Filed 7/12/22 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311704
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA081639)
v.
STEVEN RICHARD MILLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Reversed and
remanded with directions.
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Steven Richard Miller was charged with murder
in connection with the strangulation death of his estranged wife,
Blaza Rene Miller (Blaza).1 He pled guilty to second degree
murder and admitted several prior convictions as part of a
negotiated plea agreement. Appellant and his counsel stipulated
that the preliminary hearing transcript, police report, and
probation report contained a factual basis for appellant’s plea.
Appellant subsequently filed a petition for resentencing
under Penal Code section 1170.95.2 Appellant requested
appointment of counsel and attested in a declaration that the
prosecution proceeded under the felony murder rule or natural
and probable consequences doctrine, and he could not now be
convicted of murder because he did not act with the intent to kill.
The trial court summarily denied the petition in a written
order without appointing counsel or receiving further briefing. It
determined the allegations in appellant’s petition were too
conclusory and lacking in basis to warrant an evidentiary
hearing. It further concluded that the information, preliminary
hearing transcript, and sentencing hearing transcript showed
that appellant was not prosecuted under the felony murder rule
or natural and probable consequences doctrine, and the only
plausible theory of liability was that he intended to kill Blaza.
The court also cited inculpatory remarks appellant made at his
sentencing hearing.
Appellant contends the court erred by failing to appoint
counsel, engaging in improper factfinding, and relying on the
1 We refer to Blaza by her first name to avoid confusion. No
disrespect is intended.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
remarks he made at the sentencing hearing. He further contends
the errors were not harmless because it is reasonably probable
that the petition would not have been summarily denied if he had
been appointed counsel. We agree and reverse. As respondent
Attorney General concedes, the court erred by failing to appoint
counsel when appellant requested it in his facially sufficient
petition. The error was not harmless because the record of
conviction, which does not include appellant’s remarks at
sentencing, does not foreclose relief as a matter of law. We
remand the case to the trial court to issue an order to show cause
pursuant to section 1170.95, subdivision (c) and hold a hearing in
accordance with section 1170.95, subdivision (d)(3).
BACKGROUND
I. Preliminary Hearing
The court held a preliminary hearing on January 13 and
17, 2012. The following facts were adduced.3
According to Blaza’s fiancé, Randall Badger, Blaza lived in
an extended-stay hotel in Torrance with her dog and worked as
an escort. Badger often paid for the hotel but lived elsewhere.
3 Appellant “submits there are no facts in the record of the
conviction based upon appellant’s no contest plea” pursuant to
People v. West (1970) 3 Cal.3d 578 (West), under which a
defendant does not admit a factual basis for a plea. (See People v.
Rauen (2011) 201 Cal.App.4th 421, 425.) However, the reporter’s
transcript of the plea hearing shows that appellant pled guilty,
not no contest. The minute order documenting the hearing
mentions West, but that appears to have been in error, as it also
contains a nunc pro tunc correction striking reference to a plea of
nolo contendre and replacing it with “plea of guilty entered.” At
appellant’s sentencing hearing, both the prosecutor and
appellant’s counsel corrected the court when it erroneously stated
the plea was no contest.
3
Blaza was still married to appellant but had “put a divorce decree
together.” She told Badger she feared “violence” from appellant
due to his previous conviction for spousal abuse.
Although they had not seen one another in person since
February 2011 due to transportation difficulties, Badger and
Blaza spoke at least once a day. During a conversation shortly
before her death, Blaza complained to Badger about appellant
“eating all of her food and spending her money and not bringing
anything in.”
Badger called Blaza for the last time on June 18, 2011.
Blaza told Badger she was “in the middle of something” and could
not talk. Badger was concerned about the tone of Blaza’s voice
and called her back several times, but she did not answer. A few
days later, detectives came to Badger’s residence and informed
him Blaza was dead. Badger provided DNA samples for the
detectives. One of the detectives testified that he examined
Badger’s cell phone and saw that Badger’s last phone call with
Blaza occurred around 2:21 p.m. on June 18, 2011.
