Opinion
E075830
12-03-2021
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, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, No. CR57734 John D. Molloy, Judge.
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, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
Defendant and appellant, Darryl Onell Milbry, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the superior court denied. On appeal, defendant contends the court erred in summarily denying his petition. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the court's own motion, we take judicial notice of our prior unpublished opinion. (People v. Milbry (Oct. 4, 1996, E016237) [nonpub. opn.]; Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).) The People below attached a copy of this court's opinion 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 the opinion for their factual recitations. Thus, we shall likewise rely on the opinion for our factual recitation and portions of our procedural background.
On June 19, 1994, Lamont Butler and Marvin Carroll were standing outside their car in a parking lot when four men approached. Defendant stood directly behind Butler and said, "don't move." The other three men moved toward Carroll. One of the three other men appeared to be holding a nine-millimeter pistol. Defendant asked Butler if he had any money. Butler started pleading for his life. (People v. Milbry, supra, E016237.)
Defendant and the man with the gun kept telling Butler, "shut the F up." Butler testified the other two men were trying "to stop it" because one of them was "[s]aying, 'No man, come on. Come on, let's go.'" (People v. Milbry, supra, E016237.)
Defendant grabbed Butler around his neck, dragged him away from the car, and told him to get on his knees. Butler believed that defendant was also holding a gun. Butler was on his knees for about a minute when one of the other men walked up and told defendant to let Butler get up. As Butler started to get up, he heard three shots; Butler looked over to see Carroll falling to the ground. Butler ran off. Carroll died from two gunshot wounds. (People v. Milbry, supra, E016237.)
Butler identified defendant from a photograph contained in a book of photographs the local law enforcement agency maintained on suspected gang members. Officers arrested defendant several days thereafter. Butler was apparently unable to identify the three other men and none of them were ever subsequently identified. (People v. Milbry, supra, E016237.)
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 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. (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 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 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 section 1170.95 petition. Defense counsel noted that the issue to be briefed in the section 1170.95 proceeding was whether defendant might proceed in spite of a true finding on the murder special circumstance, which the jury rendered prior to the decision in People v. Banks (2015) 61 Cal.4th 788 (Banks). The court stayed the habeas proceeding pending resolution of the 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 murder special circumstance required that the jury find, at minimum, that defendant was a major participant acting with reckless disregard for human life; therefore, rendering defendant ineligible for relief. The People additionally contended that 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 People v. Clark (2016) 63 Cal.4th 522 (Clark) does not render a petitioner ineligible for 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 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 in light of 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 superior court denied the petition.
II. DISCUSSION
Defendant contends the superior court erred in summarily denying his petition without issuing an order to show cause. Defendant argues that, contrary to the court's determination below, this court's prior opinion did not establish that the jury actually found defendant specifically intended to kill the victim. Defendant further maintains that this court's prior opinion does not establish that defendant was a major participant acting with reckless disregard for human life.
We agree that the 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 (2021) 11 Cal.5th 952, 972 (Lewis).) Nonetheless, we hold that the jury's true finding on the special robbery-murder circumstance rendered defendant ineligible for relief.
"Effective January 1, 2019, the Legislature passed Senate Bill 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).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, supra, 11 Cal.5th at p. 959.)
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citations.] Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition.'" (Lewis, supra, 11 Cal.5th at pp. 959-960.)
"Where the petition complies with [section 1170.95, ] subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief." (Lewis, supra, 11 Cal.5th at p. 960.) A court may rely on the record of conviction in determining whether a prima facie showing has been made. (Id. at p. 970.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) "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 1170.95 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."'" (Ibid.)
"'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."'" (Lewis, supra, 11 Cal.5th at p. 971.) "Appellate opinions . . . are generally considered to be part of the record of conviction." (Id. at p. 972.) "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.'" (Ibid.) "In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under [section 1170.95, ] subdivision (c)." (Ibid.)
In this case, the superior court denied defendant's petition at the prima facie stage under section 1170.95, subdivision (c). "A denial at that stage is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo." (People v. Murillo (2020) 54 Cal.App.5th 160, 167 (Murillo), review granted Nov. 18, 2020, S264978; accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142 (Galvan), review granted Oct. 14, 2020, S264284.)
