Filed 9/26/24 P. v. Roberts CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTONIO ROBERTS,

Defendant and Appellant.

B328834

(Los Angeles County

Super. Ct. No. MA007808)

APPEAL from an order of the Superior Court of Los 

Angeles County, Robert G. Chu, Judge. Affirmed.

John Lanahan, 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, Stephanie C. Brenan and Gabriel Bradley, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

In 1996, a jury convicted Antonio Roberts of special 

circumstance first degree murder and of second degree robbery. 

Years later, he petitioned for resentencing under Penal Code1

section 1172.6, which limited accomplice liability for murder. 

The trial court denied the petition without holding an evidentiary 

hearing, finding that based on the jury’s true finding on the 

special circumstance allegation, Roberts was convicted as either 

the actual killer or as a direct aider and abettor with the intent to 

kill. Roberts appeals, contending that the special circumstance 

finding does not render him ineligible for relief as a matter of 

law. We disagree and affirm the order.

BACKGROUND

I. The felony complaint and evidence at trial2

A felony complaint charged Roberts with the special 

circumstance murder of Sung Hee Hwang (§§ 187, subd. (a), 

190.2, subd. (a)(17) [murder committed during robbery]; count 1) 

and with second degree robbery (§ 211; count 2). Two of Roberts’s 

1 All further statutory references are to the Penal Code.

Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

2 We grant Roberts’s request for judicial notice of the 

appellate record in the case on direct appeal, People v. Roberts 

(July 1, 1998, B110600) [nonpub. opn.]. (Evid. Code, § 452, 

subd. (d); see People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis) 

[appellate opinion generally part of record of conviction in 

§ 1172.6 proceedings].) To the extent we rely on the opinion in

Roberts’s prior appeal, we do so solely for procedural facts. 

(§ 1172.6, subd. (d)(3).)
3

accomplices, Tyrran Wilson3 and Walter Johnson, testified 

against him at trial. A third accomplice, Damian Hunter, did not 

testify. The following evidence was adduced at Roberts’s trial.

A. The robbery and murder

On the afternoon of February 18, 1994, Maria Klupp was at 

Charlie’s Jewelry Store. Hwang owned the jewelry store. While 

at the jewelry store, Klupp saw a Black man in the store and, five 

minutes later, she saw another Black man enter. One of the men 

had a “kind of wrench, like they use to open keys” in his pocket. 

Klupp went to another store in the strip mall, but she heard 

screams and somebody said the jewelry store was being robbed.

Around the time of the murder, Daniel Houfek was driving 

near Charlie’s Jewelry Store. Houfek saw three Black men

running to a car parked just north of the jewelry store. A fourth 

man was standing at the parked car. All four men got into the 

car and left. Houfek thought that one man might have had a 

gun.

Hwang was dead, having been shot three times, including 

once to the chest. Jewelry was missing.

Law enforcement recovered potato pieces and .22-caliber 

rifle shell casings from the jewelry store. Roberts’s and Hunter’s 

fingerprints were on glass display cases, and Roberts’s 

fingerprint was on broken glass from a display case.4

3 Wilson is sometimes referred to as Burrell in the record.

4 According to Hwang’s girlfriend, he cleaned the jewelry 

cases every night.
4

B. Roberts’s arrest and first statement about the crimes

Roberts was arrested. While Roberts was in a holding cell, 

a deputy sheriff overheard him tell another inmate, “ ‘We did a 

187.’ ” Roberts also said, “ ‘We went to a jewelry store’ ” and

“ ‘The dude tried to take a ring.’ ” With his right hand, Roberts 

grabbed his left finger and pantomimed pulling something off a 

ring finger. Roberts waved his hand in a downward motion, 

started to walk away, and said, “ ‘We turned around.’ ” He 

walked to the center of the cell, pushed an imaginary person to 

the ground, and kicked down. After making the kicking motion, 

Roberts raised his hands to shoulder height, extended his right 

index finger, and said “ ‘pow.’ ” Roberts made eye contact with 

the deputy sheriff and told him he was wasting his time trying to 

get him for some other robbery and should instead check the 

robbery that occurred on 10th Street across from the police 

station.

Roberts then told a detective that the day before Hwang’s 

murder, Roberts was at the jewelry store with his girlfriend to 

get a ring resized. While there, he saw Hwang “flossing money,” 

meaning counting money. Roberts went home and told his 

friends Hunter and Johnson what he had seen. His friends 

planned to rob the jewelry store and to kill Hwang. Another 

friend, Wilson, taped a potato to the end of a .22-caliber rifle as a 

silencer. The next day, Roberts was at the jewelry store again 

with his girlfriend to get a ring resized when Johnson, Wilson, 

and Hunter entered. Roberts was leaving when he saw Wilson 

shoot Hwang with the rifle. Johnson, Wilson, and Hunter ran out 
5

of the store and drove away in a grey Cutlass with a fourth man

who Roberts identified as “Bridle.”

