Opinion
E075830
11-16-2022
THE PEOPLE, Plaintiff and Respondent, v. DARRYL ONELL MILBRY, Defendant and Appellant.
William G. Holzer, 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, Arlene A. Sevidal, Randall D. Einhorn and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. CR57734. John D. Molloy, Judge. Reversed and remanded with directions.
William G. Holzer, 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, Arlene A. Sevidal, Randall D. Einhorn and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON TRANSFER
MCKINSTER ACTING P. J.
Defendant and appellant, Darryl Onell Milbry, filed a petition for resentencing pursuant to Penal Code former section 1170.95, which the superior court denied. On appeal, defendant contended the court erred in summarily denying his petition. By opinion filed December 3, 2021, we affirmed, holding that the jury's true finding on the robbery-murder special-circumstance allegation rendered defendant ineligible for relief.
All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
On October 26, 2022, the California Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). On October 27, 2022, we ordered our decision vacated and set a briefing schedule.
The People argue that pursuant to Strong, defendant can challenge the jury's true finding on the felony-murder special-circumstance allegation because it was rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The People maintain the court's order should be reversed and the matter remanded for further proceedings. Defendant agrees. We reverse and remand the matter for reconsideration.
On the court's own motion, we take judicial notice of our prior unpublished opinion. (People v. Milbry (Oct. 4, 1996, E016237) [nonpub. opn.] (Milbry); Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).) The People below attached a copy of Milbry to their response and requested the court take judicial notice of it. Although the court below never expressly ruled on the request for judicial notice, it relied on the opinion in denying the petition. Both the parties below and on appeal have relied on Milbry. Thus, we shall likewise rely on the opinion for our procedural background. We find the facts unnecessary to our resolution of the issues on appeal.
On March 8, 1995, a jury found defendant guilty of the first degree murder of Marvin Carroll (§ 187, count 1), prosecuted solely on the theory of felony murder, and two counts of attempted robbery (§§ 664, 211, counts 2 &3), one in which Carroll was the alleged victim and the second in which Lamont Butler was the victim. The jury also found true the alleged special circumstance that Carroll was killed during a robbery. (§ 190.2, subd. (a)(17)(i).) In connection with each of the three counts, the jury also found true special allegations that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)) and that a principal was armed with a firearm (§ 12022, subd. (a)(1)).
On May 4, 1995, the trial court sentenced defendant on count 1 to state prison for life without the possibility of parole, plus a consecutive, determinate term of three years-one year on the "armed" enhancement and two years on the criminal street gang enhancement. With respect to counts 2 and 3, the trial court imposed sentences of one year six months, plus a total of three consecutive years on the enhancements, all stayed pursuant to section 654.
On appeal, defendant raised numerous claims, including that the evidence was insufficient to support the felony-murder conviction and that insufficient evidence supported the robbery-murder special-circumstance allegation. (People v. Milbry, supra, E016237.) In affirming the judgment, this court held that Butler's "testimony describing what occurred supports a reasonable inference that defendant and his companions intended both to rob and kill Butler and Carroll." (Ibid.) This court further held, "there was ample evidence to show defendant acted with reckless indifference to human life and as a major participant in the underlying attempted robbery of Carroll." (Ibid.)
This court reversed the gang enhancements. (People v. Milbry, supra, E016237.)
This court noted that "defendant was not the actual shooter and the identity of the three other participants, one of whom was the actual shooter, was never established." (People v. Milbry, supra, E016237.)
On June 1, 2020, defense counsel filed a former section 1170.95 form petition for resentencing in the superior court in which he alleged defendant was not the actual killer, did not act with an intent to kill, and was not a major participant acting with reckless indifference for human life. Defense counsel requested appointment. He attached to the form petition the portion of the trial transcript relevant to a section 1118.1 motion.
On July 6, 2020, defense counsel filed a second, identical former section 1170.95 petition. The court set the matter for a conference hearing.
At the conference hearing on July 24, 2020, defense counsel noted that he had yet to receive a response from the People. The People observed, "according to the minutes of the case, this is a one defendant case. [Defendant] was convicted of murder and two counts of attempted murder. According to the minutes . . . a special circumstance was also found true. He was sentenced to prison for LWOP. In the petition, the public defender included a . . . partial transcript of the [section] 1118.1 hearing where the special circumstance was unsuccessfully challenged in 1995....[¶] Under fairly recent case law, a special circumstance would disqualify the defendant if there is no challenge to the sufficiency." The People also maintained that any challenge to the sufficiency of the evidence to support the special circumstance finding required the filing of a habeas petition.
Defense counsel argued that the issues needed to be briefed. Defense counsel noted that defendant "was the only defendant, but . . . there were four perpetrators. The other perpetrators were never identified ...." The court noted that it was "not prepared to rule.... I'd like to see a brief on this issue and have a chance to reflect on all the cases."
Defendant apparently had a pending petition for writ of habeas corpus because, on August 5, 2020, defense counsel filed a "renewed" motion to stay briefing in that matter pending the conclusion of his former section 1170.95 petition. Defense counsel noted that the issue to be briefed in the former section 1170.95 proceeding was whether defendant might proceed in spite of a true finding on the robbery-murder specialcircumstance allegation, which the jury rendered prior to the decision in Banks. The court stayed the habeas proceeding pending resolution of the former section 1170.95 petition.
No prior motion to stay appears in the record.