Appellant’s parole agent, Shelbie Brooks, testified that
appellant was on parole in June 2011. His parole conditions
required him to wear a GPS ankle monitor and meet with Brooks
at least two times per month. Their last meeting occurred on
June 15, 2011; Brooks did not observe any noticeable injuries on
appellant at that time. On June 18, 2011, Brooks received a
“master tamper alert” indicating that appellant’s ankle monitor
had been tampered with or removed. After Brooks unsuccessfully
attempted to reach appellant on his cell phone, she searched the
monitoring database and learned that the tampering occurred at
5:52 p.m. and the monitor was currently stationary near the
interchange of the 110 and 405 freeways. A crime scene analyst
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for the monitoring database company later determined that the
device had been within 100 meters of Blaza’s hotel at 4:45 p.m. on
June 18, 2011.
On June 20, 2011, a hotel employee went to Blaza’s room
after phone calls to her room went unanswered. After his knocks
at the door also went unanswered, the employee opened the door
and saw an unresponsive person in the bed. He called his
manager, Saul Perez, to the room. Perez testified the dog was
gone when he entered the room, but Blaza was lying in bed with
a blanket over her face. When she did not respond to his verbal
calls, Perez tapped Blaza’s leg and realized it was cold. Perez
exited the room, locked the door, and called 911. Perez testified
that he had seen appellant “frequent” Blaza’s room and had last
seen him there “[p]ossibly a week before the incident.”
Torrance police officer Garrett Brinkley responded to the
hotel around 3:10 p.m. on June 20, 2011. He was told by a
firefighter already on the scene that a woman had been found
lying in bed with a sheet and pillow on top of her. The woman
had blood on her face and a cord around her neck.
Senior criminalist Eucen Fu also responded to the hotel on
June 20, 2011. He observed another senior criminalist, John
Bockrath, swab the ends of a white cord that was wrapped
around Blaza’s neck before he personally collected samples from
her wrists, hands, fingernails, hair, and a sexual assault kit.
Senior deputy medical examiner Dr. James Ribe performed
an autopsy of Blaza on June 22, 2011. He observed numerous
external injuries, including a bruise on her left forehead, a stab
wound through her right cheek, a narrow ligature mark all the
way around her neck, bruises on the backs of both hands, a small
cut on the back of her left pinky finger, an abrasion on the back of
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her right wrist, and a number of small bruises on her legs. Ribe
opined that the injuries on Blaza’s hands were “characteristic of
injuries sustained when a weaker assault victim attempts to
ward off an assailant who is striking blows at them.” Ribe also
observed internal injuries, including blunt force trauma to the
brain and hemorrhagic fractures of the thyroid cartilage. Ribe
opined that homicidal strangulation was the cause of death; the
fatal injury to Blaza’s neck could not have been self-inflicted. He
further opined that Blaza died at most a minute or two after her
thyroid cartilage was fractured, probably about one to two days
before her body was found.
Torrance detective Dennis Brady met appellant at the
Fresno County Sheriff’s Department on June 22, 2011. Appellant
had what appeared to be “fairly new” scratch marks on his neck
and forearms. Brady obtained DNA samples from appellant.
Senior criminalist John Bockrath performed DNA analysis
of the evidence collected in the case on June 23, 2011. Samples
from the neck ligature and Blaza’s fingernails contained a
mixture of Blaza’s and appellant’s DNA. Badger was excluded as
a contributor.
At the conclusion of the preliminary hearing, the
prosecution rested without making any argument. Appellant did
not offer any affirmative defense, but moved to dismiss the
charge due to insufficient evidence. The trial court denied the
motion to dismiss and found sufficient cause to believe appellant
committed murder.