5

With Roberts’s help, law enforcement recovered from his 

house and nearby areas .22-caliber shell casings, .22-live 

ammunition, other rifles and guns, and a potato with duct tape 

wrapped around it. Roberts said that the rifle used to kill Hwang 

had been broken into several pieces, the rifle stock burned, and 

the rifle pieces dispersed in the nearby area. He helped law 

enforcement recover those pieces. A grey Cutlass was parked at 

the house, and a potato was inside the car.

C. Roberts’s second statement about the crimes

While Roberts was released from custody and helping law 

enforcement in their case against Johnson, Wilson, and Hunter,

he told the detective that he was more involved in planning the 

robbery and murder than he had disclosed. He said that the 

initial plan was for him to have a car across the street from the 

jewelry store and to shoot Hwang with the rifle from across the 

street. But Wilson said he wanted to do it and took the rifle. 

Roberts, Wilson, and Hunter discussed putting a potato at the 

end of the rifle.

D. Other witness testimony

Roberts’s girlfriend testified that on the evening Hwang 

was killed, she was at Roberts’s house with him, Wilson, 

Johnson, and Hunter. The men were discussing Hwang’s 

murder. Roberts told her that they went inside the jewelry store 

and saw an open safe. This gave them “the idea,” and Wilson 

shot Hwang.

5 Law enforcement never identified or found “Bridle.”
6

Other witnesses, however, testified that Roberts, not 

Wilson, was the shooter. Mishelle Burrell6testified that Roberts 

told her that he killed Hwang because Hwang was uncooperative. 

Roberts also told her that he had previously robbed Hwang, but 

that this time Hwang did not do what he was told and had a golf 

club in his hand.7

Accomplices Johnson and Wilson also testified that Roberts 

was the shooter. Both Johnson and Wilson had pleaded guilty to 

robbery and agreed to testify against Roberts. Johnson testified 

that it was Roberts’s idea to rob the jewelry store while Hunter 

got his ears pierced. Johnson drove them to the jewelry store, 

and Roberts had a .22 rifle with a potato taped to it, which was 

also Roberts’s idea. Roberts and Hunter went into the store, but 

only Roberts was armed. Johnson remained in the car. Wilson 

stood by the car. When Roberts and Hunter returned to the car, 

Roberts said Hwang would not give him money, so Roberts shot 

him. Back at Roberts’s house, the men split money and jewelry 

from the store.

Wilson similarly testified that the plan was for Roberts and 

Hunter to rob the jewelry store while Wilson and Johnson acted 

as lookouts. Roberts had a .22 rifle with a potato taped to it. A 

few minutes after Roberts and Hunter went into the jewelry 

store, they ran back to the car and drove home. Wilson denied 

going into the jewelry store and shooting Hwang.

6 Accomplice Wilson is Burrell’s brother.

7

In closing argument, the prosecutor referred to a 

photograph exhibit showing a golf club near Hwang’s body.
7

II. Verdict and sentence

A jury found Roberts guilty of count 1, first degree murder 

with a special circumstance finding that he committed the 

murder while engaged in a robbery, and of count 2, second degree 

robbery. As to both counts, the jury found that Roberts

personally used a firearm, a rifle (§ 12022.5, subd. (a)). In 1996, 

the trial court sentenced Roberts on count 1 to life without parole

for the murder, five years for the firearm enhancement, and one

year for a prison prior (§ 667.5, subd. (b)). The trial court 

imposed but stayed the sentence on count 2.

A different panel of this division affirmed the judgment of 

conviction on direct appeal in People v. Roberts, supra, B110600.

III. Section 1172.6 proceedings

In 2022, Roberts petitioned for resentencing under section 

1172.6. The trial court appointed counsel for Roberts. The 

People opposed the petition on the ground that the jury was not 

instructed on the natural and probable consequences doctrine but 

was instructed with CALJIC No. 8.80.1, which required the jury 

to find that Roberts was the actual killer or intended to kill a 

human being to find the special circumstance true.

On March 6, 2023, the trial court denied the petition on the 

ground that the jury found Roberts to be the actual killer or 

intended to kill a human being when he committed the robbery.

