People v. Miller CA1/1

Filed 1/29/21 P. v. Miller CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and
Respondent, A159345

v. (Solano County
RICHARD MILLER, Super. Ct. No. VCR186579)
Defendant and
Appellant.

In 2008, defendant Richard Miller, one of three participants in a
marijuana robbery, pleaded no contest to second degree murder to avoid
going to trial on felony murder charges. He was sentenced to 20 years to life
in state prison.
In 2019, he filed a petition for resentencing under Penal Code section
1170.95. (Pen. Code, § 1170.95.1) The trial court appointed counsel, ruled
defendant made a prima facie showing of entitlement to resentencing, and
held an evidentiary hearing at which several witnesses, including defendant’s
co-perpetrators, testified. After additional briefing by the parties, the court
denied the petition.

All further references are to the Penal Code unless otherwise
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indicated.

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 Defendant raises a single issue on appeal—that the trial court
misunderstood the nature of its role at the evidentiary hearing stage and
failed to make the findings required to deny resentencing. We affirm.
DISCUSSION
The Courts of Appeal have taken divergent views as to the nature of
the findings trial courts are to make following a section 1170.95 evidentiary
hearing.
In People v. Duke (2020) 55 Cal.App.5th 113 (Duke), review granted
January 13, 2021, S265309, the Court of Appeal described the
prosecution’s burden and trial court’s role as follows: “The prosecution
bears the burden ‘to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).) The
primary requirement for eligibility for resentencing under section
1170.95 is that ‘[t]he petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.’ (§ 1170.95, subd. (a)(3).) To carry its burden, the
prosecution must therefore prove beyond a reasonable doubt that the
defendant could still have been convicted of murder under the new
law—in other words, that a reasonable jury could find the defendant
guilty of murder with the requisite mental state for that degree of
murder. This is essentially identical to the standard of substantial
evidence, in which the reviewing court asks ‘ “whether, on the entire
record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt. . . .” ’ ” (Duke, at p. 123, fn. omitted; see People v.
Garcia (2020) 57 Cal.App.5th 100, 112-115 (Garcia) [although defendant was
tried and convicted solely on the basis of the natural and probable

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consequences doctrine, appellate court affirmed denial of resentencing
petition on ground he failed to make a prima facie showing of entitlement to
resentencing because the trial evidence would have supported conviction as a
direct aider and abettor; the record therefore established defendant “could”
have been convicted of murder regardless of the recent changes to section
188].)
In People v. Lopez (2020) 56 Cal.App.5th 936, 950-951 (Lopez), the
Court of Appeal disagreed with Duke’s characterization that the standard
applicable at the evidentiary hearing stage is akin to substantial evidence.
Rather, Lopez concluded “that to establish a petitioner’s ineligibility for
section 1170.95 relief for failure to satisfy the third condition, the prosecutor
must prove beyond a reasonable doubt the elements of first or second degree
murder under the current law.”2 (Id. at p. 951.) The court in People v.
Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez), after a lengthy analysis of
the issue, agreed with “the Lopez Court of Appeal that it is the [trial] court’s
responsibility to act as independent fact finder and determine whether the
evidence establishes a petitioner would be guilty of murder under amended

2The Lopez court observed, “The question raised by this appeal is how
possible or likely must that outcome be. In other words, how confident must
the trial court be in the state’s ability to prove the petitioner’s guilt of murder
under current law in order to find petitioner ineligible for relief. Must the
prosecutor persuade the trial court that the state theoretically has the
requisite ability because there is substantial evidence from which a
reasonable trier of fact could convict? Or must the prosecutor persuade the
trial court beyond a reasonable doubt that the state has the requisite ability
by proving beyond a reasonable doubt each element of murder? In short,
what is the standard of proof? (People v. Mary H. (2016) 5 Cal.App.5th 246,
255 . . . [‘ “The function of a standard of proof . . . is to ‘instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.’ ”
[Citation.]’.)” (Lopez, supra, 56 Cal.App.5th at p. 949.)

