Filed 3/23/22 P. v. Miller 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C093756
Plaintiff and Respondent, (Super. Ct. No. 11F01280)
v.
DARRELL MILLER,
Defendant and Appellant.
In June 2012, a jury found defendant Darrell Miller guilty of second degree
murder. (Pen. Code, § 187.)1 The jury found true a second degree drive-by murder
allegation (§ 190, subd. (d)) and a firearm use allegation (§ 12022, subd. (a)(1)). The
trial court sentenced defendant to a term of 21 years to life in state prison. In 2013, we
1 Undesignated statutory references are to the Penal Code.
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affirmed defendant’s conviction in an unpublished opinion. (People v. Miller (Dec. 2,
2013, C071700).)
In 2019, defendant, through counsel, filed a petition for resentencing under newly
enacted section 1170.95. The People filed a response and moved to dismiss the petition.
The court ordered additional briefing, defendant filed a reply, and after reviewing the
record of conviction, the trial court denied defendant’s petition.
Defendant timely appealed and now contends the trial court erred in determining
defendant failed to state a prima facie case. The People concede the issue and agree the
matter should be remanded for further proceedings. We accept the People’s concession.
PROCEDURAL BACKGROUND
On March 25, 2019, defendant, through counsel, filed a petition for resentencing
pursuant to section 1170.95. The People filed a response and moved the court to dismiss
the petition. The trial court then requested the parties submit additional briefing on the
issue, specifically the impact of this court’s opinion affirming the underlying judgment.
The court noted that, relevant to second degree murder, defendant’s jury was instructed
on two theories of liability: (1) direct aiding and abetting, and (2) the natural and
probable consequences doctrine.
The trial court found, however, that this court’s opinion affirmed defendant’s
conviction for second degree murder by concluding there was sufficient evidence to
convict him as a direct aider and abettor. Our opinion did not analyze any other theory of
liability. Thus, the trial court wondered, was defendant precluded from relief under
section 1170.95 as a matter of law, based on this court’s decision. Neither party
responded to the court’s inquiry.
On March 2, 2021, the trial court denied defendant’s petition without issuing an
order to show cause, finding him ineligible for relief as a matter of law. In reaching its
decision, the trial court noted “the Third District specifically held . . . that ‘the jury could
infer that defendant aided and abetted the murder by holding the gun before the shooting,
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identifying the victim, providing the motive, and in trying to conceal the weapon and
convince Allen not to talk to law enforcement after the shooting,’ [emphasis added].
That is the law of the case.”
The trial court thus concluded that because “the Third District clearly upheld the
second degree murder verdict against a challenge to the sufficiency of the evidence of
having directly aided and abetted the murder, the Third District has already determined
that defendant . . . is not a person who could not be convicted of second degree murder
under the [Senate Bill No. 1437] version of Penal Code § 188.”
DISCUSSION
Defendant contends the trial court erred by denying his petition without issuing an
order to show cause and conducting an evidentiary hearing. He argues the trial court
wrongly found him ineligible as a matter of law based on this court’s opinion in People v.
Miller, supra, C071700. The People concede the issue.
We agree the trial court erred by denying defendant’s petition without issuing an
order to show cause and conducting the required evidentiary hearing.
A. Legal Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised
the felony-murder rule in California “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 bill amended the definition of malice in
section 188, revised the definition of the degrees of murder to address felony-murder
liability in section 189, and added section 1170.95, “which provides a procedure by
which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions.” (People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
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Section 1170.95, subdivision (a)(1)-(3) states that a person convicted of felony
murder or murder under a natural and probable consequences theory may file a petition
with the court for resentencing “when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person's participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of
murder, attempted murder, or manslaughter following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could have been convicted of murder or attempted
murder.. [¶] (3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1, 2019.”
Section 1170.95, subdivision (b), requires the petitioner to submit a declaration
that avers eligibility for relief under the statute (based on the requirements of subdivision
(a)) and states the superior court case number, the year of conviction, and whether the
petitioner requests appointment of counsel. Subdivision (b)(3), which dictates how the
court must handle the petition, reads: “Upon receiving a petition in which the
information required by this subdivision is set forth or a petition where any missing
information can readily be ascertained by the court, if the petitioner has requested
counsel, the court shall appoint counsel to represent the petitioner.” (§ 1170.95, subd.
(b)(3).) “Within 60 days after service of a petition that meets the requirements set forth
in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file
and serve a reply within 30 days after the prosecutor's response is served. These
deadlines shall be extended for good cause. After the parties have had an opportunity to
submit briefings, the court shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause. If the court
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declines to make an order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.” (§ 1170.95, subd. (c).)
Section 1170.95, subdivision (d)(1) provides that a hearing to determine whether
to vacate the murder conviction, recall the sentence, and resentence the petitioner as
needed should be held within 60 days after the order to show cause; and the prosecution
bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. At the hearing, “the court may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed. The court may also
consider the procedural history of the case recited in any prior appellate opinion. . . . The
prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens.” (Id., subd. (d)(3).)
B. Analysis
Here, the trial court denied defendant’s petition after reviewing the trial transcript
and this court’s opinion on appeal. The trial court determined the facts presented in those
documents were sufficient to establish defendant was not entitled to resentencing under
section 1170.95 as a matter of law. The trial court reasoned that because this court found
sufficient evidence to convict defendant of second degree murder on a direct aiding and
abetting theory of murder and did not mention the natural and probable consequences
doctrine, defendant was necessarily convicted as a direct aider and abettor. This
reasoning is flawed.
As the People acknowledge, the jury also was instructed on the natural and
probable consequences doctrine. Thus, it is possible defendant was convicted on that
theory of murder and our decision in People v. Miller, supra, C071700 does not rule out
that possibility. Accordingly, we agree with both parties: the case should be remanded
for further proceedings in compliance with recently amended section 1170.95.
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DISPOSITION
The trial court’s postconviction order denying defendant’s resentencing petition is
reversed. The matter is remanded with directions to issue an order to show cause and
hold a hearing under section 1170.95, subdivision (d), as amended by Stats. 2021, ch. 551
(Senate Bill No. 775).
/s/
RAYE, P. J.
We concur:
/s/
MAURO, J.
/s/
HOCH, J.
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People v. Miller CA3
Combined Opinion