People v. Miller CA2/3

Filed 4/15/21 P. v. Miller 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B300200

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA112805-03
v.

HERBERT CHARLES MILLER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.

Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Charles S. Lee and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 Herbert Charles Miller appeals from the superior court’s
order denying his petition under Penal Code section 1170.95. 1
That statute allows certain defendants convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine to petition the court to vacate their convictions and for
resentencing. Here, the trial court properly determined Miller
is not eligible for resentencing as a matter of law because the jury
found true a multiple-murder special circumstance allegation
within the meaning of section 190.2, subdivision (a)(3). That
finding means the jury found Miller—even if not the actual
shooter of either victim—acted with the intent to kill. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Around 8:15 p.m. on November 9, 2005, Nakia Wheeler
pulled his SUV into his driveway in Compton.2 Wheeler was
known to be a marijuana dealer. Wheeler’s friend Michael
Leggette was there that night, either in Wheeler’s SUV with
him or waiting for him in front of his house. (Miller I.)
One of Wheeler’s neighbors saw “silhouettes” on his
driveway and heard four or five people—including Wheeler—
arguing in “ ‘an angry confrontation.’ ” Neighbors then heard
gunshots from what sounded like two weapons; witnesses
saw two people outside a dark car firing weapons. Witnesses
had seen the same car—a black Pontiac Grand Am with tinted

1 References to statutes are to the Penal Code.
2 We summarize the facts from our 2014 opinion affirming
Miller’s conviction, People v. Miller et al. (Feb. 7, 2014, B232167)
[nonpub. opn.] (Miller I). We previously granted Miller’s request,
filed concurrently with his opening brief, that we take judicial
notice of “[t]he record in appellant’s first appeal, . . . including
the clerk[’]s and reporter’s transcripts, the Court of Appeal’s
opinion and appellant’s briefs.”

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rear windows—drive down the street earlier that evening.
When the Grand Am passed by earlier, a man in the passenger
seat asked some teenage boys who were standing on the street
if they were affiliated with a tagging crew. The boys said no,
and someone in the car shouted, “this is Nutty Blocc Compton
Crip” or “Nutty Blocc.” (Miller I.)
Leggette was found lying unconscious on the front lawn
of a nearby home. He died from a gunshot wound to his back.
Wheeler was found face down on the ground in a nearby
backyard. He had been shot in the back, arm, and elbow.
He also died from his wounds. Even though Wheeler’s SUV
“reeked of marijuana,” authorities found “no sizable amount”
of the drug in the SUV. Wheeler’s pants contained only $11,
and a single $5 bill was found on his front lawn. (Miller I.)
Within minutes of the shooting, a neighbor who was
one of Wheeler’s regular customers saw two men she knew—
Javone Brown and Jeffrey McLeod—run past her along with
a third man she didn’t know. The next morning she heard
Brown and McLeod laughing and bragging to members of
the Nutty Blocc Crip gang that they had “ ‘hit a lick’ ”; she
told police Brown and McLeod said they got a lot of money
by robbing Wheeler. (Miller I.)
The Nutty Blocc Crips is one of the oldest gangs in
Compton. Miller, Brown, and McLeod all belong to the gang.
(Miller I.)
A Nutty Blocc member identified as “D.H.” had been
McLeod’s friend for years; he also knew Miller. The morning
after the killings, McLeod told D.H. that he, Miller, and Brown
had robbed and killed Wheeler. Before the killings, D.H. had
seen Miller with a black AK-47 rifle. D.H. had once borrowed
the gun from Miller. Miller described the model as a “ ‘30-30.’ ”
(Miller I.)