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sections 188 and 189 and is thus ineligible for resentencing under section
1170.95, subdivision (d)(3).” (Id. at p. 243-244.)
While we harbor many of the concerns expressed in the concurring
opinion in Garcia, we agree with Lopez and Rodriguez that at the evidentiary
hearing stage, the trial court’s role is not merely one of review, applying a
substantial evidence standard, but of fact finder. On this record, we need not
decide whether we wholly agree with Lopez’s and Rodriguez’s articulation of
the fact-finding role—that the trial court must independently find, beyond a
reasonable doubt, each of the elements of murder as now set forth in
amended sections 188 and 189. As we shall discuss, we conclude the trial
court met the exacting standard articulated in these two cases and made the
requisite findings.
Defendant asserts the trial court did not engage in independent fact
finding, but rather effectively employed a substantial evidence standard.
The Attorney General maintains the trial court did make findings, guided by
the principles in People v. Banks (2015) 61 Cal.4th 788 (Banks), that
defendant was a major participant in the underlying felony and also acted
with reckless indifference to human life, and therefore properly denied the
resentencing petition.
The pertinent parts of the record are as follows:
At the outset of the evidentiary hearing (held in December 2019, before
the decisions in Duke and Garcia, and in Lopez and Rodriguez), the trial
court stated:
“Court: Okay. And just so we’re on the same page here, what I have
the law stating is that, at this point, the burden is on the People to
prove beyond a reasonable doubt, that the petitioner is ineligible for
resentencing, correct?

“[Prosecutor]: Correct.”

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 At the close of evidence, the court asked for additional briefing, stating:

“Court: . . . All right. So, this is what I would like to do. I am familiar
with the law in this case. But some of the concepts haven’t necessarily
been applied in this context, so I want to be careful about how we
choose to apply these concepts that have been applied in other
circumstances to this hearing.

“I have a lot of notes about the testimony here. And I would like both
sides to brief the matters about—if you choose to do so—about why it
is, Ms. Collins, that you have met your burden of proof as it applies to
what the statute states, and how the facts apply to the legal standards
that are within the statute.

“And, Ms. Prince [(defense counsel)], obviously I would like you to brief
your position on that same issue.”

At the next hearing, counsel first argued the evidence. Defense counsel
emphasized there was no evidence defendant intended to kill; indeed, there
was no evidence either of the three participants meant to do anything other
than commit a robbery. “[T]he bottom line is Mr. Miller was 18 years old at
the time. He did not have a subjective intent to kill. The plan was to grab
the marijuana and run. That’s exactly what he did.” Defense counsel also
pointed out the court had already granted resentencing to the participant
who assertedly had a major hand in planning the robbery but who, according
to defense counsel, had “very cleverly managed to make himself not present
at the time of the robbery.” Counsel argued defendant’s culpability was
“certainly not more than that of” his cohort.
The prosecutor, in turn, focused on the evidence that defendant was a
major participant in the underling felony and acted with reckless indifference
to human life, reviewing the evidence in light of the Banks factors set forth in
CALCRIM No. 703.

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 A colloquy then occurred between the prosecutor and the court as to the
prosecutor’s standard of proof:
“[Prosecutor]: . . . the standard of proof, I believe, is I didn’t in this
hearing have to prove beyond a reasonable doubt that Mr. Miller was a
major participant and acted with reckless indifference. It’s—I had to
prove that a jury could have convicted him based off these facts. And I
believe I have met my burden in this case.

“Court: I think that’s the burden in a roundabout way. I think the
burden on you is to prove beyond a reasonable doubt that the petitioner
is ineligible for resentencing. And your burden is to show that he could
have been convicted of murder under the new law.

“[Prosecutor]: I agree with that.

“Court: From that—I’m getting that from 1170.95(d)(3). So that’s the
standard on which I’m evaluating this. Okay.

