People v. Miller CA4/1 ( 2023 )

Filed 7/20/23 P. v. Miller CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080999
Plaintiff and Respondent,
v. (Super. Ct. No. SCE249592)
ARTHUR LEE MILLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
Arthur Lee Miller, in pro. per.; Patrick Dudley, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Arthur Lee Miller shot James E. in the back of the head, killing him.
Miller then approached and pointed his gun at Richard A. Richard ran as
Miller pursued him. Miller tried to shoot Richard several times but his gun
would not fire. On November 18, 2005, a jury convicted Miller of second
degree murder (count 1; Pen. Code,1 § 187, subd. (a)) and attempted
voluntary manslaughter (count 2; §§ 664 & 192, subd. (a)). The jury also
found true that Miller personally used a handgun in the commission of both
crimes (§ 12022.5, subd. (a)), personally used a handgun in the commission of
the attempted voluntary manslaughter (§ 12022.53, subd. (b)), and
intentionally discharged a handgun in the commission of the murder which
proximately caused great bodily injury and death (§ 12022.53, subd. (d)). The
trial court sentenced Miller to a total prison term of 55 years, six months to
life. This court affirmed the judgment on direct appeal. (People v. Miller
(Dec. 21, 2007, D048704) [nonpub. opn.].)
In 2022, Miller petitioned for resentencing under section 1172.6 (former
section 1170.95). After appointing counsel for Miller, the trial court held a
hearing and denied the petition based on Miller’s failure to make a prima
facie case for relief. (§ 1172.6, subd. (c).) The court stated:
“The Court finds, Mr. Miller, that you have not established
prima facie evidence showing that you’re entitled to relief.
You were the only suspect involved in this crime. The jury
found that you personally killed the victim when they
found you to personally and intentionally discharge a
firearm, causing the victim’s death. You were the only
participant in the murder and you yourself intentionally
fired the gun, causing the victim’s death. You’re not
entitled to relief as to that charge.
“As to the jury finding you guilty of attempted voluntary
manslaughter, this petition is not applicable. The statute
does not apply to attempted manslaughter; so, therefore,
the petition is denied.”
Miller appealed, and we appointed counsel to represent him. After
examining the record, counsel filed an opening brief asking that we exercise
1 Undesignated statutory references are to the Penal Code.
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our discretion to independently review the record for error pursuant to People
v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel identified two
possible issues: “Was the trial court’s statement a recollection of the trial
proceedings contrary to People v. Lewis (2021) 11 Cal.5th 952 (Lewis) or a
factual statement summarizing the jury verdict?” And, “[a]ssuming the
former, was it prejudicial?” (Id. at pp. 970–975.) We invited Miller to submit
a supplemental brief. He did, arguing he suffers from an intellectual
disability preventing him from forming the specific intent to commit second
degree murder. We find the record shows Miller is not entitled to relief under
section 1172.6, and we affirm the trial court’s order denying the petition for
resentencing.
DISCUSSION
Standard of Review
In reviewing trial court findings under section 1172.6, we apply the
substantial evidence standard of review. (See, e.g., People v. Clements (2022)
75 Cal.App.5th 276, 298; People v. Garrison (2021) 73 Cal.App.5th 735, 747).
Substantial evidence is defined as evidence that is reasonable, credible, and
of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Johnson
(1980) 26 Cal.3d 557, 576–578; Jackson v. Virginia (1979) 443 U.S. 307, 318–
319.)
Substantial Evidence Supports the Trial Court’s Denial of the Petition.
A. Legal background
Senate Bill No. 1437 (Reg. Sess. 2017-2018), which became effective on
January 1, 2019, “amend[ed] 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
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underlying felony who acted with reckless indifference to human life.” (Stats.
2018, ch. 1015, § 1, subd. (f).) 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.)
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.)
B. Analysis
In reviewing the record of conviction for a section 1172.6 petition, the
trial court may examine, among other items, the charging document (People
v. White (2014) 223 Cal.App.4th 512, 524–525), jury instructions (People v.
Offley (2020) 48 Cal.App.5th 588, 599) and verdict forms (People v. Ervin
(2021) 72 Cal.App.5th 90, 106). The record of conviction here shows Miller is
the only person charged in the case. The court instructed on a single second
degree murder theory—that Miller unlawfully killed a human being with
both malice aforethought and the intent to kill. The jury convicted Miller of
it, finding true additional allegations involving the personal discharge and
use of a firearm. (CALJIC No. 8.30.)
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The court did not give any jury instructions on principals, aiders and
abettors, felony murder, natural and probable consequences, conspiracy,
target and nontarget offenses, or any other theories of imputed malice. The
record of conviction establishes the jury convicted Miller as the actual killer
who acted with an intent to kill rather than for any type of imputed malice
theory. (See People v. Garcia (2022) 82 Cal.App.5th 956, 973 [where record of
conviction “unequivocally establishes that defendant was the ‘actual killer,’ ”
defendant is not entitled to relief under section 1172.6 as a matter of law].)
Any statement by the trial court denying Miller’s petition merely
summarized the jury’s second-degree murder verdict and the attendant
allegations the jury found true.
Miller contends the trial court erred when it denied his petition
because he suffers from an intellectual disability that prevented him from
forming the specific intent to commit second degree murder rendering his
guilty verdicts invalid. This contention is unrelated to the denial of Miller’s
resentencing petition. Substantial evidence supports the trial court’s ruling
that Miller suffered convictions for offenses not within the purview of section
1172.6.
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DISPOSITION
The order denying defendant’s Penal Code section 1172.6 petition is
affirmed.
RUBIN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
CASTILLO, J.
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