DISCUSSION

I. Overview of Senate Bill No. 1437

To the end of ensuring a person’s sentence is commensurate 

with the person’s individual criminal culpability, Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability 
8

under the felony-murder rule, eliminated the natural and 

probable consequences doctrine as it relates to murder, and

eliminated convictions for murder based on a theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime. (See generally People v. Reyes (2023) 14 

Cal.5th 981, 986; Lewis, supra, 11 Cal.5th at pp. 957, 959; People 

v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill No. 1437 

added section 189, subdivision (e) (limiting application of the 

felony-murder rule) and section 188, subdivision (a)(3) (stating 

that “to be convicted of murder, a principal in a crime shall act 

with malice aforethought” and malice “shall not be imputed to a 

person based solely on his or her participation in a crime”). As 

amended by Senate Bill No. 775, effective January 1, 2022, these 

ameliorative changes to the law now expressly apply to 

attempted murder and voluntary manslaughter.

Senate Bill No. 1437 also created a procedure, codified at 

section 1172.6, for a person convicted of murder, attempted 

murder, or voluntary manslaughter under the former law to be 

resentenced if the person could no longer be convicted of those 

crimes under the current law. (Lewis, supra, 11 Cal.5th at 

p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A 

petitioner commences that procedure by filing a petition 

containing a declaration that, among other things, the petitioner 

could not presently be convicted of murder, attempted murder, or 

voluntary manslaughter under the current law. (People v. Strong

(2022) 13 Cal.5th 698, 708.)

At the prima facie stage, the trial court takes as true the 

petitioner’s factual allegations and assesses whether the 

petitioner would be entitled to relief if those allegations were 

proven. (Lewis, supra, 11 Cal.5th at p. 971.) In determining 
9

whether the petitioner has made a prima facie case for relief, the 

trial court may look at the record of conviction, including jury 

instructions, verdicts, and closing argument, to determine readily 

ascertainable facts such as the crime of conviction. (People v. 

Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. 

Harden (2022) 81 Cal.App.5th 45, 56.) At the prima facie stage, 

the trial court does not engage in fact finding that involves the 

weighing of evidence or exercise of discretion. (Lewis, at p. 972.) 

If a petition establishes a prima facie case for relief, the trial 

court must appoint counsel if requested, issue an order to show 

cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3), 

(c), & (d)(1).) But if at the prima facie stage the record of 

conviction establishes that the petition is meritless, the trial 

court may dismiss it. (Lewis, at p. 971.)

To deny a petition at the prima facie stage, the record of 

conviction must demonstrate the petitioner is ineligible for relief 

as a matter of law. (People v. Ervin (2021) 72 Cal.App.5th 90, 

101 (Ervin).) We review the denial of a petition at the prima 

facie stage de novo. (Ibid.)

II. The record of conviction established Roberts’s ineligibility 

for relief

Roberts contends that the trial court erred in finding that 

the special circumstance jury instruction, CALJIC No. 8.80.1, 

established he was convicted as the actual killer or a direct aider 

and abettor who had intent to kill, thereby rendering him 

ineligible for relief as a matter of law. We disagree.

As to felony murder, Roberts’s jury was instructed that an 

unlawful killing occurring during the commission or attempted 

commission of a robbery is first degree murder when the 

perpetrator had the specific intent to commit robbery. (CALJIC 
10

Nos. 8.21, 8.27.) The jury was further instructed on the special 

circumstance with CALJIC No. 8.80.1:

If you find the defendant in this case guilty of 

murder of the first degree on the theory that the 

victim was killed during the commission of a robbery, 

you must then also determine if the special 

circumstance that the alleged victim was killed 

during the commission of a robbery is true or not 

true.

The People have the burden of proving the 

truth of this alleged special circumstance. If you 

have a reasonable doubt as to whether this special 

circumstance is true, you must find it to be not true.

If you are satisfied beyond a reasonable doubt 

that the defendant actually killed a human being, 

you need not find that the defendant intended to kill 

in order to find the special circumstance true.

However, if you find that the defendant was not 

the actual killer of a human being, or you are unable 

to decide whether the defendant was either the 

actual killer or an aider and abettor, you cannot find 

the special circumstance to be true unless you are 

satisfied beyond a reasonable doubt that the 

defendant, with the intent to kill, aided, abetted, or 

assisted any actor in the commission of the murder in 

the first degree.