Defense counsel made no objection, but proceeded to further argue the
evidence, responding to the prosecutor’s assertion the evidence proved
defendant was a major participant in the robbery and acted with reckless
indifference to human life.
Upon submitting the matter, the trial court stated its ruling on the
record as follows:
“Court: All right. So I’ve already stated the standard by which I am
examining this, and now the matter’s been submitted. I’ll just restate
that.

“So, in my view, the burden at the hearing was for the prosecution
to prove beyond a reasonable doubt that the petitioner Mr. Miller
was ineligible for resentencing. That means the prosecutor had
to meet a burden to show that petitioner could have been
convicted of murder under the new law as it currently exists, not
the law that existed at the time that this occurred and was tried.

“Mr. Miller does argue that his conduct is comparable to that of
an individual named Matthews in the case of the People vs.

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Banks, that’s at 61 Cal.4th 788. Matthews was the getaway
driver for an armed robbery. In that case, the supreme court held
that there was no evidence of that individual’s participation in
planning, procuring a weapon, because of that he was not a major
participant in the murder.

“I see this case as different than that with respect to Mr. Miller
being a major participant. I am considering the evidence that Mr.
Miller was involved in the planning of the crime. He did bring a
weapon. It ended up being the weapon used to kill the victim in
this case.

“The fact that there were going to be two weapons present does
indicate to me that Mr. Miller knew that this could be a very
dangerous situation. He was also present at the scene, unlike Mr.
Matthews in the Banks case, who was not present at the scene.
That meant he had the ability to facilitate or prevent the killing.
I’m considering also his actions following the killing.

“Considering all that, I do find that he was a major participant in
this murder and the robbery that led to the murder, unlike the
defendant–I’m sorry, unlike Mr. Matthews in the Banks case.

“After that, I then need to move to considering whether or not
Mr. Miller acted with reckless indifference to human life, and
that requires consideration of similar factors. I’m considering
Mr. Miller’s knowledge of the presence of a weapon, in that he
did bring a weapon to this crime. His proximity to the crime.
He was in the vehicle right next to Mr. Mackey when Mr.
Mackey first tried to shoot. Then he, I think, grabbed the
property, the marijuana. And as he left, Mr. Mackey proceeded
to shoot and kill the victim in this case. That means he was in a
position to minimize the possibility of violence, but he did
nothing other than leaving. That indicated either that he was
trying to not be part of it, but could also indicate his indifference
to what was going on.

“In addition to that, I think there was evidence presented at this
hearing that Mr. Miller knew of Mr. Mackey’s tendency toward
violence. He had been threatened by Mr. Mackey himself, the
petitioner had, in the past, Mr. Miller had. So I considered that as

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 well.

“So not only did he bring the weapon to this crime that was
eventually used to kill the victim, he gave it to an individual he
knew that was violent, and there is some discussion about
whether or not someone would have been shot. But it looks to me
that Mr. Miller did act with reckless indifference to human life, in
considering all that. Because of that, I’m going to deny his
petition to resentencing. I don’t think he’s eligible for
resentencing under the law because he could have been found
guilty under the law as it currently exists, and not simply how
he was found guilty in the past. So I think he’s ineligible for
resentencing, and I’m denying the petition.” (Italics added.)

There is no question the trial court correctly understood the
prosecution had the burden of proof and had to prove beyond a reasonable
doubt that defendant was not eligible for resentencing. It is also clear the
prosecutor and defense counsel argued whether the evidence presented at the
hearing proved beyond a reasonable doubt that defendant could still be
convicted of felony murder because he was a major participant in the
underlying felony and acted with reckless indifference to human life.
The question the parties dispute on appeal is whether the trial court,
sitting as the trier of fact, actually found defendant was a major participant
in the underlying felony and acted with reckless indifference to human life.
Defendant asserts the trial court did not make such findings. He
acknowledges the court stated on the record, “I do find that he was a major
participant in this murder and the robbery that led to the murder.” (Italics
added.) But he essentially claims this was fortuitous word choice. He points
out the trial court did not use such explicit terminology with respect to
whether defendant acted with reckless indifference to human life. He further
points out the court never stated that to deny resentencing, it had to find,
beyond a reasonable doubt, each of the elements now required to sustain

