People v. Miller CA4/2

Filed 12/7/22 P. v. Miller CA4/2
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076569

v. (Super.Ct.No. CR57524)

ANTHONY SILEAN MILLER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and remanded with directions.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Eric A.

Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

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 In 1995, defendant and appellant Anthony Silean Miller was convicted of first

degree murder, with robbery-murder special circumstance, on a felony-murder theory.

The robbery-murder special circumstance authorizes a sentence of life without the

possibility of parole for “a major participant” in a felony murder who acted with

“reckless indifference to human life.” (Pen. Code,1 § 190.2, subds. (a)(17) & (d).)

In 2020, defendant filed a petition to vacate his murder conviction and for

resentencing under section 1172.6 (formerly section 1170.95).2 The trial court

summarily denied the petition, concluding the felony-murder special circumstance

finding conclusively established that defendant was not eligible for relief.

Defendant appealed that ruling, arguing the jury’s special circumstance finding did

not render him ineligible for relief as a matter of law because his conviction predated our

Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People

v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of “major

participant” and “reckless indifference to human life.” He thus believed he had

established a prima facie case for relief under section 1172.6 entitling him to an

evidentiary hearing. In our original opinion, we concluded that defendant’s special

circumstance finding rendered him ineligible for relief as a matter of law, and therefore

affirmed the summary denial of defendant’s petition.

1 All future statutory references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to
section 1172.6 for ease of reference unless otherwise indicated.

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 The California Supreme Court granted review of our opinion and deferred action

pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong), and it has now

transferred the matter back to us with directions to vacate our original opinion and

reconsider defendant’s appeal in light of that decision. In Strong, our Supreme Court

held that a pre-Banks/Clark felony-murder special circumstance finding does not render a

section 1172.6 petitioner ineligible for relief as a matter of law. We vacated our original

decision and provided the parties the opportunity to file a supplemental brief. Having

reconsidered defendant’s appeal in light of Strong, we reverse the trial court’s order and

remand the matter for further proceedings pursuant to section 1172.6.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background3

On June 14, 1994, Becky Johnson was a passenger in the victim’s car when her

acquaintances, defendant and his friend, Michael Bramitt, got into the back seat. Bramitt,

who was sitting behind the victim, put the victim into a headlock and put a gun to his

head, saying, “ ‘Where’s the money at?’ ” Defendant went through the victim’s pockets.

Bramitt hit the victim in the head with his gun. Both men pulled the victim out of his car

and onto the street where they jumped on and kicked the victim. Defendant told Bramitt,

“ ‘Just shoot him.’ ” Bramitt did, killing the victim.

3The underlying facts of defendant’s murder conviction are taken from our
nonpublished opinion in his direct appeal (People v. Miller (Aug. 11, 1997, E016679).

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 Later that night, Becky drove the victim’s car by where defendant was standing,

and he told her to “ ‘get that car out of here.’ ” Defendant and Bramitt went to the home

of defendant’s girlfriend’s godmother and were washing off jewelry in a bathroom sink.

There was also blood in the sink and blood on Bramitt’s pants. Defendant got blood on a

neighbor when she handed him a beer. Defendant changed into someone else’s clothes

while his girlfriend washed the clothes he had been wearing. While in the bathroom,

Bramitt said something about burning clothes. Bramitt left the home in the victim’s car.

Defendant later told his girlfriend’s godmother that he and Bramitt killed the victim and

Bramitt was the one who fired the gun.

Becky told several people that she, defendant, and Bramitt were involved in the

murder.

Bramitt spent the night following the shooting at the home of a friend where he

and Becky talked. Bramitt had Becky removed her clothing because there was blood on

it. He also had Becky take a shower and wash her hair. He told Becky he was going to

burn the clothes in the fireplace. Burnt clothing was later found in the fireplace.

B. Procedural Background

A jury convicted defendant of first degree murder (§ 187). They also found true

the special circumstance allegation that the murder was committed while defendant was

engaged in the commission of robbery (§ 190.2, subd. (a)(17)(i)) and during which a

principal was armed with a handgun (§ 12022, subd. (a)(1)). The trial court sentenced

him to life without the possibility of parole, plus one year. Defendant appealed his

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conviction but raised no claims regarding the sufficiency of the evidence presented

against him. We affirmed his conviction in August 1997.

