Filed 3/7/22 P. v. Cummings CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or or dered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299490
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA038352-02)
MILTON CUMMINGS III,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David C. Brougham, Judge. Reversed and
remanded.
Thomas Owen, 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, Senior
Assistant Attorney General, Idan Ivri, Acting Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
Years ago, a trial jury found Milton Cummings III
(defendant) guilty of murder and found true a special
circumstance allegation, which triggered a life without parole
sentence. More recently, defendant filed a petition to vacate his
murder conviction in light of amendments Senate Bill No. 1437
(2017-2018 Reg. Sess.) made to the Penal Code’s murder statutes.
The trial court summarily denied the petition without first
appointing counsel, relying on this court’s prior holding that the
jury was told it must find defendant intended to kill the murder
victim in order to find the special circumstance true. We initially
affirmed, but our Supreme Court granted review and transferred
the matter back to us with instructions to vacate our opinion and
reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th
952 (Lewis). Our prior opinion is hereby vacated, and the
dispositive question that we now decide is whether the failure to
appoint counsel for defendant was harmless.
I. BACKGROUND
In 1998, the Los Angeles County District Attorney charged
defendant with murder, attempted murder, shooting at an
occupied motor vehicle (Pen. Code,1 § 246), and permitting
another to shoot from a vehicle (former § 12034, subd. (b)) in
connection with a September 1997 gang-related drive-by
shooting. A co-defendant, Samont Lamont Winn (Winn), was a
member of the same criminal street gang as defendant and
charged with murdering the same victim. The information
alleged the victim’s murder was perpetrated by means of
discharging a firearm from a motor vehicle with intent to inflict
1
Undesignated statutory references are to the Penal Code.
2
death, a special circumstance that would call for at least a life
without parole sentence if found true. (§ 190.2, subd. (a)(21).)
According to the evidence presented at trial, defendant was
driving a vehicle when Winn, a passenger in the car, spotted the
murder victim in another car and believed he was a member of a
rival gang. Winn told defendant he was “gonna get him [i.e., the
victim]” and “gonna do him,” and as defendant later drove
alongside the victim’s car, Winn fired five to seven gunshots into
the other car, killing the victim and wounding another
passenger.2
Defendant’s jury was instructed on principles of direct
aiding and abetting with CALJIC No. 3.01. The jury was also
instructed on the natural and probable consequences doctrine
(CALJIC No. 3.02) and on second degree felony murder principles
(CALJIC Nos. 8.32 and 8.34). As to the special circumstance
allegation, defendant’s jury received a written instruction that
was an unmodified version of CALJIC No. 8.81.21,3 but as we will
2
This court previously granted the Attorney General’s
motion to take judicial notice of our prior opinion and the record
in defendant’s direct appeal from his convictions at trial, Court of
Appeal case number B125529, plus a subsequent habeas
proceeding, case number B282768.
3
The written instruction read: “To find that the special
circumstance, referred to in these instructions as murder by
means of an intentional discharge of a firearm from a motor
vehicle, is true, it must be proved: [¶] 1. The murder was
perpetrated by means of discharging a firearm from a motor
vehicle; [¶] 2. The perpetrator intentionally discharged the
firearm at another person or persons outside the vehicle;
3
momentarily discuss in greater detail, the instructions as given
orally by the court and the arguments as made by counsel
informed the jury it must find defendant had the intent to kill in
order to find the alleged special circumstance true. The jury
found defendant guilty of murder (and all other counts on which
it was asked to make a finding) and found the associated special
circumstance true.
On direct appeal, defendant argued the jury’s special
circumstance true finding should be reversed because the written
instruction the jury was given did not require the jury to find
defendant, as an aider and abettor in the murder, had the intent
to kill in order to find the special circumstance true as to him.
This court held there was no error in instructing the jury because
the record as a whole demonstrated the jury understood it must
find defendant had the intent to kill to find the special
circumstance true. We quote the pertinent excerpts from the
prior opinion at length:
“The trial court orally instructed both juries [defendant and
Winn were tried using two juries] simultaneously. It read to the
juries a modified version of CALJIC No. 8.81.21 relating to the
special circumstance of murder by means of discharging a firearm
from a motor vehicle. As modified, the instruction stated that in
order to find the special circumstance true, the jury had to find
that ‘[t]he perpetrator or any aider and abettor intended to inflict
death at the time the firearm was discharged.’ It had previously
discussed with all counsel the modification and all counsel had
indicated they had no objection to the modified version of the
and [¶] 3. The perpetrator, at the time he discharged the firearm,
intended to inflict death.”
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instruction. The modification was designed to inform the jury
that both the perpetrator (Winn) and the aider and abettor
([defendant]) had to have intended to inflict death at the time the
firearm was discharged. After this modified instruction was read
to the juries, the attorneys argued the case to each jury
separately. The prosecutor and defense counsel for [defendant]
both repeatedly, clearly and specifically argued to the jury that it
was required to separately determine whether or not [defendant]
had an intent to kill before it could find the special circumstance
true. The trial court provided both juries with written jury
instructions. Winn’s jury received the modified written
instruction but [defendant’s] jury received an unmodified version
of CALJIC No. 8.81.21.
“The modification of CALJIC No. 8.81.21 so it would apply
to both Winn and [defendant] by using the word ‘or’ to refer
separately to each defendant was not error. It was understood by
the court and all counsel to apply to both defendants and to
require the jury to find each defendant had an intent to kill
before it could find the special circumstance true. No objection to
the final wording was made and the argument of counsel reflects
that counsel understood the meaning of the instruction as read to
each jury. If trial counsel found the instruction objectionable, he
was obligated to request further modification at trial. [Citation.]