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malice murder or felony murder. Rather, the court described its task as
determining whether the prosecutor proved “beyond a reasonable doubt that
the petitioner is ineligible for resentencing.” Defendant further observes that
the prosecutor told the court, “I didn’t in this hearing have to prove beyond a
reasonable doubt that Mr. Miller was a major participant and acted with
reckless indifference. It’s—I had to prove that a jury could have convicted
him based off these facts.”
The Attorney General, in turn, claims that, regardless of how the
prosecutor may have characterized her burden, the trial court did find
defendant was a major participant in the underlying felony and acted with
reckless indifference to human life. The Attorney General acknowledges that
with respect to reckless indifference the trial did not explicitly state, “I find,”
as it did with respect to defendant being a major participant in the crime, but
claims this is effectively what the trial court stated. The Attorney General
further points out the trial court never equated its task with a substantial
evidence type of review, which Lopez and Rodriguez rejected. Rather, the
court repeatedly stated the prosecutor’s burden was “to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing”—exactly
the language of the statute. (§ 1170.95, subd. (d)(3).)
In Lopez and Rodriguez, the appellate courts, after discussing the
applicable standard, turned to whether the trial courts had actually engaged
in the required fact finding, and given the differing records, reached different
conclusions.
In Lopez, the defendant, to support his assertion the trial court had not
applied the correct legal standard, “relie[d] on the trial court’s ruling that the
People met their burden ‘to show beyond a reasonable doubt that [Lopez]
could still be convicted of murder. . . .’ ” (Lopez, supra, 56 Cal.App.5th at

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p. 951.) “But that statement,” said the appellate court, “provide[d] no support
for Lopez’s position, as the trial court merely used the statutory language. As
discussed above, the third condition is that ‘[t]he petitioner could not be
convicted of first or second degree murder’ under the current law. (§ 1170.95,
subd. (a)(3).) And the prosecutor must prove the inverse—that petitioner
could be convicted of degree murder under the current law. The trial court’s
use of the statutory language does not convince us that the court misapplied
the law.” (Ibid.)
“Moreover, the record persuade[d]” the appellate court “that the trial
court applied the proper standard. First, the parties correctly argued below
that the trial court could deny the petition only if it found that the elements
of second degree implied malice murder had been proved beyond a reasonable
doubt. Specifically, the prosecutor argued that the petition should be denied
because ‘Lopez is guilty of second-degree murder’ because his acts were the
proximate cause of the Frosty’s death and because Lopez acted with a
reckless indifference to human life. And the prosecutor urged the trial court
to ‘find that Lopez acted with a reckless indifference to human life when he
organized a criminal street gang meeting for the sole purpose of having Fraga
determined to be no-good.’ The prosecutor did not ask the court to apply the
substantial evidence standard. Lopez’s trial court brief asserted that the
pertinent question was ‘whether the facts show beyond a reasonable doubt
that, with implied malice, Lopez caused the death of Frosty.’ At the hearing,
Lopez’s counsel framed the question as ‘whether or not implied malice was
proven beyond a reasonable doubt.’ Neither the prosecutor nor the trial court
took issue with defense counsel’s characterization of the applicable legal
standard.” (Lopez, supra, 56 Cal.App.5th at pp. 951-952.)