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 Miller owned a black Pontiac Grand Am with tinted rear
windows. “No one else in the neighborhood owned a car that
looked like his car.” Three days after the killings Miller had
the car painted gold. (Miller I.)
A day or two after the killings, Miller told a 14-year-old
neighbor whom he had forced to have sex with him to tell
Wheeler’s mother that she’d seen “ ‘some Mexicans rob and
shoot’ ” her son, but the girl refused. (Miller I.)
Several years later, when D.H. was transported from
jail to the courthouse to testify at Miller’s preliminary hearing,
Miller—who was on the same bus—spat on D.H. and told him
not to testify because “ ‘you know what happens to snitches.’ ”
(Miller I.) Miller also wrote letters to Brown’s girlfriend “urging
her not to take the oath” and instructing her “on how to testify.”
(Ibid.)
The People charged Miller, Brown, and McLeod with
the murders of Wheeler and Leggette. The People alleged the
offenses were “a special circumstance within the meaning of
Penal Code Section 190.2(a)(3),” multiple murder. The People
also alleged the defendants committed the crimes for the benefit
of, at the direction of, and in association with a criminal street
gang and that a principal used and discharged a firearm causing
death to the victims. The People alleged Miller had two prior
strikes for attempted robbery and assault with a deadly weapon.
The case went to trial in 2010. As we said in Miller I,
“[t]he evidence tended to show Brown and McLeod had been
the gunmen,” and “Miller had been driving the car.” Ballistics
evidence showed two guns had been fired at the scene: a .45
caliber semiautomatic handgun and a semiautomatic rifle. Five
spent .45 caliber cartridge cases were found outside Wheeler’s
home and two spent 7.62 by 39 millimeter rifle cartridge cases

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were found in the street. A Ruger Mini 30 rifle is one of the
weapons that typically fires a 7.62 by 39 millimeter bullet. (Ibid.)
The jury convicted Miller and his co-defendants of
the first degree murders of Wheeler and Leggette and found
the special circumstance, gang, and firearm allegations true.
The trial court sentenced Miller to two terms of life without the
possibility of parole, plus two terms of 25 years to life for the
firearm enhancements, to be served concurrently. (See Miller I.)
As noted, we affirmed Miller’s conviction. We held
substantial evidence supported the defendants’ convictions
for first degree murder as well as the multiple murder special
circumstance finding as to Miller.3 (Miller I.) We noted section
190.2, subdivision (c), “requires that an aider and abettor who
is not the actual killer must have acted with the intent to kill.
(People v. Souza (2012) 54 Cal.4th 90, 110, fn. 6 [for an aider and
abettor who did not actually kill the victims, multiple murder
special circumstance requires an additional finding of intent
to kill].)” (Miller I.) Rejecting Miller’s contention that “ ‘the
jury necessarily based its verdict on a felony-murder aiding
and abetting theory, the murders [having] occurred during
a robbery,’ ” we concluded:
“[T]here was sufficient evidence to sustain
Miller’s conviction for premeditated and
deliberate murder. The trial court instructed
the jurors they could find the multiple-murder
special circumstance allegation true, as to
a defendant who did not actually kill either

3 It does not appear Brown or McLeod challenged the
sufficiency of the evidence on the multiple murder special
circumstance on appeal. (Miller I [Miller contends finding
must be reversed].)

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 victim, only if they found the defendant acted
with intent to kill. Miller does not challenge
the correctness of the trial court’s instructions.
Since the properly instructed jury found
his multiple murder special circumstance
allegation true, it must have concluded Miller
was guilty of a premeditated and deliberate
killing rather than just an accidental killing.”
(Ibid.)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)
took effect, Miller’s trial counsel, on April 22, 2019, filed on
his behalf a pleading entitled “Petition for Resentencing (P.C.
1170.95).” The petition essentially recited the language of
the statute, including a statement, “The defendant did not, with
the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in
the first degree.” Counsel also stated, “I have received a written
request from the defendant, asking that this court appoint me
to represent Mr. Miller during this re-sentencing process.”
Miller did not sign or verify the petition. (See § 1170.95,
subd. (b)(1)(A) [“The petition shall include all of the following:
(A) A declaration by the petitioner that he or she is eligible
for relief under this section, based on all the requirements of
subdivision (a).”].) Instead, counsel stated, “I declare under
penalty of perjury that the above is true except as to that stated
on information or belief or that which is legal conclusion and
as to those, I believe them to be true.” The petition had no
attachments or exhibits.
The trial court did not appoint counsel for Miller. On
June 26, 2019, the court issued a minute order denying Miller’s
petition. The court stated,