II. Information
On February 2, 2012, the District Attorney of the County of
Los Angeles filed an information charging appellant with a single
count of murder (§ 187, subd. (a)) in connection with Blaza’s
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death. The charge did not specify a degree but alleged that
appellant “did unlawfully, and with malice aforethought murder
BLAZA MILLER, a human being.” The information further
alleged that appellant suffered a prior strike and serious felony
conviction (§§ 667, subds. (a)-(i), 1170.12, subd. (a)) and six prison
priors (§ 667.5, subd. (b)).
III. Plea and Sentence
On March 7, 2013, appellant completed a felony guilty plea
form indicating an intent to plead guilty to second degree murder
and admit five priors in exchange for the strike being stricken
and a negotiated sentence totaling 24 years to life.
The court held a plea hearing the same day. The
prosecutor engaged appellant in a colloquy about the charge,
allegations, and his rights. She also noted that his maximum
exposure on the charges and allegations, if he “were convicted of
first degree murder,” would be 59 years to life. Appellant stated
he understood. After appellant pled guilty and admitted the
priors, his counsel and the prosecution concurred in the plea and
stipulated “that a factual basis exists in the police reports,
preliminary hearing transcript, and probation reports.” The
court accepted appellant’s plea as voluntarily, knowingly, and
intelligently made and found a factual basis in the stipulated
documents.
The court held a sentencing hearing on April 18, 2013.
Blaza’s mother and sister made statements, and several of her
friends and family members submitted letters to the court.
Appellant also made a statement, in which he apologized to
Blaza’s family and friends, expressed “the deepest feeling of
shame and regret for taking the life of someone so special to us
all,” and stated that “nothing . . . excuses the fact that I took a
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life.” The court sentenced appellant to the negotiated sentence of
15 years to life for the murder, plus an additional consecutive
nine years for the priors. Appellant did not appeal his plea,
conviction, or sentence.
IV. Section 1170.95 Proceedings
A. Petition
Appellant filed a section 1170.95 petition on March 2, 2021.
He requested counsel and attached a declaration attesting that
the prosecution “asserted the theory of ‘felony murder’ or ‘natural
and probable consequences doctrine’ to charge [him] with second
degree murder,” and he could no longer be convicted of murder
because he “‘did not act with the intent to kill’ at the time of the
offense.”
B. Ruling
The court denied the petition by written order on March 5,
2021, without appointing counsel. The court concluded that its
review of “the felony information and the official sentencing and
preliminary hearing transcripts contained in the court file”
demonstrated that appellant was not prosecuted under either the
felony murder theory or the natural and probable consequences
doctrine. The court further stated that appellant’s “conclusory
allegations in his petition that he did not intend to kill and that
the prosecution asserted the theory of ‘felony murder or natural
and probable consequences doctrine’ made without any
explanation of the basis for the allegations do not warrant relief,
let alone an evidentiary hearing.” It added, “The only plausible
theory of liability is that Petitioner intended to kill Blaza Rene
Miller,” and quoted the remarks appellant made during the
sentencing hearing.
Appellant timely appealed.
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DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 1437) “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);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952,
959 (Lewis).) SB 1437 accomplished this task by adding three
provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th
830, 842 (Gentile).)
First, to amend the natural and probable consequences
doctrine, SB 1437 added section 188, subdivision (a)(3), which
requires a principal to act with malice aforethought before he or
she may be convicted of murder. (§ 188, subd. (a)(3); accord,
Gentile, supra, 10 Cal.5th at pp. 842-843.) Second, to amend the
felony murder rule, SB 1437 added section 189, subdivision (e),
which provides that a participant in the perpetration or
attempted perpetration of certain felonies in which a death
occurs may be liable for murder only if (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”; or (3) the person was a
major participant in the underlying felony and acted with
reckless indifference to human life. (§ 189, subd. (e).)
Finally, SB 1437 added section 1170.95, which permits
individuals who were convicted of felony murder or murder under
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a natural and probable consequences theory, but who could not
be convicted of murder following SB 1437, to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts. (§ 1170.95, subd. (a).) A petition for relief
under section 1170.95 must include a declaration by the
petitioner that he or she is eligible for relief under section
1170.95 based on all the requirements of subdivision (a), the
superior court case number and year of the petitioner’s
conviction, and whether the petitioner requests appointment of
counsel. (§ 1170.95, subd. (b)(1).)
