Filed 6/28/24 P. v. Robles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO ROBLES, JR.,

Defendant and Appellant.

B329594

Los Angeles County

Super. Ct. No. BA390804

APPEAL from an order of the Superior Court of 

Los Angeles County, James R. Dabney, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Susan Sullivan Pithey,

Assistant Attorney General, Noah P. Hill and Eric J. Kohm,

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Armando Robles, Jr. (Robles) appeals from the trial court’s 

order denying his petition to vacate his two attempted murder 

convictions and resentence him under Penal Code section 

1172.6.1 Robles contends the court abused its discretion when it 

denied his petition without holding a hearing on his request to 

substitute new counsel. Because the record of conviction

establishes Robles is ineligible for resentencing as a matter of 

law, any error in denying his petition was harmless. We therefore 

affirm.

BACKGROUND

1. The Trial

The People charged Robles and a codefendant each with 

two counts of attempted murder (§§ 664, 187, subd. (a)) and one 

count of shooting at an occupied vehicle (§ 246). The People 

alleged the attempted murders were committed willfully, 

deliberately, and with premeditation (§ 1192.7, subd. (c)) and for 

the benefit of a criminal street gang (§ 186.22). The People also 

alleged that a principal personally used a firearm during the 

commission of the attempted murders (§ 12022.53, subds. (b), (c), 

& (e)(1)).

Robles and his codefendant were tried by the same jury. 

The court instructed the jury on the elements of attempted 

murder, premeditation and deliberation, and direct aiding and 

abetting. (See CALCRIM Nos. 401, 600, & 601.) Relevant here, 

1 All undesignated statutory references are to the Penal Code. Robles 

filed his petition under former section 1170.95, which the Legislature 

later renumbered to section 1172.6 without substantive change. (Stats. 

2022, ch. 58, § 10.) We cite to section 1172.6 throughout this opinion 

for ease of reference.
3

the court instructed the jury it could convict either defendant of 

aiding and abetting attempted murder if it found he knew the 

perpetrator intended to commit the crime, the defendant

intended to aid and abet the perpetrator in committing the crime, 

and, through his words or acts, the defendant aided and abetted 

the perpetrator’s commission of the crime. (See CALCRIM No. 

401.) The court did not instruct the jury on the natural and 

probable consequences doctrine or any other imputed malice 

theory. Nor did the prosecutor argue that the jury could convict 

Robles or his codefendant of attempted murder under the natural 

and probable consequences doctrine or any other imputed malice 

theory.

2

The jury convicted Robles and his codefendant of two 

counts each of willful, deliberate, and premeditated attempted 

murder (§§ 664, 187, subd. (a)) and one count each of shooting at 

an occupied vehicle (§ 246). The jury also found true that Robles 

and his codefendant committed the crimes for the benefit of a 

street gang and, as to Robles, that a principal personally used a 

firearm. The court sentenced Robles to a total term of 63 years to 

life in prison.

2. Robles’s Resentencing Petition

In June 2020, Robles filed his resentencing petition. The 

court denied the petition without appointing counsel to represent 

Robles or requesting briefing from Robles or the People. The 

court found Robles was ineligible for relief because he was 

convicted of attempted murder, which at the time wasn’t listed as 

an offense eligible for resentencing.

2 In the trial court, the People attached to their response to Robles’s 

resentencing petition several exhibits, including copies of the jury 

instructions and the reporter’s transcripts from Robles’s trial. We have 

reviewed those exhibits.
4

After we issued our original opinion affirming the court’s 

order denying Robles’s petition, the Legislature enacted Senate 

Bill No. 775 (2021–2022 Reg. Sess.) (S.B. 775), which made

attempted murder under a natural and probable consequences 

theory an offense eligible for resentencing under section 1172.6. 

(See § 1172.6, subd. (a).) The Supreme Court granted Robles’s 

petition for review and ordered us to reconsider his appeal in 

light of S.B. 775. We reversed the court’s order denying Robles’s 

petition and remanded the matter for the court to reconsider 

whether Robles made a prima facie showing of eligibility for 

relief. 

On March 28, 2023, after the case was remanded to the 

trial court, Robles filed a 16-page letter asking the court to 

discharge his appointed counsel, who represented him at trial,

and substitute in a new attorney to represent him for purposes of 

his resentencing petition. Robles claimed he had a conflict of 

interest with appointed counsel because she refused to introduce 

at the prima facie hearing on his resentencing petition evidence 

that was not presented at trial. The evidence included, among 

other things, statements from potential alibi witnesses who 

appointed counsel never interviewed before trial. Robles claimed 

the evidence contradicted several assertions in the People’s 

opposition to his resentencing petition and raised doubts about 

whether he should have been convicted of attempted murder.

Robles believed that appointed counsel was reluctant to present 

the new evidence because she feared it would tarnish her 

reputation and could show she provided ineffective assistance at 

trial. 