8

8 During the jury instruction conference, the trial court said 

it intended to include a paragraph that the special circumstance 

could also be found true if the jury found that Roberts was a 

major participant who acted with reckless indifference to human 

life. The record does not show why the jury was not instructed on 

that theory.
11

CALJIC No. 8.80.1 thus permitted the jury to find the 

special circumstance true only if it found beyond a reasonable 

doubt either that (1) Roberts was the actual killer or (2) he aided 

and abetted, with intent to kill, a first degree murder. Roberts’s 

jury found the special circumstance true; therefore, it believed 

either that he was the actual killer or a direct aider and abettor

with malice/intent to kill. (See, e.g., People v. Harden, supra, 81

Cal.App.5th at p. 55, fn. 8 [true finding based on CALJIC

No. 8.80.1 means defendant was either actual killer or had 

specific intent to kill].) Actual killers and direct aider and 

abettors who intend to kill are ineligible for section 1172.6 relief. 

(See People v. Delgadillo (2022) 14 Cal.5th 216, 233 [actual killer 

and sole participant in crime ineligible for § 1172.6 relief]; People 

v. Curiel (2023) 15 Cal.5th 433, 462 [after Sen. Bill No. 1437’s 

enactment, murder “liability requires a different, valid theory, 

such as direct aiding and abetting”].)

In addition to the jury instruction, the record of conviction, 

namely, the jury’s verdict and the People’s closing arguments,

further show that Roberts was convicted as the actual killer or a 

direct aider and abettor who had intent to kill. The jury found 

that Roberts personally used a firearm in the commission of the 

murder and robbery, under section 12022.5, subdivision (a). 

Although the jury was instructed that “personally used a firearm” 

had three meanings—Roberts (1) intentionally displayed a 

firearm in a menacing manner, (2) intentionally fired it, or 

(3) intentionally struck or hit a human being with it (CALJIC 

No. 17.19)—the prosecutor argued only that Roberts “personally 

pulled the trigger” and did not argue that Roberts used the gun 

in any of the other ways. Indeed, there was no theory posited by 

any party or evidence produced that Roberts displayed the rifle in 
12

a menacing manner or hit Hwang with it. The only evidence 

relevant to the firearm enhancement was that Roberts was the 

shooter, i.e., he personally pulled the trigger. The jury’s true 

finding on the firearm enhancement was consistent with—albeit 

not conclusive of—a conclusion that Roberts intentionally fired 

the rifle.

The prosecutor’s closing argument advanced its theory that 

Roberts was the actual killer. In making that argument, the 

prosecutor focused on the evidence supporting that theory rather 

than the instructions. And when the prosecutor referred to the 

instructions, he merely said that if the jury did not believe 

Roberts actually killed Hwang, Roberts was still guilty as an 

aider and abettor, “and he had to intend to kill by supplying a 

silenced weapon. He tells us he did that—he’s also guilty of the 

special circumstance.” Defense counsel then reiterated in his 

closing argument that an aider and abettor must intend to kill, 

saying that to “find the special circumstance true, you must find 

that Mr. Roberts was the actual killer or that [he w]as a 

participant and he had the intent to kill Mr. Hwang.”

A brief comment the prosecutor made in rebuttal did not 

tell the jury to disregard intent to kill if it believed Roberts was 

an aider and abettor and not the actual killer. The prosecutor 

said, “Look at the law as it applies to first degree murder. You 

heard it this morning. Any death during the course of a robbery 

is murder in the first degree. Look at the special circumstance, 

once a first degree murder has been proven. If the killing 

occurred in the commission of the robbery, the special 

circumstance is true.” (Italics added.) The prosecutor then 

immediately added that if the jury believed Wilson was the 

shooter despite the only evidence for that notion being Roberts’s 
13

uncorroborated statements, Roberts was “still involved in the 

planning and the preparation for the robbery, and he still had the 

intent to kill” Hwang. Placed in the specific context of what the 

prosecutor said and the general context of closing arguments as a 

whole, at no time did the prosecutor tell the jury it could find the 

special circumstance true if Roberts was an aider and abettor and 

lacked intent to kill Hwang. Instead, both the prosecutor and 

defense counsel repeatedly said that an aider and abettor must 

intend to kill.

Roberts nonetheless contends CALJIC No. 8.80.1 allowed 

the jury to find the special circumstance true even if it believed 

Roberts was an aider and abettor who “abandoned” any intent to 

kill once Wilson said he wanted to be the shooter. We disagree 

because CALJIC No. 8.80.1 specifically required the jury to find 

that Roberts “with the intent to kill, aided, abetted, or assisted 

any actor in the commission of the murder in the first degree.”

