Filed 12/1/20 P. v. Miller CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B297558
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA226937)
v.
TYRONE MILLER et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, George G. Lomeli, Judge. Reversed and remanded.
Leslie Conrad, under appointment by the Court of Appeal,
for Defendant and Appellant Tyrone Miller.
Daniel G. Koryn, under appointment by the Court of
Appeal, for Defendant And Appellant Derrick Patton.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
2
A jury convicted defendants and appellants Derrick Patton
(defendant Patton) and Tyrone Miller (defendant Miller) of first
degree felony murder. Following enactment of Senate Bill No.
1437 (Senate Bill 1437), defendants separately filed uncounseled
petitions for resentencing pursuant to Penal Code section
1170.95.1 The trial court denied their petitions without first
appointing counsel, and we consider whether either defendant is
eligible to have his murder conviction vacated in light of the
changes worked by Senate Bill 1437.
I. BACKGROUND
Defendants and Melvin Tate (Tate) were members of the 4-
Deuce Crips street gang and they had participated in a number of
“follow-home” robberies as part of the gang’s activities. (In re
Miller (2017) 14 Cal.App.5th 960, 964.) These robberies were
conducted in a similar fashion: a “spotter” would go into a bank,
locate a person withdrawing a large amount of cash, and identify
that person for the others involved in committing the robbery; the
“driver” would tail the victim to his or her destination; and the
“getter” would take the money. (Ibid.)
In May 2000, defendants met Tate at his residence and
planned a follow-home robbery that led to the murder convictions
at issue in this appeal; defendant Miller would serve as the
spotter, defendant Patton the driver, and Tate the getter. (In re
Miller, supra, 14 Cal.App.5th at 965.) When they later put their
plan into practice, defendant Miller spotted Ana Saravia
(Saravia) withdrawing $7,500 at a bank while accompanied by
1
Undesignated statutory references that follow are to the
Penal Code.
3
Rene Franco (Franco). (Ibid.) After Saravia and Franco exited
the bank, defendant Miller instructed defendant Patton and Tate
to follow them, advising Saravia had a lot of money in her purse.
(Ibid.)
Defendant Patton and Tate tailed Saravia and Franco to a
car dealership. (In re Miller, supra, 14 Cal.App.5th at 965.)
Defendant Patton handed Tate a loaded pistol and told him,
“[m]ake sure you get the purse.” (Ibid.) Tate approached Franco
and Saravia, grabbed Saravia’s purse, and knocked her to the
ground. (Ibid.) When Franco moved to intervene, Tate shot him
in the chest, killing him. (Ibid.) Defendant Patton and Tate
drove off and later rendezvoused at defendant Miller’s home,
where the three men divided the $7,500 they stole from Saravia.
(Ibid.)
A jury found defendants guilty of murdering Franco. (In re
Miller, supra, 14 Cal.App.5th at 965.) The jury also found true
an allegation that the killing occurred in the commission of a
robbery within the meaning of section 190.2, subdivision
(a)(17)(A)—a “special circumstance” that required a sentence of
life in prison without the possibility of parole (§ 190.2, subd. (d)).
That is the sentence the trial court imposed (plus additional
prison terms for certain other allegations the jury found true).2
(Id. at 965-966.) This court affirmed the convictions on direct
appeal in a 2003 opinion.
2
Section 190.2, subdivision (d) states “every person, not the
actual killer, who, with reckless indifference to human life and as
a major participant,” aids, abets, or assists in a robbery that
results in the death of some person or persons and is found guilty
of first degree murder shall be punished by death or life in prison
without the possibility of parole.
4
More than a decade later, following our Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark) that explain when a
felony murder aider and abettor may be sentenced to life in
prison without the possibility of parole, defendant Miller
petitioned for a writ of habeas corpus in this court. We granted
the petition and vacated the special circumstance true finding
against him.3 (In re Miller, supra, 14 Cal.App.5th at 966-967
[“[T]he evidence against defendant [Miller] would not permit a
jury to rationally conclude he exhibited a reckless indifference to
human life”].) In 2017, Defendant Patton also sought habeas
corpus relief in this court, similarly relying on Banks and Clark,
but we summarily denied his petition.
Most recently, and key for purposes of this appeal,
defendants separately filed section 1170.95 petitions for
resentencing pursuant to newly enacted Senate Bill 1437, which
“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).)
The trial court denied both petitions without appointing
counsel for defendants and without soliciting opposition from the
People. As to defendant Miller, the court recognized he was
3
The superior court later resentenced defendant Miller to 25
years to life for murder under section 187, subdivision (a) plus 25
years to life for a firearm enhancement under section 12022.53,
subdivision (d).
