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Filed 10/9/23 P. v. Robleto CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Colusa)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL A. ROBLETO,

Defendant and Appellant.

C097000

(Super. Ct. No. CR59083)

In October 2017, defendant Daniel A. Robleto entered an open plea of no contest 

to second degree murder and was sentenced to 15 years to life in state prison. 

The factual basis for the plea included the “evidentiary stipulation” that defendant 

“did personally commit an act of strangulation upon Lisa Marie Madrid, a human being, 

and by committing the said act of strangulation did unlawfully and with malice 

aforethought murder” her. That written stipulation--verbally confirmed by counsel for 

the People as well as defense counsel at the change of plea hearing--was read out loud as 
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the factual basis, in defendant’s presence, at the hearing, and immediately after its 

reading defendant entered his no contest plea. 

In May 2022, defendant filed a petition for resentencing under former Penal Code 

section 1170.95, now section 1172.6.1 The trial court denied the petition in August 2022, 

reasoning defendant was the actual killer based on the stipulated factual basis for his plea. 

Defendant raises several claims on appeal from the trial court’s order, each of 

which we address in detail and reject, post. We affirm the order. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant’s plea and sentencing

In 2017, defendant was charged with a single count of murder. The first amended 

complaint alleged defendant “unlawfully and with malice aforethought, murder[ed], [the 

victim]” in violation of section 187, subdivision (a). Defendant pleaded no contest to the 

charge of second degree murder, and counsel for both parties stipulated to the following 

factual basis for the plea: “[I]f the People were called upon to do so, the People would 

produce evidence both physical and testimonial, including the testimony of a [forensic 

pathologist] that on or about June 29, 2017, including the prior evening, [defendant] did 

personally commit the act of strangulation on [the victim]; by committing the act of 

strangulation, did unlawfully and with malice aforethough[t], murder [the victim] with 

asphyxiation. [Defendant] did leave [the victim’s] body on [a local road].” (Italics 

added.) This stipulation was filed as an exhibit to the plea agreement. Further, 

defendant initialed the relevant box (item no. 15) on his plea form wherein he agreed to 

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 Undesignated statutory references are to the Penal Code. 

 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 

1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. 

Although defendant filed his petition under former section 1170.95, we will cite to the 

current section 1172.6 in the remainder of our opinion.
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the term: “Written statement of factual basis will be filed herein prior to the plea and will 

be the subject of an evidentiary stipulation.” 

At the change of plea hearing, the trial court inquired as to the factual basis for the 

plea, which it had not yet received but noted was referenced in item no. 15 of the written 

plea form. That written stipulation--verbally confirmed by defense counsel as well as the 

prosecutor--was then read out loud, in defendant’s presence, at the hearing. Immediately 

after its reading, defendant entered his no contest plea. In December 2017, defendant 

was sentenced to state prison for 15 years to life.

Defendant’s section 1172.6 petition

After defendant filed his petition for resentencing in May 2022, the trial court 

appointed counsel for him. The prosecution filed an opposition to the petition, arguing 

defendant was not charged with murder under any theory of imputed malice. Noting that 

the factual basis of defendant’s plea stated that he personally strangled the victim with 

malice aforethought, the prosecution further argued defendant was ineligible for relief as 

a matter of law. 

During a July 2022 hearing on defendant’s petition, at which defendant was not 

personally present, defense counsel stated he had not filed a reply brief because he “d[id] 

not disagree” with the prosecution’s “factual allegations regarding the history of the 

case.” The trial court admonished counsel that failure to file a reply would be interpreted 

as a concession, although the court would still independently examine the record to 

determine whether a prima facie case had been made. Defense counsel stated he would 

submit without filing a reply to the People’s opposition to defendant’s petition as he did 

“not believe that the [petition] is well-founded.” The court tentatively agreed with 

counsel regarding defendant’s ineligibility for relief but continued the hearing to permit 

any further filings. 

The trial court held a second hearing later that month, and defense counsel again 

advised that he did not believe the requested relief was “appropriate.” The court agreed, 
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noting that the factual basis for the plea “demonstrates [that defendant] was not convicted 

of murder as an accomplice under the Felony Murder Rule or the Natural [and] Probable 

Consequences Doctrine, but rather as the sole principal in the commission [of] the 

murder, which was perpetrated directly by [defendant] by means of strangulation of the 

victim.” The court denied defendant’s petition. 