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 “Second, the trial court’s statements at the hearing indicate[d] that it
applied the correct standard. The court concluded that the elements of
implied malice murder ‘were satisfied with the evidence that was brought out
during the trial, and of course, I was the trial judge.’ As to Lopez’s mens rea,
the court stated that trial testimony showed that Lopez knew that voting
Frosty ‘no good’ meant Frosty ‘was basically marked for death.’ The foregoing
statements show that the court understood it was required to find the
elements of murder had been proved, not find merely that there was
sufficient evidence from which some hypothetical jury could make such
findings. Moreover, the trial court referenced the beyond a reasonable doubt
standard of proof and never used the words ‘substantial evidence,’ ‘sufficient
evidence,’ or made any other indication that it was applying a sufficiency of
the evidence standard.” (Lopez, supra, 56 Cal.App.5th at p. 952.)
On the other hand, in Rodriguez, the trial court, “[r]ather than find[ing]
beyond a reasonable doubt that Rodriguez had directly aided and abetted the
murder of Lopez, . . . determined only that ‘there is sufficient evidence in the
record to support an express malice murder theory.’ ” (Rodriguez, supra, 58
Cal.App.5th at p. 244.) The appellate court rejected the Attorney General’s
“generous interpretation of the court's language” and assertion the trial court
had, itself, made the requisite findings. (Ibid.) “As the Attorney General
points out, the [trial] court observed that the issue to be decided was whether
a theory of liability existed other than natural and probable consequences
‘that could still support beyond a reasonable doubt’ a conviction for second
degree murder, and subsequently stated it was required to review the record
to determine ‘whether or not there is evidence in the record beyond a
reasonable doubt that could support a murder conviction.’ But both of those
formulations of the standard used the phrase ‘could support’—the appellate

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standard of review—not ‘does support beyond a reasonable doubt’ or
equivalent language, which would indicate the court had actually found the
evidence established Rodriguez was guilty of murder as a direct aider and
abettor. None of the court’s other comments suggests it understood its
obligation to make a finding of guilt, not simply a determination that a trier
of fact, applying the beyond a reasonable doubt standard, could make such a
finding. To the contrary, the court’s determination that Rodriguez’s motive to
commit murder was ‘supported by substantial evidence’ and its statement
toward the end of the hearing that Rodriguez ‘is entitled to be resentenced if,
in fact, there is no other evidence in the record that could support any
alternative theory,’ as well as its ultimate ruling, reveal the court’s
application of the incorrect standard.” (Id. at pp. 244-245.)
In our view, the record in the instant case is more like that in Lopez
than in Rodriguez. As we have recited, it is clear the trial court understood
the prosecutor had the burden of proof and had to prove beyond a reasonable
doubt that defendant was ineligible for resentencing. The parties argued,
respectively, whether the evidence proved the two requisite elements now
required for felony murder, and the trial court discussed and weighed this
evidence. The court then expressly found defendant was a major participant
in the robbery. And while the trial court did not use this exact language in
discussing whether defendant also acted with reckless disregard for human
life, we conclude the court so found. The court’s language is not the language
of substantial evidence review, and no talismanic language is required where,
as here, the only fair reading of the court’s language, in context, is that it
engaged in fact-finding. (See Lopez, supra, 56 Cal.App.5th at p. 952
[significant that trial court did not use language indicative of substantial
evidence review].)

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 It is true, as defendant points out, that the prosecutor asserted she did
not have to prove “beyond a reasonable doubt that Mr. Miller was a major
participant and acted with reckless indifference.” But, as the Attorney
General points out, the court did not agree with the prosecutor’s articulation,
but said she had articulated her “burden in a roundabout way” and that her
burden was to prove “beyond a reasonable doubt that the petitioner is
ineligible for resentencing,” the exact terminology of the statute. (See (Lopez,
supra, 56 Cal.App.5th at pp. 951-952 [trial court’s recitation of the statutory
language indicated it understood its fact-finding role].)
DISPOSITION
The order denying defendant’s petition for resentencing is AFFIRMED.

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 _________________________
Banke, J.

We concur:

_________________________
Humes, P.J.

_________________________
Sanchez, J.

A159345, People v. Miller

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