Opinion
B322354
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. DESMOND McMILLER, Defendant and Appellant.
Sara H. Ruddy, under appointment by the Court of Appeal; Desmond McMiller, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA137063 Eleanor J. Hunter, Judge. Affirmed.
Sara H. Ruddy, under appointment by the Court of Appeal; Desmond McMiller, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CHANEY, J.
Desmond McMiller, who was convicted of first degree murder, appeals from the trial court's order denying his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6). His appointed appellate counsel filed an opening appellate brief raising no issues and requesting that we follow the procedures outlined in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). McMiller filed a supplemental brief, contending the trial court erred in concluding he did not make a prima facie case for relief and denying his petition for resentencing without issuing an order to show cause and holding an evidentiary hearing. He also raises other issues that are not cognizable in this appeal. For the reasons explained below, we conclude McMiller is ineligible for relief under section 1172.6 as a matter of law, and we affirm the trial court's order denying his petition.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In the discussion section of this opinion, we refer to the statute by its current designation, section 1172.6. Undesignated statutory references are to the Penal Code.
BACKGROUND
We take the procedural history regarding McMiller's murder conviction from the record in his direct appeal. (See People v. McMiller (May 24, 2018, B268622) [nonpub. opn.]; Evid. Code, § 452, subd. (d)(1) [permitting judicial notice of "[r]ecords of. . . any court of this state"].) On this court's own motion, we take judicial notice of the appellate record in case No. B268622.
A. Charges
An information charged McMiller and codefendants Patrick Pearson and Deshonda Young with the March 6, 2014 murder of Douglas Wooley and various other crimes. In connection with the murder count, the information alleged that McMiller, Pearson, and a principal each personally and intentionally discharged a firearm, proximately causing great bodily injury and death to Wooley. (§ 12022.53, subds. (d) &(e)(1).) The information further alleged that the murder of Wooley was committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(4). McMiller, Pearson, and Young were tried together.
B. Jury Instructions
The only theory of first degree murder presented to the jury was willful, deliberate, and premeditated murder. Using CALCRIM No. 521, the trial court instructed the jury, in pertinent part: "The defendant is guilty of first degree murder if the People have proved that he/she acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death." The court also instructed the jury on direct aiding and abetting of a crime. (CALCRIM Nos. 400 &401.)
Regarding the firearm enhancement allegations, the trial court instructed the jury as follows with CALCRIM No. 3149, in pertinent part: "If you find defendants Pearson and McMiller guilty of the crimes in Count 1 [murder], you must then decide whether, for each crime, the People have proved the additional allegation that defendant personally and intentionally discharged a firearm during that crime causing death. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] 1. Defendant personally discharged a firearm during the commission of that crime; [¶] 2. Defendant intended to discharge the firearm; [¶] AND [¶] 3. Defendant['s] act caused death to a person." The court also instructed the jury on the special allegation that a principal personally and intentionally discharged a firearm during the murder, causing the victim's death.
The trial court did not instruct the jury on felony murder, as this is not a felony murder case. Nor did the court instruct the jury on first degree murder liability under the natural and probable consequences doctrine or theory of imputed malice based on the defendants' participation in a crime.
As McMiller indicates in his supplemental brief in this appeal, the trial court referred to "natural and probable consequences" in two instructions read to the jury. These references to natural and probable consequences are not relevant to McMiller's first degree murder conviction. First, using CALCRIM No. 403, the court explained to the jury that other charged offenses (not murder) involving a different victim (not Wooley) could be the natural and probable consequences of the commission of the murder of Wooley. Second, the words "natural and probable consequences" appear in CALCRIM No. 520 in relation to implied malice (second degree) murder, a crime of which McMiller was not convicted.
C. Prosecutor's Argument to the Jury
As reflected in the prosecutor's closing argument, the prosecution's theory of the murder was (1) that codefendant Young directly aided and abetted the first degree murder of Wooley by, among other things, driving McMiller and codefendant Pearson to and away from the scene of the gang-related shooting; and (2) that McMiller and Pearson exited the vehicle and each fired his weapon at Wooley, intending to kill and actually killing Wooley.
D. Verdicts and Sentence
The jury found McMiller, Pearson, and Young guilty of Wooley's murder and various other crimes. As reflected on the verdict forms, the jury found the murder to be in the first degree. The jury found to be true the gang enhancement allegations as well as the firearm enhancement allegations that McMiller, Pearson, and a principal each personally and intentionally discharged a firearm, causing great bodily injury and death to Wooley. In December 2015, after finding prior convictions allegations to be true, the trial court sentenced McMiller to 161 years and four months to life in prison.