On appeal, defendant contends the trial court engaged in improper fact finding to 

determine that he was the actual killer. In the alternative, he argues his stipulation did not 

render him categorically ineligible for relief under section 1172.6. Finally, defendant 

argues his lawyer improperly conceded ineligibility despite defendant’s lack of consent to 

the concession. He adds that he received ineffective assistance of counsel. 

DISCUSSION

I

Legal Background

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which

became effective on January 1, 2019, “amend[ed] the felony murder rule and the natural 

and probable consequences doctrine, as it relates to murder, to ensure that murder 

liability is not imposed on a person who is not the actual killer, did not act with the intent 

to kill, or was not a major participant in the underlying felony who acted with reckless 

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)

Section 188, which defines malice, now provides in part: “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); Stats. 2018, ch. 1015, § 2.)

Senate Bill No. 1437 also added section 1172.6, which allows those convicted of 

murder under the felony murder theory to petition the trial court to vacate the conviction 

and resentence the defendant. (§ 1172.6, subd. (a).) “If the petitioner makes a prima 
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facie showing that the petitioner is entitled to relief, the court shall issue an order to show 

cause.” (§ 1172.6, subd. (c).)

The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” 

(People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) 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.” ’ ” 

(Ibid.) The court may rely on the record of conviction in determining whether defendant 

has made a prima facie showing, and “ ‘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.” ’ ” (Ibid.; see 

also People v. Harden (2022) 81 Cal.App.5th 45, 52 [it is appropriate for a court to deny 

a defendant’s resentencing petition if the record shows defendant is ineligible for relief as 

a matter of law].) The court “should not engage in ‘factfinding involving the weighing of 

evidence or the exercise of discretion.’ ” (Lewis, at p. 972.)

II

Ineligibility as a Matter of Law 

Defendant first argues the trial court erred in denying him an evidentiary hearing 

because his petition was facially sufficient under section 1172.6 and the record does not 

establish he is ineligible for relief as a matter of law. He points out that the complaint did 

not specify any theory of murder and there were no jury instructions to clarify on what 

theory the prosecution relied. He acknowledges the stipulated factual basis admits he 

strangled the victim to death with the requisite malice but argues he did not personally

stipulate to doing so. Citing People v. Rivera (2021) 62 Cal.App.5th 217, he argues the 

stipulation here does not render him categorically ineligible for relief. Accordingly, he 

alleges the court engaged in improper fact finding to conclude that he was the actual 

killer and ineligible for relief. We disagree.
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First, the trial court reviewed and relied upon the plea colloquy and plea form, 

which is part of the record of conviction. The court may rule against defendant on this 

basis, and doing so was not error. (See Lewis, supra, 11 Cal.5th at p. 971 [a court may 

deny a petition at the prima facie stage based on the record of conviction].)

Second, as we have explained in detail ante, defendant initialed his signed plea 

form at item no. 15, acknowledging that as a term of his open plea to second degree 

murder he was entering into an “evidentiary stipulation” that would serve as the factual 

basis for the plea. The stipulation was read into the record at the hearing, as the factual 

basis for the plea, in defendant’s presence, immediately before he changed his plea to no 

contest. The stipulation unequivocally established that defendant was the actual killer 

and had the requisite malice. That the trial court so found was not error.

Rivera, upon which defendant relies, is distinguishable. In that case, testimony 

before a grand jury showed that defendant drove an accomplice to a location where the 

accomplice shot and killed a victim. (People v. Rivera, supra, 62 Cal.App.5th at p. 224.) 

The defendant pleaded no contest to second degree murder, and his counsel stipulated to 

the transcript of the grand jury proceedings as the factual basis for the plea. (Id. at pp. 

225-226.) The trial court denied the defendant’s subsequent section 1172.6 petition, 

reasoning the defendant had pleaded no contest to second degree murder with malice. 