In addition, Robles claimed appointed counsel refused to 

include as part of his resentencing petition a request for the court 

to strike his sentence enhancements. Robles believed his sentence 

was unfair because one of his cohorts who pled to attempted 
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murder and admitted gang and personal-use gun allegations 

received a lesser sentence. Robles also asserted that his 

relationship with appointed counsel was compromised because 

they had “too many heated arguments regarding examples of 

ineffective assistance of counsel” at Robles’s trial. 

Robles attached several exhibits to his letter, including 

summaries of two interviews his private investigator had with 

potential alibi witnesses.

On March 29, 2023, the court held a hearing on Robles’s 

resentencing petition. Robles wasn’t present, and stand-in 

counsel appeared in place of appointed counsel. The court noted 

that Robles was unable to appear remotely because his prison’s 

video equipment wasn’t working. 

At the beginning of the hearing, stand-in counsel noted 

that Robles made a request under People v. Marsden (1970) 2 

Cal.3d 118 (Marsden) to discharge his appointed counsel and 

substitute new counsel to represent him for purposes of his 

resentencing petition. Stand-in counsel stated it would be 

difficult to proceed past the prima facie stage without hearing 

what concerns Robles had with his appointed counsel.

The court responded: “[Robles] sent a packet to the court. 

They really deal with—he would like to litigate underlying 

facts—is not happy with [appointed counsel] for not doing it. [¶] 

And if we get past this proceeding, then these issues may be 

relevant at that point. I think it’s a misunderstanding as to what 

the proceedings are up to this stage. [¶] [Robles’s] comments are 

filed. They’ll be part of the court record, but the bottom line is the 

only question before me now is is there—because all the boxes 

were checked off, we got this far. [¶] Then the next question 

becomes after briefing and presentation of the court record, 

whether there’s a basis to issue an order to show cause, whether 

there’s a prima facie case, order to show cause to have an 
6

evidentiary hearing, in which case, many of those issues he’s 

trying to raise may or may not become relevant. [¶] ... [S]o I 

understand his frustration. However, we are where we are. So 

I’ve read the moving papers that were filed and the response and

as well as the reply. And at this point, I’m ready to conduct the 

hearing and move forward.” Over stand-in counsel’s objection, the 

court proceeded with the hearing on Robles’s resentencing 

petition without Robles present and without ruling on his request

to substitute new counsel. 

The court denied Robles’s resentencing petition. The court 

found that Robles was ineligible for relief as a matter of law 

because the record—including the charging documents, the jury 

instructions, and the parties’ arguments at trial—showed he was 

convicted under a valid theory of attempted murder. 

Robles appeals.

DISCUSSION

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, 

ch. 1015, § 2) (S.B. 1437) eliminated natural and probable 

consequences liability for aiding and abetting murder and limited 

the scope of the felony murder rule. (People v. Lewis (2021) 11 

Cal.5th 952, 957 (Lewis).) It also created a mechanism, now 

codified in section 1172.6, for a defendant previously convicted of

murder to petition the trial court to vacate his conviction and be 

resentenced if he could not now be convicted of murder because of 

changes made by the new law. (Lewis, at pp. 959–960.) S.B. 775

later amended section 1172.6 to allow resentencing for a

defendant convicted of, among other crimes, attempted murder 

under the natural and probable consequences doctrine. (People v. 

Lee (2023) 95 Cal.App.5th 1164, 1174; see also § 1172.6, subd. 

(a).) 

A defendant seeking resentencing under section 1172.6

must file a petition that includes a declaration stating he is 
7

eligible for relief and indicating whether he wants counsel 

appointed to represent him. (§ 1172.6, subd. (b).) Upon receiving 

a facially sufficient petition, the court must appoint counsel if 

requested and determine whether the defendant “has made a 

prima facie case for relief.” (Id., subds. (b)(3), (c).)

Section 1172.6’s prima facie analysis is designed “to 

distinguish petitions with potential merit from those that are 

clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) The court 

may consider the record of conviction and the allegations in the 

defendant’s petition. (Ibid.) The court may not engage in 

factfinding involving the weighing of evidence or the exercise of 

discretion. (Ibid.) If the record of conviction shows the defendant

is ineligible for relief as a matter of law, the court may deny the

petition. (Id. at pp. 971–972; People v. Strong (2022) 13 Cal.5th 

698, 708 (Strong).) 