If the petition satisfies those requirements, and the
petitioner has requested counsel, the court must appoint counsel.
(§ 1170.95, subd. (b)(3).) The prosecutor is also required to file a
response to the petition, and the petitioner may then file a reply.
(§ 1170.95, subd. (c).) The court then holds a hearing to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief. (Ibid.; see also Lewis,
supra, 11 Cal.5th at pp. 960-986.)
“[T]he ‘prima facie bar was intentionally . . . set very low.’”
(Lewis, supra, 11 Cal.5th at 972.) “Like the analogous prima
facie inquiry in habeas corpus proceedings, ‘“the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.”’” (Id. at 971, quoting People
v. Drayton (2020) 47 Cal.App.5th 965, 978 (Drayton).) In
assessing the petition at the prima facie stage, the court must not
engage in “‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, at 972, quoting Drayton, at 980.)
If the petitioner’s allegations are facially sufficient to state a
10
claim for relief, the court may refrain from issuing an order to
show cause “[o]nly where the record of conviction contains facts
conclusively refuting the allegations in the petition,” thereby
establishing the petitioner’s ineligibility for resentencing “as a
matter of law.” (People v. Flores (2022) 76 Cal.App.5th 974, 991-
992 (Flores).) The court’s authority to make factual
determinations without conducting an evidentiary hearing “is
limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime) . . . .” (Drayton, at
980.)
If the court finds the petitioner has made a prima facie
showing, it must issue an order to show cause and hold an
evidentiary hearing. (§ 1170.95, subds. (c)-(d).) At that hearing,
“the burden of proof shall be on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder ...
under California law as amended by [SB 1437].” (§ 1170.95,
subd. (d)(3).) If the prosecution fails to meet this burden, the
court must vacate the murder conviction and resentence the
petitioner on any remaining counts. (Ibid.)
II. Analysis
Appellant and respondent agree the trial court erred by
failing to appoint counsel for appellant. Such error is assessed
under the Watson harmless error test. (Lewis, supra, 11 Cal.5th
at pp. 973-974.) “More specifically, a petitioner ‘whose petition is
denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been
afforded assistance of counsel his [or her] petition would not have
11
been summarily denied without an evidentiary hearing.”’” (Id. at
p. 974.) Appellant asserts he has carried that burden here,
because the record of conviction, examined without premature
factfinding, does not foreclose relief as a matter of law.
Respondent disagrees, contending the record of conviction
establishes that “appellant pleaded guilty to murder based on a
theory he was the actual killer.”
A section 1170.95 petitioner convicted of murder based on a
plea is ineligible for resentencing “if the record establishes, as a
matter of law, that (1) the complaint, information, or indictment
did not allow the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences
doctrine, or another theory of imputed malice; (2) the petitioner
was not convicted under such theory; or (3) the petitioner could
presently be convicted of murder or attempted murder under the
law as amended by Senate Bill No. 1437.” (Flores, supra, 76
Cal.App.5th at p. 987.) None of these criteria is necessarily
established by the record of conviction.
The information charged appellant generically with
murder.4 It did not specify or exclude any particular theory of
murder, and thus did not prevent the prosecution from
proceeding under the felony murder rule or natural and probable
consequences doctrine, neither of which needs to be separately
pled. (People v. Rivera (2021) 62 Cal.App.5th 217, 233-234,
review dismissed Jan. 19, 2022, S268405 (Rivera); see also People
v. Eynon (2021) 68 Cal.App.5th 967, 977-978.) Respondent points
out that the information did not charge appellant with any other
4 The felony complaint, which is part of the record on appeal
but was not mentioned in the trial court’s order, contains an
identical charge.