(Rivera, at pp. 226-227.) The appellate court reversed, holding that the defendant’s bare 

admission to second degree murder did not establish as a matter of law that he committed 

the murder with actual malice given the generic description of the crimes in the 

indictment. (Id. at p. 234.) Further, the defendant had not admitted the truth of specific

facts such that his counsel’s stipulation to the transcript as the factual basis for the plea 

precluded relief. (Id. at pp. 234-235.)

This case is nothing like Rivera. Here, through the stipulated factual basis, 

defendant agreed to specific facts establishing as a matter of law that he was not 

convicted under any theory of imputed malice, but was the actual killer with the requisite 
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mental state. Defendant initialed the relevant portion of the plea form and signed the 

form. He entered his no contest plea immediately after the recitation of what both the 

prosecutor and defense counsel announced was the agreed-upon factual basis for the plea. 

Further, unlike Rivera, nothing in this record suggests that someone other than defendant 

committed the murder. No one else was charged with the crime. Rivera is inapposite and

the trial court did not err in finding defendant ineligible for relief as a matter of law based 

on the record of conviction, including the charging document, the plea form, and the 

stipulation. 

III

Defense Counsel’s Actions and Inactions

Defendant next argues his counsel erroneously conceded he was ineligible for 

relief under section 1172.6. He cites McCoy v. Louisiana (2018) __ U.S. __ [200 

L.Ed.2d 821] to argue a Sixth Amendment violation by virtue of his counsel’s decision to 

not file a reply to the prosecution’s opposition brief and to otherwise admit defendant’s 

ineligibility as a matter of law. He argues counsel’s reluctance to argue defendant’s 

eligibility for relief was contrary to defendant’s interests and violated his clear objective 

to be resentenced under section 1172.6. In the alternative, defendant argues his counsel 

was ineffective in failing to argue in favor of granting defendant relief. We see no merit 

in these claims. 

First, because defendant had no Sixth Amendment right to counsel at this stage of 

the proceedings, see Lewis, supra, 11 Cal.5th at page 973, defendant cannot argue a 

violation of that right. Second, even were we to entertain the argument, defendant has 

failed to establish that his attorney acted in disregard of his explicit and continuing 

instructions.

“When a client expressly asserts that the objective of ‘his defence’ is to maintain 

innocence of the charged criminal acts, his lawyer must abide by that objective and may 

not override it by conceding guilt.” (McCoy v. Louisiana, supra, ___ U.S. at p. ___ [200 
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L.Ed.2d at p. 831].) If trial counsel overrides a defendant’s autonomy on a fundamental 

decision that is reserved for the client, the defendant’s Sixth Amendment rights are 

violated. (Id. at p. ___ [200 L.Ed.2d at pp. 829-830].) But the only evidence defendant 

cites as indicating that he expressly asserted a clear objective to continue to pursue his 

resentencing petition is the fact that he originally filed the petition. The record is silent as 

to any continued position taken by defendant (as opposed to by his counsel), or any 

conversations between the two. (See People v. Franks (2019) 35 Cal.App.5th 883, 891 

[no Sixth Amendment violation where nothing in the record indicated defendant ever 

made clear to his counsel that the objective of his defense was to maintain innocence].) 

Finally, given our conclusion that defendant was ineligible for relief as a matter of 

law, defendant cannot establish ineffective assistance of counsel, because there was no

reasonable probability that the outcome of the hearing would have been different had 

counsel acted differently. (See People v. Mai (2013) 57 Cal.4th 986, 1009-1010 [to 

establish a claim of ineffective assistance of counsel, a defendant must prove that (1) trial 

counsel’s representation was deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms, and (2) the deficiency resulted in 

prejudice to defendant, meaning “there is a reasonable probability that, but for counsel’s 

deficient performance, the outcome of the proceeding would have been different”]; see 

also People v. Ochoa (1998) 19 Cal.4th 353, 463 [trial counsel’s representation is not 

deficient “for failing to make meritless objections”]; People v. Price (1991) 1 Cal.4th 

324, 387 [“counsel does not render ineffective assistance by failing to make motions or 

objections that counsel reasonably determines would be futile”].) Defendant’s claims of 

error based on his counsel’s actions and inactions fail to persuade.
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DISPOSITION

The trial court’s order denying defendant’s petition is affirmed.

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Krause, J.

 /s/

Boulware Eurie, J.