“Defendant[’s] . . . argument on appeal in this regard
invokes hypertechnical rules of grammar relating to conjunctive
versus disjunctive terms and ignores the context within which
the instructions were read to the jury, which included detailed
argument by trial counsel. No error occurred when the trial court
read the instruction to the jury.
5
“Even if error occurred in the trial court’s modification of
CALJIC No. 8.81.21 that it read to the jury, or in the court’s
failure to include the modification in the package of written
instructions provided to [defendant’s] jury, it is clear that no
prejudice occurred. The record shows the jury knew it had to
specifically find that the aider and abettor ([defendant]) had the
intent to kill before it could return a true finding on the special
circumstance allegation. [¶] . . . [¶]
“In this case the parties recognized intent to kill was at
issue and presented all the evidence they could on that issue.
Both counsel focused the attention of the jury on that issue in
argument. It is therefore clear that the jury was well aware it
had to find [defendant] intended to kill in order to find the special
circumstance to be true. Moreover, the evidence that [defendant]
acted with the intent to kill is overwhelming.” (People v. Winn et
al. (Jul. 12, 1999, B125529) [nonpub. opn.].)
Twenty years after this court’s decision on direct appeal,
defendant filed a section 1170.95 petition seeking to vacate his
murder conviction. The petition asserts defendant was not the
murder victim’s actual killer, he did not harbor the intent to kill,
and he was not a major participant in the murder who acted with
reckless indifference to human life. The petition requested the
trial court to appoint counsel to assist him.
The trial court denied the petition without appointing
counsel. Relying on its review of the “court file,” the court
reasoned the trial jury was required to find, and necessarily
determined in finding the special circumstance true, that
defendant had the intent to kill—making him ineligible for
Senate Bill 1437 relief.
6
II. DISCUSSION
People v. Lewis holds a trial court must appoint counsel for
a section 1170.95 petitioner upon the mere filing of a facially
sufficient petition. (Lewis, supra, 11 Cal.5th at 957; see also
section 1170.95, subd. (b)(3).) That was not done here, and under
Lewis, we accordingly confront undisputed error. The only
question, therefore, is whether the error was harmless. The test
for that is whether defendant has demonstrated a reasonable
probability that in the absence of the error (i.e., the failure to
appoint counsel) he would have obtained a more favorable result.
(Id. at 974.) We believe this reasonable probability exists here
and requires a remand. (People v. Watson (1956) 46 Cal.2d 818,
836-837 [probability does not mean more likely than not, but
merely a reasonable chance, something more than an abstract
possibility]; see also People v. Beck and Cruz (2019) 8 Cal.5th
548, 668.) Although the impact appointed counsel might make
can be difficult to judge counterfactually, we are persuaded there
is a reasonable chance counsel can fashion arguments
(particularly concerning the permissible use of this court’s prior
opinion on direct appeal) or proffer new evidence that may lead to
a more favorable result. We briefly explain.
The Attorney General’s argument for affirmance on
harmlessness grounds relies heavily on conclusions another panel
of this court drew in resolving defendant’s direct appeal over 20
years ago. If counsel were appointed for defendant, however,
counsel has available arguments, with a reasonable chance of
succeeding, that such reliance is not proper—at least at the
prima facie stage of section 1170.95 consideration. (See,
e.g., § 1170.95, subd. (d)(3) [“The court may also consider the
procedural history of the case recited in any prior appellate
7
opinion”], italics added; Lewis, supra, 11 Cal.5th at 972
[“Appellate opinions . . . are generally considered to be part of the
record of conviction. (See People v. Woodell (1998) 17 Cal.4th
448, 454-455[ ].) However, as we cautioned in Woodell, the
probative value of an appellate opinion is case-specific, and ‘it is
certainly correct that an appellate opinion might not supply all
answers’”].) In light of recent changes in the law made by Lewis
and Senate Bill No. 775 (2020-2021 Reg. Sess.) (which amended
section 1170.95, subdivision (d)(3) as quoted above), the Attorney
General’s related preclusion and law of the case arguments are
not well taken. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72,
94; People v. Berg (2019) 34 Cal.App.5th 856, 875, fn. 20.) In
addition, defendant, with the benefit of appointed counsel, has a
reasonable chance of availing himself of the provision in section
1170.95 that allows a petitioner to come forward with new
evidence not introduced during trial. (§ 1170.95, subd. (d)(3); 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.)
With these recent changes in the law, we lack the requisite
confidence that failure to appoint counsel for defendant, and
summary denial of the petition at the prima facie consideration
stage, was harmless. We express no view on whether defendant’s
request for section 1170.95 relief should ultimately carry the day.
We hold only that a remand is required to permit appointment of
counsel for defendant and further proceedings contemplated by
section 1170.95.
8
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the cause is remanded with directions to appoint
counsel for defendant, to permit the filing of an amended section
1170.95 petition if appointed counsel so chooses, and to conduct
further proceedings consistent with section 1170.95, subdivision
(c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
I concur:
RUBIN, P. J.
9
People v. Cummings
B299490
MOOR, J., Concurring
Having considered the arguments included by the parties
in their briefs and supplemental letter briefs, I agree with the
majority opinion that the correct disposition is to remand the
matter to the trial court for appointment of counsel and further
proceedings. I do not join in all the particulars of the majority
opinion’s analysis.
MOOR, J.