A jury's special circumstance finding shows, as a matter of law, that a defendant could still be convicted of murder under the new definition; thus, preventing a defendant from making a prima facie case that he is eligible for resentencing under section 1170.95. (Murillo, supra, 54 Cal.App.5th at p. 167; Galvan, supra, 52 Cal.App.5th at p. 1141 ["Because a defendant with a felony-murder special circumstance could still be convicted of murder, he is ineligible as a matter of law to have his murder conviction vacated."]; People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez), review granted Oct. 14, 2020, S264033; accord, People v. Jones (2020) 56 Cal.App.5th 474, 482 (Jones), review granted Jan. 27, 2021, S265854 ["A defendant with a special circumstance finding under section 190.2, subdivision (d) is not eligible for relief under section 1170.95 as a matter of law."]; People v. Nunez (2020) 57 Cal.App.5th 78, review granted Jan. 13, 2021, S265918 [same]; People v. Simmons (2021) 65 Cal.App.5th 739, 749, review granted Sept. 1, 2021, S270048 ["We find more persuasive those cases holding that a special circumstance finding precludes relief as a matter of law."]; contra, People v. Law (2020) 48 Cal.App.5th 811, 825 , review granted July 8, 2020, S262490 [Where the same panel of this court that rendered the decision in Jones held that "the trial court erred by concluding the special circumstance finding, on its own, rendered [defendant] ineligible for relief . . . ." ]; People v. Smith (2020) 49 Cal.App.5th 85, 94 (Smith), review granted July 22, 2020, S262835 [some special circumstance findings will not preclude § 1170.95 eligibility as a matter of law]; People v. York (2020) 54 Cal.App.5th 250, 258 (York), review granted Nov. 18, 2020, S264954 ["[A] pre-Banks and Clark special circumstance finding cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law . . . ."].)
Here, the jury rendered a true finding on a robbery-murder special circumstance. Thus, the jury's finding even under current law, would render defendant ineligible for relief pursuant to section 1170.95. We agree with the Gomez, Galvan, Murillo, and Jones line of cases and hold that the jury's robbery-murder special circumstance finding in this case necessarily established, at minimum, as a matter of law, that defendant was a major participant who acted with reckless indifference to human life. Thus, the trial court properly dismissed defendant's petition.
Despite the jury's robbery-murder special circumstance finding, defendant contends the evidence is insufficient to support a finding that he was a major participant in the robbery who acted with reckless indifference to human life under Banks and Clark, which were decided after the judgment in his case. He therefore asserts he may maintain a challenge to the sufficiency of the evidence to support those findings in his section 1170.95 proceedings. We disagree.
A number of cases have found that "the proper remedy for challenging a special circumstance finding is by a petition for habeas corpus, not a petition for resentencing under section 1170.95." (Galvan, supra, 52 Cal.App.5th at p. 1137; see Murillo, supra, 54 Cal.App.5th at pp. 167-168; Gomez, supra, 52 Cal.App.5th at p. 17; Jones, supra, 56 Cal.App.5th at pp. 483-484 ["'Jury instructions regarding the mental state required for a felony-murder special circumstance are not defective if they do not include the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding major participation and reckless indifference remains the same as it was before Banks and Clark.'".]) Petitioners like defendant "'had the same incentive' at their original trials to attempt to minimize their involvement in the robbery and their culpability for the killings as they would have had if their trials 'had taken place after Banks and Clark.' [Citation.] In short, Banks and Clark did not significantly narrow the definitions of 'major participant' and 'reckless indifference,' and there is no basis for concluding that [defendant's] jury was asked to resolve different factual issues than a correctly instructed post-Banks/Clark jury would be asked to resolve." (Jones, at p. 484.) We agree with Gomez, Galvan, Murillo, and Jones and hold that the proper procedure of challenging a felony-murder special circumstance finding is a petition for writ of habeas corpus. Thus, the trial court properly denied defendant's petition for resentencing summarily.
We acknowledge the contrary holdings in Smith and York, which would allow defendants to challenge the validity of special murder circumstance findings that predated the Banks and Clark decisions, by requiring the People to prove, once again, the special circumstances beyond a reasonable doubt. We simply disagree that the language of section 1170.95 provides defendant an opportunity to relitigate special circumstance findings because of the clarification of the requirements for those findings in Banks and Clark.
III. DISPOSITION
The order denying defendant's petition is affirmed.
We concur: FIELDS J., MENETREZ J.