On January 1, 2019, Senate Bill No. 1437 became effective, which amended the

felony-murder rule and the natural and probable consequences doctrine as it relates to

murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added

former section 1170.95 (now section 1172.6), which created a procedure for offenders

previously convicted of murder to seek retroactive relief if they could no longer be

convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)

On January 22, 2020, defendant filed a section 1172.6 petition to vacate his

murder conviction, and the court appointed him counsel.

On February 5, 2021, after hearing argument from the parties, the trial court

summarily denied the petition. The court concluded defendant was ineligible for relief as

a matter of law based on the jury’s special circumstance finding. The court also noted

that the law had not changed with respect to aider and abettor liability after Banks and

Clark and that defendant’s option was to challenge the special circumstance finding by

way of writ of habeas corpus.

II

DISCUSSION

Defendant contends the trial court erred in summarily denying his section 1172.6

petition by concluding the special circumstance finding rendered him ineligible for relief

as a matter of law because the finding predates Banks and Clark. The People concede

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that under Strong, the court’s order denying defendant’s petition for resentencing at the

prima facie stage should be reversed and the matter remanded for further proceedings.

Because his conviction predates our Supreme Court’s decisions in Banks, supra, 61

Cal.4th 788 and Clark, supra, 63 Cal.4th 522, we concur that the trial court erred in

denying defendant’s petition at the prima facie stage and remand for further proceedings

under section 1172.6.

A. Legal Background

In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively,

which discuss when section 190.2 authorizes a special circumstance life without parole

sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra,

61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that

participation in an armed robbery, on its own, is insufficient to support a finding the

defendant acted with reckless indifference to human life. Instead, the factfinder must

consider “the defendant’s personal role in the crimes leading to the victim’s death and

weigh the defendant’s individual responsibility for the loss of life, not just his or her

vicarious responsibility for the underlying crime.” (Banks, at p. 801, italics omitted.)

“The defendant must be aware of and willingly involved in the violent manner in which

the particular offense is committed,” thereby “demonstrating reckless indifference to the

significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided

a non-exhaustive list of factors to consider when determining whether the defendant was

a major participant in the underlying felony. (Banks, at p. 803.) And Clark offered a

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similar list for determining whether the defendant acted with reckless indifference to

human life. (Clark, at pp. 619-623.)

As noted previously, effective January 1, 2019, the Legislature passed Senate Bill

No. 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.’ ”

(People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015,

§ 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189.

Effective January 1, 2022, Senate Bill No. 775 expanded the scope of those changes to

encompass, among other things, murder convictions “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.” (§ 1172.6, subd. (a), as amended by

Stats. 2021, ch. 551, § 2.)

Section 188, which defines malice, now provides in part: “Except as stated in

subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime

shall act with malice aforethought. Malice shall not be imputed to a person based solely

on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)

Section 189, subdivision (e), now limits the circumstances under which a person may be

convicted of felony murder: “A participant in the perpetration or attempted perpetration

of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs

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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.” (§ 189, subd. (e); Stats. 2018,

ch. 1015, § 3.)

Senate Bill No. 1437 also created a procedure for offenders previously convicted

of felony murder or murder under the natural and probable consequences doctrine to seek

retroactive relief if they could no longer be convicted of murder under the new law.

(Gentile, supra, 10 Cal.5th at p. 843; see People v. Lewis (2021) 11 Cal.5th 952, 959

(Lewis).) Under section 1172.6, such offenders may petition to have their convictions

vacated and are entitled to relief if (1) the complaint or information filed against them

allowed the prosecution to proceed under a felony murder or natural and probable

consequences theory; (2) they were “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”; and (3) they

“could not presently be convicted of murder or attempted murder because of changes to

Section 188 or 189.” (§ 1172.6, subd. (a).) If a petition makes a prima facie showing the

offender is entitled to relief, the trial court must issue an order to show cause and hold “a

hearing to determine whether to vacate the murder, attempted murder, or manslaughter

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conviction and to recall the sentence and resentence the petitioner on any remaining

counts in the same manner as if the petitioner had not previously been sentenced.”