Robles contends the court erred when it denied his 

resentencing petition without allowing him the opportunity to 

address, either in person or remotely, his request to replace his 

appointed counsel. When a defendant moves to discharge his 

appointed counsel and substitute new counsel, the trial court 

must give the defendant the opportunity to express specific 

reasons why he believes he is not receiving adequate 

representation from his current counsel. (Marsden, supra, 2 

Cal.3d at pp. 123–125; People v. Vera (2004) 122 Cal.App.4th 970, 

979.) The court must appoint substitute counsel if the record 

clearly shows that “ ‘ “appointed counsel is not providing 

adequate representation or that defendant and counsel have 

become embroiled in such an irreconcilable conflict that 

ineffective representation is likely to result.” ’ ” (People v. Streeter 

(2012) 54 Cal.4th 205, 230.)

We need not decide whether the court was required to hold 

a hearing on Robles’s request to replace his appointed counsel
8

before making its prima facie determination under section 1172.6 

because, even assuming the court was required to do so, any error 

was harmless. To establish a trial court’s error at the prima facie 

stage was prejudicial, the defendant must show that there is a 

reasonable probability that but for the error, the court would 

have issued an order to show cause and held an evidentiary 

hearing under section 1172.6, subdivision (d). (Lewis, supra, 11 

Cal.5th at pp. 973–974; see People v. Watson (1956) 46 Cal.2d 

818, 836.) 

Here, Robles was convicted of two counts of premeditated 

attempted murder. The jury was not instructed on the natural 

and probable consequences doctrine or any other imputed malice 

theory. Instead, the court instructed the jury only on the 

elements of attempted murder and the principles of direct aiding 

and abetting, intent to kill, and premeditation and deliberation.

Thus, to find Robles guilty of either count of attempted murder, 

the jury was required to find he acted with malice aforethought, 

either as the perpetrator of the crime (see CALCRIM No. 600 

[attempted murder instruction]) or as the direct aider and abettor 

of the crime (see CALCRIM No. 401 [direct aiding and abetting 

instruction]). (See People v. Gentile (2020) 10 Cal.5th 830, 848

[S.B. 1437 did not eliminate direct aiding and abetting liability 

because a direct aider and abettor must possess malice 

aforethought].) In other words, the record of conviction

conclusively establishes that Robles is ineligible for resentencing 

because he was convicted of attempted murder under a theory 

that remains valid notwithstanding changes made to the law of 

attempted murder by S.B. 1437 and S.B. 775. (See People v. 

Harden (2022) 81 Cal.App.5th 45, 52 [“if the record shows that 

the jury was not instructed on either the natural and probable 

consequences or felony-murder doctrines, then the petitioner is 

ineligible for relief as a matter of law”].)
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Robles does not dispute that the jury was never instructed 

on the natural and probable consequences doctrine. Nor does he 

otherwise contend that he was convicted of attempted murder 

under an invalid theory. Instead, Robles argues that had the

court granted his request to replace his appointed counsel,

substitute counsel may have been able to show appointed counsel 

provided ineffective assistance at Robles’s trial by failing to 

present evidence that Robles was not the perpetrator of the 

attempted murder. Additionally, substitute counsel may have 

been able to proffer new evidence that, had it been presented at 

trial, may have caused the jury to reach a different verdict.

Without allowing him the opportunity to further address the 

concerns he has with appointed counsel’s performance, Robles 

argues, we cannot conclude the court’s refusal to hold a hearing 

on his request to replace appointed counsel was harmless. This 

argument is misguided. 

The filing of a section 1172.6 petition does not afford a 

defendant “a new opportunity to raise claims of trial error or 

attack the sufficiency of the evidence supporting the jury’s 

findings.” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Nor 

does anything in section 1172.6, subdivision (c) permit the trial 

court to consider evidence outside the record of conviction at the 

prima facie stage. Instead, 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 doover on factual disputes that have already been resolved.’ ” 

(Farfan, at p. 947.) In other words, a defendant seeking 

resentencing under section 1172.6 is limited to showing he could 

not be convicted of murder or attempted murder because of 

changes made to sections 188 or 189 by S.B. 1437 and subsequent 

legislation (§ 1172.6, subd. (a)(3)), not because he may have 

obtained a more favorable verdict but for alleged deficiencies in 
10

appointed counsel’s performance at trial. (See Farfan, at p. 948; 

see also People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [a 

claim of ineffective assistance of counsel must be raised on direct 

appeal or through a petition for writ of habeas corpus].)

In sum, the record of conviction conclusively establishes

that Robles is ineligible for resentencing under section 1172.6. 

Thus, Robles has not shown it is reasonably likely that the court 

would have issued an order to show cause and held an 

evidentiary hearing even if it held a hearing on his Marsden

request and replaced his appointed counsel. (See Strong, supra, 

13 Cal.5th at p. 708 [“If the petition and record in the case 

establish conclusively that the defendant is ineligible for relief, 

the trial court may dismiss the petition”].) Any error in the 

court’s denial of Robles’s resentencing petition was, therefore,

harmless. (See Lewis, supra, 11 Cal.5th at p. 974.)
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DISPOSITION

The order denying Robles’s resentencing petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.