McMiller, Pearson, and Young each appealed from the judgment of conviction. In May 2018, we affirmed their convictions, but remanded the matter to allow the trial court to determine in the first instance whether to strike or dismiss the firearm enhancements imposed under section 12022.53, as the statute was amended while the appeal was pending. (People v. McMiller, supra, B268622.)
II. McMiller's Petition for Resentencing
In 2018, the Legislature enacted Senate Bill No. 1437, effective January 1, 2019, "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." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &189, subd. (e).) Senate Bill No. 1437 amended sections 188 (defining malice) and 189 (felony murder) and added section 1170.95, now renumbered section 1172.6, which established a procedure for vacating murder convictions and resentencing defendants who could no longer be convicted of murder in light of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)
Senate Bill No. 1437 added the following provision to section 188 (Stats. 2018, ch. 1015, § 2): "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).) The effect of this amendment was to "eliminate[ ] natural and probable consequences liability for first and second degree murder." (People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) Effective January 1, 2022, Senate Bill No. 775 amended former section 1170.95, subdivision (a) to provide, among other things, that the statute applies to individuals convicted of murder on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (Stats. 2021, ch. 551, § 2.)
On December 17, 2021, shortly after the Legislature enacted Senate Bill No. 775, McMiller, as a self-represented litigant, filed a petition for resentencing under former section 1170.95, now section 1172.6. Using a preprinted form, he checked all the boxes for a facially sufficient petition. The matter was assigned to the judge who presided at McMiller's trial and sentencing (Hon. Eleanor J. Hunter). The trial court appointed counsel for McMiller.
On February 28, 2022, the district attorney filed a response to McMiller's petition for resentencing. The district attorney argued the resentencing statute is not applicable to McMiller's case and he is ineligible for relief thereunder because the theories of liability presented at McMiller's trial were "direct liability and aiding and abetting. Neither natural and probable consequences nor felony murder were applicable theories of liability to this case nor were those instructions read to the jury." The district attorney attached to the response our opinion in McMiller's direct appeal. (People v. McMiller, supra, B268622.)
On May 15, 2022, McMiller's appointed counsel filed a reply brief, arguing McMiller's form petition presented a prima facie case for relief under former section 1170.95, and the trial court therefore should issue an order to show cause and set the matter for an evidentiary hearing.
On May 17, 2022, the trial court held a hearing to determine if McMiller made a prima facie case for relief in his petition. At the outset of the hearing, the court commented, "the court is well familiar with this case because I was the judge that presided over this trial" and "I remember these facts very, very well." After hearing oral argument from the deputy district attorney and McMiller's appointed counsel, and reviewing pertinent caselaw, the court ruled: "So taking a look at in our situation here, Mr. McMiller was an individual that was in a car and he was charged with murder I think of Mr. Wooley, a young man who was mentally disabled -- that's neither here nor there. He was walking down the street.
"During the trial there were no instructions with regard to felony murder. There were no instructions with regard to natural and probable consequences.
"In this case Mr. McMiller and his codefendant Mr. Pearson got out of the car and Mr. Pearson had a .40 caliber gun and Mr. Miller or McMiller drew like an AK-47 and they shot the victim multiple, multiple times. And the autopsy indicated that the victim died of multiple gunshots. So in this case Mr. McMiller was the actual shooter.
"And even if the jury could not determine whether or not his bullets specifically killed the victim, it certainly was on an aiding and abetting theory.
"So based on that and the court not doing any, any factfinding or evaluation with regard to this case, purely with regard to the theory that the People went on, the court is finding that the defendant is not legally eligible for resentencing pursuant to the Penal Code [former] section 1170.95 and I'm going to deny the petition."
III. The Present Appeal
McMiller filed a timely notice of appeal from the order denying his petition for resentencing, and this court appointed counsel for him. As noted, counsel filed a brief raising no issues and requesting that we follow the procedures outlined in Delgadillo, supra, 14 Cal.5th 216. Counsel further requested that this court "exercise its discretion to conduct an independent review of the record as permitted by Delgadillo." (Id. at p. 232 ["While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal"].) Counsel served a copy of the brief on McMiller, advised him of his right to file a supplemental brief, and informed him that we might dismiss the appeal if he did not file a supplemental brief.
We sent a letter to McMiller, informing him that his counsel had filed a Delgadillo brief raising no issues and that he could submit a supplemental brief or letter stating any grounds for the appeal, or contentions or arguments he wanted this court to consider. We also informed him that we might dismiss the appeal as abandoned if he did not file a supplemental brief or letter. McMiller filed a supplemental brief, and we address his contentions below.