(§ 1172.6, subds. (c), (d)(1).) At that hearing, the People bear the burden “to prove,

beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,

subd. (d)(3); see Lewis, at p. 960.)

The prima facie inquiry under section 1172.6, subdivision (c), is “limited.”

(Lewis, supra, 11 Cal.5th at p. 971.) 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.” ’ ” (Ibid.) Although the

court may rely on the record of conviction (including a prior appellate court opinion) in

determining whether defendant has made a prima facie showing, the court “should not

engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ”

(Id. at p. 972; see id. at p. 971.)

In Senate Bill No. 775, the Legislature amended the language of section 1172.6,

expanding the scope of the petitioning process and clarifying some of the procedural

requirements. (Stats. 2021, ch. 551, § 2.) Section 1172.6 now provides that, upon

receiving a petition, if the petitioner has requested counsel, the court must appoint

counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).)

B. Standard of Review

In this case, the trial court denied defendant’s petition at the prima facie stage

under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the

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record of conviction demonstrates that the petitioner is ineligible for relief as a matter of

law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we

review de novo. (See id. at p. 961.)

C. Analysis

Our Supreme Court recently made clear that when, as here, a defendant’s case

“was tried before both Banks and Clark, the special circumstance findings do not

preclude him from making out a prima facie case for resentencing under section 1172.6.”

(Strong, supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have

been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The

Strong court noted that the Banks and Clark cases “both substantially clarified the law

governing findings under . . . section 190.2, subdivision (d).” (Id. at p. 706.) The court

explained that a pre-Banks and Clark special circumstance finding does not negate the

showing that the petitioner could not presently be convicted of murder or attempted

murder because of changes to section 188 or 189 “because the finding alone does not

establish that the petitioner is in a class of defendants who would still be viewed as liable

for murder under the current understanding of the major participant and reckless

indifference requirements.” (Strong, at pp. 717-718.)

Noting the differences between pre- and post-Banks and Clark special

circumstance requirements, the Supreme Court observed the changes may “have altered

what evidence defense counsel would have sought to introduce[,] . . . might have

fundamentally altered trial strategies,” and may have affected what jury instructions were

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requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review

of a pre-Banks and Clark record does not account for all these differences. . . . And

as the Legislature has made explicit in a recent amendment to the predecessor to

section 1172.6, a court determination that substantial evidence supports a homicide

conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.]

Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary

hearing in the first place.” (Id. at p. 720.) Thus, neither “the jury’s pre-Banks and Clark

findings nor a court’s later sufficiency of the evidence review amounts to the

determination section 1172.6 requires, and neither set of findings supplies a basis to

reject an otherwise adequate prima facie showing and deny issuance of an order to show

cause.” (Id. at p. 720.)

Here, the jury made its special circumstances finding about 20 years before Banks

and Clark. And the trial court found defendant ineligible for relief as to his murder

conviction based on the attendant special circumstance finding, namely that the murder

was committed in the commission of the robbery. Pursuant to Strong, that finding does

not preclude defendant from stating a prima facie case for relief. (Strong, supra, 13

Cal.5th at p. 721.) Furthermore, a defendant’s prima facie case is not barred even if the

trial evidence was sufficient to support the special circumstance finding after Banks and

Clark. (Strong, at p. 710; Lewis, supra, 11 Cal.5th at p. 972 [in reviewing the record at

the prima facie stage, “a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion’ ”].)

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 Defendant’s resentencing petition was facially sufficient and alleged the essential

facts necessary for relief under section 1172.6. Nothing in the record demonstrates

defendant is ineligible for relief as a matter of law, so we must remand the matter for

further proceedings under section 1172.6.

III

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed.

The matter is remanded for further proceedings pursuant to section 1172.6.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

MILLER
J.

FIELDS
J.

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