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crime. However, it is not necessary to charge a target offense for
purposes of the natural and probable consequences doctrine (see
People v. Prettyman (1996) 14 Cal.4th 248, 266-267) or an
underlying felony for purposes of the felony murder rule (People
v. Silva (2001) 25 Cal.4th 345, 371).
Respondent also asserts “there is no mention in the record
of any underlying felony that could have been used as the basis
for felony murder liability, or any target offense or conduct that
could have formed the basis of liability under the natural and
probable consequences doctrine.” Respondent suggests the case
is analogous in this regard to People v. Perez (2020) 54
Cal.App.5th 896, 907 review granted Dec. 9, 2020, S265254
(Perez), in which witnesses at the preliminary hearing testified
they saw the defendant kill his wife by “repeatedly and forcefully
striking her in the head with a hammer.” The court in Perez held
that this evidence “shows Perez pleaded no contest to the murder
based on a theory he was the actual killer.” (Ibid.) Here,
however, no evidence adduced at the preliminary hearing
necessarily foreclosed the possibility that appellant was not the
actual killer or that Blaza was killed during the commission or
intended commission of another crime. Circumstantial evidence
certainly placed appellant at the scene, and strongly suggested he
killed Blaza. Even if appellant’s stipulation to the transcript as a
basis of his guilty plea admitted the truth of all the evidence (see
id. at pp. 905-906), it did not necessarily establish he was the
perpetrator or acted with express malice. His counsel’s isolated
reference to a potential future self-defense argument likewise did
not foreclose an implied malice theory.
As appellant observes, evidence adduced at the preliminary
hearing could support a theory that appellant entered Blaza’s
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room to take her food, or her dog, or even to assault her, and
others may have had access to her room. The prosecution gave
no explicit indication of which theory or theories it was pursuing.
To the contrary, while making a relevance objection to a question
about Blaza’s occupation, the prosecution kept its options open by
asserting, “this is largely a DNA case, and as far as we know, the
DNA evidence only points to one person, but it might lend [sic] to
a DNA issue, if that’s what counsel is going after.” The trial
court’s conclusion that “[t]he only plausible theory of liability is
that Petitioner intended to kill Blaza Rene Miller” required it to
make inferences, credibility determinations, and factual findings
not proper at the prima facie stage of the proceedings.
Respondent alternatively contends that appellant’s
statements at the sentencing hearing “demonstrate, without the
need for factfinding, that he was the actual killer.” We agree
with appellant, however, that these statements, which were not
made under oath, are not part of the record of conviction. In
People v. Trujillo (2006) 40 Cal.4th 165, 179, the Supreme Court
held that “a defendant’s statements, made after a defendant’s
plea of guilty has been accepted, that appear in a probation
officer’s report prepared after the guilty plea has been accepted
are not part of the record of the prior conviction, because such
statements do not ‘reflect[ ] the facts of the offense for which the
defendant was convicted.’” (See also People v. Roberts (2011) 195
Cal.App.4th 1106, 1127-1128 [“under the holding of Trujillo, the
unsworn statement by defendant’s then-wife was not part of the
record of conviction. That statement also occurred after the court
had accepted defendant’s guilty plea, timing which is critical in
determining that it is not part of the record of conviction”].)
Appellant’s statements here are analogous. Even if they are not,
14
the court erred in assessing and crediting their credibility at the
prima facie stage.
Because the record does not show as a matter of law that
appellant was ineligible for resentencing, we must remand the
case to the trial court to issue an order to show cause under
section 1170.95, subdivision (c) and hold an evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3). At the evidentiary
hearing, the trial court will not be compelled to credit appellant’s
allegations. (See Lewis, supra, 11 Cal.5th at 971 [court should
not reject petitioner’s factual allegations on credibility grounds
“‘without first conducting an evidentiary hearing’”].) We express
no opinion regarding appellant’s entitlement to relief.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing to determine
whether appellant is entitled to section 1170.95 relief. At that
hearing, “the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that [appellant] is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J. WILLHITE, J.
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