DISCUSSION
I. Law Governing Delgadillo Appeals
In Delgadillo, our Supreme Court held, "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Delgadillo, supra, 14 Cal.5th at pp. 231232.) If the defendant files a supplemental brief or letter, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) "The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Ibid.) Evaluating the arguments raised in McMiller's supplemental brief necessitated a review of the entire record on appeal, and we have determined there is no arguable issue for appointed appellate counsel to brief.
II. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), "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 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."
When a defendant files a facially sufficient petition under section 1172.6, the trial court must appoint counsel to represent the petitioner, allow briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme Court explained: "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 section [1172.6] relief, the prima facie inquiry under subdivision (c) 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."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if 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." '" (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final step in the process is a hearing to determine if the petitioner is entitled to relief, where the trial court must vacate the petitioner's murder or attempted murder conviction and resentence him or her on any remaining counts unless the prosecution can "prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
"Whether the court conducted a proper inquiry under section [1172.6], subdivision (c)" at the prima facie stage-the issue before us-"is a question of statutory interpretation, which we review de novo." (People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
III. McMiller Is Ineligible for Relief Under Section 1172.6 as a Matter of Law
McMiller contends he has made a prima facie case for relief under section 1172.6, and we should remand the matter for the trial court to issue an order to show cause and hold an evidentiary hearing. In support of this contention, he asserts the trial court erred when it engaged in "a form of fact finding" by relying on the statement of facts in our opinion in his direct appeal and "the trial court's memory of the case." He further argues he "is not ineligible for relief as a matter of law simply because he was prosecuted as the actual killer," or as a direct aider and abettor, because the jury could have imputed malice to him under both of these theories. None of these arguments is meritorious.
McMiller's record of conviction demonstrates he is ineligible for relief under section 1172.6 as a matter of law, without resort to impermissible factfinding, as the trial court expressly stated in its ruling. McMiller acknowledges that a court may consider the jury instructions in making its prima facie determination. Based on the jury instructions given at McMiller's trial, as summarized above, the jury was required to find McMiller acted with intent to kill in order to find him guilty of willful, deliberate and premeditated first degree murder as it did. (See CALCRIM No. 521.) Further, as reflected on the verdict form, the jury found McMiller personally and intentionally fired upon Wooley, causing Wooley's death. Thus, the jury necessarily found that acting with express malice (intent to kill), McMiller actually killed Wooley, rendering him ineligible for relief under section 1172.6. The record of conviction forecloses any possibility that the jury imputed malice to McMiller based on his participation in a crime.
Even if the jury found McMiller guilty of first degree murder as a direct aider and abettor (as opposed to the actual killer)-the only other theory of first degree murder liability presented to the jury-his murder conviction would still be valid today after the enactment of Senate Bill Nos. 1437 and 775. (See Gentile, supra, 10 Cal.5th at p. 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"]; see also People v. Coley (2022) 77 Cal.App.5th 539, 548 ["Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775"].)
Both below and in this appeal, McMiller has relied on People v. Langi (2022) 73 Cal.App.5th 972, a case that is inapplicable here. There, the Court of Appeal reversed an order denying a petition for resentencing under former section 1170.95. The appellate court concluded: "Because the record of conviction does not conclusively negate the possibility that the jury found appellant guilty of second degree murder by imputing to him the implied malice of the actual killer, without finding that he personally acted 'with knowledge of the danger to, and with conscious disregard for, human life' [citation], an evidentiary hearing is required." (Langi, at p. 984.) Here, unlike in Langi, McMiller was not convicted of implied malice second degree murder, and as discussed above, McMiller's record of conviction demonstrates the jury found he acted with intent to kill when he fired upon Wooley and committed first degree murder.
McMiller asserts his appointed appellate counsel's filing of a Delgadillo brief constitutes a violation of his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. He requests that we order appointed counsel to brief the issues he raised in his supplemental brief or appoint different appellate counsel to do so. For the reasons discussed above, McMiller is ineligible for relief under section 1172.6 as a matter of law, and there are no arguable issues for counsel to brief.
The remaining issues McMiller raises in his supplemental brief are not cognizable in this appeal from the order denying his petition for resentencing under section 1172.6 (i.e., issues relating to his direct appeal of his convictions and the proceedings upon remand after the direct appeal). Accordingly, we do not discuss these issues further.
DISPOSITION
The May 17, 2022 order denying the section 1172.6 petition is affirmed.
We concur: ROTHSCHILD, P. J., BENDIX, J.