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 “The jury not only found the petitioner guilty
of first degree murder but also found true,
the special circumstance under 190.2(a)(3),
multiple murder special-circumstance.
The jury was instructed that they could find
the multiple-murder special circumstance
allegation true, as to the defendant who did
not actually kill either victim, only if they
found the defendant acted with the intent
to kill. (See CALCRIM No. 702.) In fact, by
finding the allegation to be true, the jury had
to have found that petitioner, even if not the
actual killer, acted with the intent to kill. [¶]
Therefore, due to the jury’s findings as stated
and pursuant to Penal Code section 189(e)(3),
the petitioner does not qualify for resentencing
to Penal Code section 1170.95.”
DISCUSSION
SB 1437 took effect on January 1, 2019. (See Stats. 2018,
ch. 1015, § 4.) The purpose of the new legislation was “to
amend 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),
italics added; see People v. Larios (2019) 42 Cal.App.5th 956, 964,
review granted Feb. 26, 2020, S259983.) To accomplish this
purpose, SB 1437 amended section 188 to provide “[m]alice
shall not be imputed to a person based solely on his or her
participation in a crime.” (Stats. 2018, ch. 1015, § 2; § 188,
subd. (a)(3).) SB 1437 also added section 189, subdivision (e),

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which provides that a person is liable for murder “only if one of
the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (Stats. 2018, ch. 1015, § 3; see Larios, at p. 964.)
Evaluation of a section 1170.95 petition requires a
multi-step process: an initial review to determine the petition’s
facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
determine preliminarily whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has
made a prima facie case that he is entitled to relief. (People
v. Tarkington (2020) 49 Cal.App.5th 892, 897, review granted
Aug. 12, 2020, S263219; People v. Verdugo (2020) 44 Cal.App.5th
320, 327-330 (Verdugo), review granted Mar. 18, 2020, S260493;
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) If the
petitioner makes such a showing, the court must issue an order
to show cause and conduct a hearing to determine whether
to vacate the murder conviction and resentence the petitioner
on any remaining counts. (§ 1170.95, subds. (c), (d); Nguyen,
at pp. 1165-1166.)
A number of appellate courts have held a court considering
a resentencing petition properly may “examine readily available
portions of the record of conviction to determine whether a prima
facie showing has been made that the petitioner falls within the
provisions of section 1170.95.” (Verdugo, supra, 44 Cal.App.5th
at p. 323; see also People v. Lewis (2020) 43 Cal.App.5th 1128,
1137-1139 (Lewis) [record of conviction includes court of appeal’s

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opinion on direct appeal], review granted Mar. 18, 2020, S260598;
People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions
are part of record of conviction], review granted Sept. 23, 2020,
S263939.) The issue is currently before our Supreme Court,
which has granted review in Lewis. One issue the high court
has designated is: “May superior courts consider the record of
conviction in determining whether a defendant has made a
prima facie showing of eligibility for relief under Penal Code
section 1170.95?” (Lewis, S260598.)
We need not wade into this controversy here because Miller
himself has asked us to take judicial notice of the record in his
first appeal. That record of course includes the jury instructions
and verdict forms.
Miller’s jury found true the special circumstance of
multiple murder. The trial court instructed the jury with—
among many other instructions—CALCRIM Nos. 700, 702, 704,
705, and 721. CALCRIM No. 702 as given to the jurors here
told them:
“If you decide that a defendant is guilty of
First Degree Murder but was not the actual
killer, then, when you consider the Special
Circumstance of More Than One Offense of
Murder, you must also decide whether the
defendant acted with intent to kill. [¶] . . . [¶]
In order to prove this Special Circumstance
for a defendant who is not the actual killer but
who is guilty of first degree murder as an aider
and abettor, the People must prove that the
defendant acted with the intent to kill. [¶]
If the defendant was not the actual killer, then
the People have the burden of proving beyond
a reasonable doubt that he acted with the

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 intent to kill for the special circumstances of
More Than One Offense of Murder to be true.
If the People have not met this burden, you
must find this Special Circumstance has not
been proved true for that defendant.”4
As the court here noted, in finding true the multiple
murder special circumstance, the jury found Miller acted with
the intent to kill. As we have said, SB 1437 by its express terms
denies relief to a person who “was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in
the commission of murder in the first degree.” (Stats. 2018,
ch. 1015, § 3; § 189, subd. (e)(2).) Accordingly, Miller is ineligible
for resentencing as a matter of law. (See Verdugo, supra, 44
Cal.App.5th at p. 336 [affirming summary denial of petition
where jury found defendant had acted with express malice];
People v. Roldan (2020) 56 Cal.App.5th 997 [defendant failed
to make requisite prima facie showing of eligibility when he

