditated attempted murder beyond a reasonable doubt under the 

amended statutes, is supported by substantial evidence. In making this determination, the 

court stated that it relied upon the transcript of defendant’s jury trial, which was 

admissible under section 1172.6, subdivision (d)(3). In his pretrial interview, defendant 

initially claimed he was not in the car during the shooting, but later admitted he was 

driving the car, took Burch to the location where Burch got the gun, and then followed 

Burch’s directions to drive to the market, where Burch fired multiple rounds. Defendant 

admitted that he discussed with Burch what was going to happen before they went. 

While defendant offered a different story at trial, there is substantial evidence to support 

the court’s determination that defendant acted as a direct aider and abettor who acted with 

the intent to kill when he helped Burch procure the weapon and drove the vehicle during 

the drive-by shooting.
14.

DISPOSITION

The court’s order of February 10, 2023, finding beyond a reasonable doubt that 

defendant was a direct aider and abettor of premeditated attempted murder, is supported 

by substantial evidence, and his petition was properly denied.