Meaning, if the jury convicted defendant on an aiding and 

abetting theory, the jury necessarily found he had the intent to 

kill when he did the aiding and abetting. That a defendant could 

change his mind after he completed the aiding and abetting is of 

no consequence. There was no ambiguity as to Roberts’s intent.

Roberts cursorily cites Ervin, supra, 72 Cal.App.5th 90, for 

support. Ervin, however, did not address an “abandonment of 

intent” theory. Rather, in Ervin, the defendant Ervin and two 

accomplices robbed a store, and one of the three men shot and 

killed a woman during the robbery. The jury found Ervin guilty

of burglary, robbery and first degree murder and found true two 

felony-murder special circumstance allegations. (Id. at p. 94.) 

The jury found that Ervin personally used a gun during the 

burglary and robbery but not during the murder. (Ibid.)
14

In ruling on Ervin’s section 1172.6 petition, the trial court 

found that the jury’s true finding on the special circumstance 

allegations precluded resentencing relief as a matter of law

because the jury necessarily found he was the actual killer or 

participated in the burglary and robbery with intent to kill. 

(Ervin, supra, 72 Cal.App.5th at p. 103.) The Court of Appeal

disagreed, finding that under the unique circumstances before it, 

the trial court erred in denying the petition based solely on the 

special circumstance findings. The court noted that the 

prosecution pursued two theories of first-degree murder liability: 

premeditated and deliberate murder, and felony murder. 

However, despite the prosecution’s theory of the case that Ervin 

was the actual killer, the jury did not find he used a gun in the 

commission of the murder. Therefore, the jury “potentially found 

Ervin guilty of murder as an aider and abettor under” the now

invalid felony-murder rule. (Id. at p. 104.)

The Court of Appeal then found that the special 

circumstance findings did not cure the problem. The specialcircumstance instructions contained this ambiguous, conditional 

language: “ ‘[If you find beyond a reasonable doubt that the 

defendant was [either the actual killer or an aider or abettor, but 

you are unable to decide which], then you must also find beyond a 

reasonable doubt that the defendant intended either to kill a 

human being or to aid another in the killing of a human being in 

order to find the special circumstance to be true.]’ ” (Ervin, 

supra, 72 Cal.App.5th at p. 107.) This conditional wording

allowed the jury to find that Ervin aided and abetted killing a 

person without the intent to kill. (Id. at p. 108.) The prosecutor 

in closing argument compounded the instructional problem by 

telling the jury multiple times it could find the special 
15

circumstance true by finding merely that Ervin participated in a

robbery during which a person was killed, without any mens rea 

finding. (Id. at pp. 109–110.)

Here, however, the special circumstance instruction, 

CALJIC No. 8.80.1, did not contain the problematic, conditional 

language given to Ervin’s jury. It instead unambiguously 

instructed that an aider and abettor had to have intent to kill. 

And, as we have said, the prosecutor did not conflate the special 

circumstance allegation with the former felony-murder rule. 

That is, he did not tell the jury it could find the special 

circumstance allegation true if Roberts was an aider and abettor 

and lacked intent to kill.

Moreover, the verdicts here were consistent, unlike in 

Ervin, where the jury found Ervin guilty of burglary, robbery, 

and murder and further found he personally used a firearm 

during the burglary and robbery but not the murder, contrary to 

the prosecutor’s theory that Ervin was the actual killer. (Ervin, 

supra, 72 Cal.App.5th at p. 103.) Roberts’s jury found him guilty 

of first degree murder and of second degree robbery, found that 

he personally used a firearm during both crimes, and found true 

the special circumstance allegation—all of which accorded with 

the prosecutor’s theories of liability at trial.9

9 Ervin also found the special circumstances instruction 

problematic because felony murder now requires an aider and 

abettor to assist “the actual killer in the commission of” first 

degree murder. (§ 189, subd. (e)(2), italics added; Ervin, supra, 

72 Cal.App.5th at p. 108.) The instruction given to Ervin’s jury, 

as the one here, required the jury to find he aided and abetted 

“any actor in the commission” of first degree murder. (Ervin, at 

p. 106.) Roberts does not address this issue, and therefore it is 

not before us on appeal, as we have no obligation to make 
16

DISPOSITION

The order denying Antonio Roberts’s Penal Code section 

1172.6 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.

arguments for litigants. (United Grand Corp. v. Malibu 

Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; see Public 

Employment Relations Bd. v. Bellflower Unified School Dist.

(2018) 29 Cal.App.5th 927, 939 [“ ‘ “absence of cogent legal 

argument or citation to authority allows this court to treat the 

contention as waived” ’ ”].)