Opinion
D083221
09-30-2024
THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI DEVON McMILLAN, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Robin Urbanski, Felicity A. Senoski and Juliet W. Park, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County, No. BAF1600043 Thomas Kelly, Judge. Reversed and remanded with directions.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Robin Urbanski, Felicity A. Senoski and Juliet W. Park, Deputy Attorneys General for Plaintiff and Respondent.
This case is appropriate for resolution by memorandum opinion because it raises "no substantial issues of law or fact." (Cal. Stds. Jud. Admin., § 8.1; see People v. Garcia (2002) 97 Cal.App.4th 847.)
O'ROURKE, J.
Defendant and appellant Giovanni Devon McMillan appeals from an order denying his petition for resentencing under Penal Code section 1172.6.He contends the court erred by denying his petition without independently reviewing the record, and argues the prosecutor's representations were insufficient to establish his ineligibility for relief. McMillan maintains that because the court did not do the work required by section 1172.6 or provide a required statement of reasons for denying the petition, the present record may not be relied upon to conclusively establish he is not entitled to section 1172.6 relief as a matter of law. He argues that because the court did not follow any of the statutory procedure, we should not undertake a harmless error analysis. He further contends in any event that the record does not refute his prima facie case, and thus we must reverse and remand this matter for further proceedings that comply with section 1172.6 as contemplated by the Legislature.
Undesignated statutory references are to the Penal Code.
The People concede the court erred by failing to comply with section 1172.6's statutory procedural requirements. Asking us to take judicial notice of the underlying trial proceedings, they argue the error was harmless because the record of conviction-the jury instructions and verdicts- necessarily establish McMillan was the actual killer or acted with intent to kill, and thus he is ineligible for relief as a matter of law.
We granted the People's unopposed request to judicially notice the underlying record. However, we agree that because the trial court failed to undertake its statutory duties under section 1172.6, subdivision (c), we must reverse with directions for the court to conduct the proceedings required by this section.
In March 2020, a jury convicted McMillan of murder (§ 187, subd. (a)) and found true special circumstance allegations that while doing so he was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and also that he personally and intentionally discharged a firearm, proximately causing great bodily injury or death to another person who was not an accomplice (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)). (See People v. McMillan (Nov. 18, 2021, D078064) [nonpub. opn.].) "The trial court sentenced him to life in prison without the possibility of parole, and imposed a $10,000 parole revocation restitution fine under section 1202.45, subdivision (c) but suspended it 'unless parole is revoked.'" (Ibid.) We struck the parole revocation restitution fine but otherwise affirmed the judgment in 2021. (Ibid.)
In September 2023, McMillan petitioned for resentencing under section 1172.6. Checking boxes on a form petition, he asserted that "[a] complaint, information, or indictment was filed against [him] 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"; that he "was convicted of murder, attempted murder, or manslaughter following a trial or [he] accepted a plea offer in lieu of a trial at which [he] could have been convicted of murder or attempted murder"; and he "could not presently be convicted of murder or attempted murder because of changes made to [sections] 188 and 189, effective January 1, 2019." (Some bolding and underlining omitted.) That same day, the court set a status conference for the matter.
At the ensuing status conference, the court appointed McMillan counsel. It denied the petition in the following exchange:
"[Prosecutor]: Your Honor, at this time we'd ask the court to have the court deny the petition. [¶] I got ahold of the jury instructions for the case and sent them to [defense counsel] earlier this week. There were no instructions regarding natural and probable consequences or felony murder outside of the actual felony murder itself. In other words, [McMillan] acted alone. So there is no major participant or reckless indifference finding for any other co-defendant who may have helped him, which would make it an aiding and abetting case and thus under the ambit of . . . section 1172.6. Accordingly, [McMillan] is ineligible. He was the sole perpetrator. [¶] We'd ask the court to deny the petition at this time.
"[Defense counsel]: Your Honor, I have confirmed that no jury instruction was given that would have allowed the jury to return a verdict of murder under a now unlawful theory. [¶] I'll submit it.
"The court: All right. So he is not eligible for [section] 1172.6 relief. The court so finds....
"[Prosecutor]: Is the court denying the petition?
"The court: Yes."
This appeal followed.
Senate Bill No. 1437 became effective on January 1, 2019. (Stats. 2018, ch. 1015; People v. Medrano (2024) 98 Cal.App.5th 1254, 1260.) It changed the substantive definition of murder in two areas: "First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189, subdivision (e) .... Under that provision, 'A participant in the perpetration or attempted perpetration of a [specified felony] in which a death occurs 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).) [¶] Second, Senate Bill [No.] 1437 imposed a new requirement that, except in cases of felony murder, 'a principal in a crime shall act with malice aforethought' to be convicted of murder. (§ 188, subd. (a)(3).) 'Malice shall not be imputed to a person based solely on his or her participation in a crime.' (Ibid.) One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine." (People v. Curiel (2023) 15 Cal.5th 433, 448-449.)