On August 25, 2020, the People filed their response to defendant's petition. The People primarily argued that defendant had failed to make a prima facie showing for relief because the true finding on the robbery-murder special-circumstance allegation required that the jury find, at minimum, that defendant was a major participant acting with reckless disregard for human life, rendering defendant ineligible for relief. The People additionally contended that former section 1170.95 did not give the trial court the authority to preside over the relitigation of the validity of the jury findings.
On September 16, 2020, defense counsel filed a reply brief. Defense counsel contended that a special circumstance finding rendered prior to the decisions in Banks and Clark did not render a petitioner ineligible for former section 1170.95 relief. Therefore, defense counsel maintained he had made a prima facie showing for relief requiring the court to set the matter for an evidentiary hearing.
On September 17, 2020, the People filed a second supplemental response to the petition. The People contended that this court had determined that the jury rendered an implied finding that defendant intended to kill the victim. Moreover, the People maintained that from a review of this court's opinion, defendant was clearly, at minimum, a major participant who acted with reckless disregard for human life.
At the hearing on September 23, 2020, the court noted that there "was a fairly comprehensive recitation" of the facts "in the Court of Appeal opinion that was attached to the People's brief." The court observed, "The Court of Appeal has ruled specifically on whether the evidence was sufficient to support a finding of an intentional killing as to the defendant." The Court of Appeal "said that the evidence is adequate to support a finding that they all intended to kill. They said that. That's exactly what it says." Thus, the superior court believed this court's determination had a preclusive effect.
Defense counsel argued that this court "was actually examining the facts in a light most favorable to the verdict, so all of their inferences are made in the light most favorable to the verdict." "They say, well, maybe there's [an] inference of intent or also he's a major participant and acted with reckless disregard in [a] pre-Banks analysis." Defense counsel then argued that an application of the Banks factors to the facts of defendant's case established that defendant was not a major participant acting with reckless disregard for human life. Defense counsel noted, "it's always said that appellate court opinions are not-are sometimes not a part of the record of conviction because the record of conviction is what the facts were at trial or what the defendant admitted to." Defense counsel further noted that engaging in factual determinations while conducting a review of the Banks factors went beyond what was necessary to make a prima facie showing.
The superior court noted that it was bound by this court's determination that the evidence was sufficient to show defendant intended the death of the victim. "There has been a specific finding by Court of Appeal that the evidence was sufficient to support a finding of specific intent to kill." "As a matter of law, there has been a finding that the evidence was sufficient to support a finding on specific intent to kill."
Nonetheless, even examining the facts of the case considering the Banks factors, the court concluded there was "[a]mple evidence to support not only specific intent, but more importantly a reckless disregard, a willful indifference to the safety" of the victim. "I do find on this record that it would survive a Banks analysis ...." The court denied the petition.
II. DISCUSSION
The People argue that pursuant to Strong, defendant can challenge the jury's true finding on the robbery-murder special-circumstance allegation because it was rendered prior to the decisions in Banks and Clark. The People maintain the court's order should be reversed and the matter remanded for further proceedings. Defendant agrees. We reverse and remand the matter for reconsideration.
"Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (Strong, supra, 13 Cal.5th at pp. 707-708.) "Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. [Citations.] Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (Id. at p. 708, fn. omitted.)
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for . . . relief, the prima facie inquiry . . . is limited. 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."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (People v. Lewis (2021) 11 Cal.5th 952, 971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
Where a defendant's "case was tried before both Banks and Clark, . . . 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.) A court "err[s] in concluding otherwise." (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, "the court must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Id. at p. 709.) "Senate Bill 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life ....'" (Id. at p. 710.)
"[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to 'consider the procedural history of the case recited.' [Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a [former] section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292; accord People v. Flores (2022) 76 Cal.App.5th 974, 988 ["[T]he factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing."].)
We agree with defendant's original contention that this court's prior opinion did not establish as a matter of law that the jury found defendant acted with an intent to kill. We similarly agree that the court's determination at the prima facie hearing, that defendant was a major participant acting with reckless disregard for human life, involved quintessentially prohibited "'factfinding involving the weighing of evidence or the exercise of discretion.'" (People v. Lewis, supra, 11 Cal.5th at p. 972.)
Moreover, to the extent the court held an evidentiary hearing, it erred in applying a sufficiency of the evidence standard, rather than holding the People to their burden of proving defendant was ineligible for relief beyond a reasonable doubt. (Strong, supra, 13 Cal.5th at p. 708.) Furthermore, the court erred in relying exclusively, without stipulation, on the factual recitations in this court's prior opinion in determining defendant's eligibility for relief. (People v. Clements, supra, 75 Cal.App.5th at p. 292; accord People v. Flores, supra, 76 Cal.App.5th at p. 988.)
Finally, the jury rendered the robbery-murder special-circumstance finding before both Banks and Clark were decided. With respect to that finding, "no judge or jury has ever found the currently required degree of culpability ...." (Strong, supra, 13 Cal.5th at p. 718, italics added.) Thus, contrary to our original determination, the special murder circumstance finding did not, alone, render defendant per se ineligible for relief. Therefore, the court's order must be reversed, and the matter remanded for further proceedings.
III. DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded with directions to hold a new prima facie hearing. We express no opinion on whether defendant is entitled to relief following the hearing.
We concur: FIELDS J. MENETREZ J.