4 The court also instructed the jury with CALCRIM Nos. 400
and 401, aiding and abetting. The court did not instruct the jury
on the natural and probable consequences doctrine. In addition,
the court gave CALCRIM Nos. 540A [felony murder: first degree
—defendant allegedly committed fatal act (presumably applicable
to Brown and McLeod)], 540B [felony murder: first degree—
coparticipant allegedly committed fatal act], 548 [murder:
alternative theories (malice aforethought and felony murder)],
and 1600 [robbery]. Because the People did not allege a special
circumstance of felony murder, the trial court correctly instructed
the jury with CALCRIM No. 702 rather than No. 703. (See
Bench Notes to CALCRIM No. 702 [“When the felony-murder
special circumstance is charged, use CALCRIM No. 703, Special
Circumstance: Intent Requirement for Accomplice After June 5,
1990—Felony Murder.”].) As we noted in Miller I, Miller raised
no claim of instructional error on appeal.

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was convicted of second degree murder under actual implied
malice theory], review granted Jan. 20, 2021, S266031; People
v. Swanson (2020) 57 Cal.App.5th 604, 608, 613 [defendant
convicted of first degree murder under provocative act doctrine
ineligible for relief as a matter of law because that doctrine
“ ‘requires proof that the defendant personally harbored the
mental state of malice’ ”], review granted Feb. 17, 2021, S266262;
People v. Falcon (2020) 57 Cal.App.5th 272, 274-277 [defendant
failed to make prima facie showing of eligibility for relief where
preliminary hearing transcript established defendant acted
as direct aider and abettor to actual shooter], review granted
Jan. 27, 2021, S266041.)
Finally, Miller contends the trial court also erred in not
appointing counsel for him. This issue too is before our Supreme
Court in Lewis: “When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?” (Lewis,
supra, S260598.) Some courts have held that, where the record
of conviction demonstrates a petitioner is ineligible for relief
as a matter of law, the court need not appoint counsel and may
summarily deny the petition. (Verdugo, supra, 44 Cal.App.5th
at pp. 323, 332-333, 336; Lewis, supra, 43 Cal.App.5th at
pp. 1139-1140; but see People v. Cooper (2020) 54 Cal.App.5th
106, review granted Nov. 10, 2020, S264684.)
We need not reach this issue because—in light of the jury
instructions and the jury’s verdict finding beyond a reasonable
doubt that Miller acted with the intent to kill—any error in
not appointing counsel for him is harmless in any event. (People
v. Daniel (2020) 57 Cal.App.5th 666, 670, 673, 676-678 [jury
instructions demonstrated petitioner was ineligible for relief
as a matter of law; thus, failure to appoint counsel for him
was harmless under People v. Watson (1956) 46 Cal.2d 818],
review granted Feb. 24, 2021, S266336.)

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 DISPOSITION
We affirm the superior court’s order denying Herbert
Charles Miller’s petition to vacate his murder conviction and
for resentencing under Penal Code section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

I concur:

ADAMS, J.


Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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LAVIN, J., Concurring and Dissenting:

A petition under Penal Code1 section 1170.95 must allege
the following: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could be convicted for first degree or second degree
murder[;] [¶] [and] (3) The 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)(1)–
(3).) The petition must also include the petitioner’s declaration
showing eligibility under all three enumerated conditions, as well
as the superior court case number, year of conviction, and any
request for appointment of counsel. (§ 1170.95, subd. (b)(1)(A);
People v. Ramirez (2019) 41 Cal.App.5th 923, 929.)
Here, the petition did not include a declaration by Herbert
Miller, the petitioner, that he was eligible for relief under section
1170.95. Instead, the petition included statements by Paul
Cohen—who sought to be appointed as Miller’s attorney—
concerning Miller’s purported eligibility for relief. Because the
petition was missing required information, Miller did not make a
prima facie showing of entitlement to relief and the trial court
should have denied the petition without prejudice. (See § 1170.95,
subd. (b)(2).) I would, therefore, modify the court’s order to clarify
that the denial of Miller’s petition is without prejudice to the
filing of another petition, and that the matter cannot be

1 Undesignated statutory references are to the Penal Code.
considered without Miller’s declaration. As so modified, I would
affirm the order.

LAVIN, Acting P. J.

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