Senate Bill No. 1437 also added section 1172.6 to the Penal Code. (Stats. 2018, ch. 1015, § 4; People v. Medrano, supra, 98 Cal.App.5th at p. 1260.) The statute creates "a procedural mechanism for those convicted of murder under prior law to seek retroactive relief." (People v. Wilson (2023) 14 Cal.5th 839, 869; see People v. Curiel, supra, 15 Cal.5th at p. 449; People v. Lewis (2021) 11 Cal.5th 952, 957; see Stats. 2018, ch. 1015.) As later amended by Senate Bill No. 775, section 1172.6, subdivision (a) provides:" 'A person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts.'" (See People v. Curiel, supra, 15 Cal.5th at pp. 449-450; People v. Strong (2022) 13 Cal.5th 698, 798; Lewis, supra, 11 Cal.5th at p. 957.)
The petition must aver that: "(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[;] [¶] [and] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3); see also id., subd. (b)(1)(A).) Additionally, the petition shall state "[w]hether the petitioner requests the appointment of counsel." (Id., subd. (b)(1)(C).)
If a section 1172.6 petition contains all the required information and the petitioner requests counsel, the superior court must appoint counsel. (§ 1172.6, subd. (b)(1)(A), (b)(3); see People v. Lewis, supra, 11 Cal.5th at pp. 962-963.) Within 60 days after a compliant petition is served, the prosecutor "shall file and serve a response." (§ 1172.6, subd. (c), italics added.) The petitioner may file a reply, and the court then "shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Ibid., italics added.)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, the "court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [Citation.] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense. If only one element of the offense is established by the record, the petitioner could still be correct that he or she could not currently be convicted of the relevant offense based on the absence of other elements." (People v. Curiel, supra, 15 Cal.5th at p. 463; see also People v. Lewis, supra, 11 Cal.5th at p. 971; § 1172.6, subd. (c).)" '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, at p. 971.)
At this preliminary stage, the court may consider the record of conviction, which will "necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (People v. Lewis, supra, 11 Cal.5th at p. 971; see People v. Curiel, supra, 15 Cal.5th at pp. 463464.) "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.'" (Lewis, at p. 972; see also People v. Harden (2022) 81 Cal.App.5th 45, 51.)
The court "may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law.' "[I]f the record, including the court's own documents, 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner,'"' thereby deeming the petitioner ineligible." (People v. Harden, supra, 81 Cal.App.5th at p. 52; see People v. Curiel, supra, 15 Cal.5th at p. 460; People v. Lewis, supra, 11 Cal.5th at p. 971.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
If the court issues an order to show cause, within 60 days it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).) At this hearing, either party may present new evidence and the prosecution bears the burden of proving the petitioner could still be convicted beyond a reasonable doubt. (Id., subd. (d)(3).)
Appellate courts independently review whether the trial court conducted a proper inquiry under section 1172.6, subdivision (c). (People v. Harden, supra, 81 Cal.App.5th at p. 52; People v. Eynon (2021) 68 Cal.App.5th 967, 975.)
As stated, the trial court considered McMillan's petition at a "status conference." It did not invite the prosecution to submit responsive briefing as required by section 1172.6, subdivision (c), nor did the prosecution do so. The record does not indicate the court reviewed any part of McMillan's record of conviction in rendering its decision, or any documentary evidence. Rather, it summarily denied the petition following the prosecutor's oral proffer about the jury instructions from McMillan's trial, and defense counsel's submission to those assertions.
Thus, the record shows the court failed to adequately conduct the proceedings required by section 1172.6, subdivision (c). McMillan's form petition included the necessary information to trigger a hearing under subdivision (c), but the court did not receive or review any briefing by the parties, nor did it review and consider the record of conviction to determine if it refuted McMillan's allegations. The court relied only on the parties' conclusory representations. We do not construe defense counsel's "confirm[ation]" of the prosecutor's jury instruction remarks as a stipulation that McMillan had not presented a prima facie claim for relief, and the People do not argue forfeiture. On this showing, the court could not have determined the record of conviction conclusively established McMillan was ineligible for relief as a matter of law because it did not review it.
We recognize courts have applied the harmless error standard of People v. Watson (1956) 46 Cal.2d 818 to particular failures in the statutory procedure at the outset of the section 1172.6 petitioning process. (See People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1239 [failing to appoint counsel and by relying on substantive facts stated in court's prior opinion]; People v. Vance (2023) 94 Cal.App.5th 706, 714 [court improperly considered prior appellate opinion]; People v. Hurtado (2023) 89 Cal.App.5th 887, 891-893 [failure to appoint counsel, set a briefing schedule, or hold a hearing before deciding the defendant did not make a prima facie showing for resentencing]; People v. Farfan (2021) 71 Cal.App.5th 942, 953 [failure to accept briefing from the parties, as well as appoint counsel].) But the Attorney General is in effect asking that we in the first instance review the record to determine McMillan's eligibility for relief, and conduct wholesale the requisite analysis that is the trial court's obligation.
We decline to perform the trial court's statutorily mandated task for the first time on appeal. Though we granted the People's unopposed request for judicial notice, we conclude the appropriate remedy is to reverse the order denying the petition with directions to the court to perform its functions under section 1172.6, subdivision (c). We take no position on how the court should ultimately determine whether McMillan has made a prima facie claim for relief.
DISPOSITION
The order is reversed. The matter is remanded for the trial court to conduct proceedings consistent with section 1172.6, subdivision (c).
I CONCUR:
DO, J.
I CONCUR IN THE RESULT:
HUFFMAN, Acting P. J.