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“seemingly” entitled to relief under the provisions added to the
Penal Code by Senate Bill 1437, but the court concluded Senate
Bill 1437 was unconstitutional and denied his petition on that
basis. The trial court likewise denied defendant Patton’s section
1170.95 petition on constitutional grounds, but the court also
found, in the alternative, that defendant Patton was ineligible for
relief because he was a “major participant [in the crime] who
acted with reckless indifference.”
II. DISCUSSION
The trial court denied defendants’ section 1170.95 petitions
because the court believed Senate Bill 1437 is unconstitutional.
That is wrong. (See, e.g., People v. Bucio (2020) 48 Cal.App.5th
300; People v. Solis (2020) 46 Cal.App.5th 762, 769 [“Senate Bill
No. 1437 addresses the elements of the crime of murder and is
directed to the mental state and conduct of those accused of
murder. [Citation.] It does not authorize anything [two voter-
approved] initiatives prohibited, nor prohibit anything they
authorized”]; People v. Cruz (2020) 46 Cal.App.5th 740; People v.
Superior Court (Gooden) (2020) 42 Cal.App.5th 270; People v.
Lamoureux (2019) 42 Cal.App.5th 241, 246 [“[W]e conclude the
resentencing provision of Senate Bill 1437 does not contravene
separation of powers principles or violate the rights of crime
victims”].) We need say no more about that.
More does need to be said, however, about defendants’
statutory eligibility for relief. The bottom line is that reversal is
required because neither defendant is ineligible for section
1170.95 relief as a matter of law.
That is obvious when it comes to defendant Miller, as to
whom this court has already reached a post-Banks and Clark
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conclusion that he did not act with reckless indifference to human
life. (Miller, supra, 14 Cal.App.5th 975 [“[W]e are convinced the
evidence was insufficient to show defendant [Miller] acted with a
reckless indifference to human life”].) As the Attorney General
concedes, that post-Banks and Clark finding means he is entitled
to resentencing under section 1170.95 without further ado.
(§ 1170.95, subd. (d)(2) [“If there was a prior finding by a court or
jury that the petitioner did not act with reckless indifference to
human life or was not a major participant in the felony, the court
shall vacate the petitioner’s conviction and resentence the
petitioner”]; see also People v. Ramirez (2019) 41 Cal.App.5th
923, 932-933.)
The conclusion that reversal is required is less obvious as
to defendant Patton, given his apparent role in Franco’s killing
(handing the murder weapon to the actual killer at the scene of
the crime) and our summary denial of his prior habeas petition
(although that is not law of the case (see generally Gomez v.
Superior Court (2012) 54 Cal.4th 293, 305, fn. 6)). But obvious or
not, the conclusion still obtains. Defendant Patton’s eligibility
turns on an evidentiary assessment of whether he was a major
participant who acted with reckless indifference to life and—
critically—such an assessment can be made only after counsel is
appointed for defendant Patton and has an opportunity to proffer
additional evidence, beyond the existing record of conviction, that
might alter an assessment of his role in Franco’s killing. (People
v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18,
2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 92,
review granted Jul. 22, 2020, S262835 [“If . . . a determination of
eligibility requires an assessment of the evidence concerning the
commission of the petitioner’s offense, the trial court must
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appoint counsel and permit the filing of the submissions
contemplated by section 1170.95”]; id. at 96 [“[W]e cannot say at
this stage of the proceedings that failure to appoint counsel was
harmless ‘given the trial evidence’; by the express terms of
section 1170.95, subdivision (d)(3), counsel is not limited to the
trial evidence”]; see also People v. Murillo (2020) 54 Cal.App.5th
160, 173, review granted Nov. 18, 2020, S264978 [“If as a matter
of law the record of conviction shows . . . that the defendant was a
major participant who acted with reckless indifference to human
life, and the defendant does not claim he has new evidence to
present, he has not made a prima facie case”], italics added.) Of
course, if such an evidentiary proffer is not forthcoming (or if it is,
but still does not defeat a conclusion that defendant Patton is
ineligible for relief as a matter of law), then the trial court will be
justified in denying defendant Patton’s section 1170.95 petition
without issuing an order to show cause.
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DISPOSITION
The orders denying defendants’ section 1170.95 petitions
are reversed. The trial court is directed to vacate defendant
Miller’s murder conviction and resentence him consistent with
section 1170.95, subdivisions (a) and (d)(2). The trial court is
directed to appoint counsel for defendant Patton and thereafter
proceed as required by section 1170.95, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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