People v. Miller CA6

Filed 2/15/22 P. v. Miller CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047367
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 81500)
v.
LOVE JOY MILLER,
Defendant and Appellant.
MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of
Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002)
97 Cal.App.4th 847, 853–855.)
Defendant Love Joy Miller was convicted by plea in 1982 of murder (Pen. Code,
§ 187) and two counts of attempted murder (Pen. Code, §§ 187, 664). According to
testimony from a partial preliminary hearing transcript in the record on appeal, defendant
and another person were involved in an incident at a home where two victims were shot
and one of those victims was also stabbed. The victim who was both stabbed and shot
testified that defendant stabbed him and someone else was the shooter. The other victim
died from the gunshot wound. There was no evidence defendant was armed with a
firearm during the incident, or that he was the shooter. Defendant was sentenced to an
indeterminate term of 25 years to life in prison.
Defendant petitioned for resentencing under Penal Code section 1170.95 in 2019.
Defendant averred in a supporting declaration that the underlying complaint charged him
with murder under a felony murder or natural and probable consequences murder theory;
that he pleaded guilty or no contest to murder because he believed he could have been
convicted of murder under a felony murder or natural and probable consequences murder
theory; and that he could not now be convicted of murder due to changes to Penal Code
sections 188 and 189 because he was not the actual killer, did not aid or abet the actual
killer, was not a major participant in the killing, and the victim was not a peace officer.
The trial court denied the petition after appointing counsel and holding a hearing, finding
that defendant had not made a “prima facie showing that the person petitioning was
convicted of felony murder or murder under a natural and probable consequences
theory.”
When deciding whether a petitioner has stated a prima facie case for relief under
Penal Code section 1170.95, “ ‘ “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.” ’ ” (People v. Lewis (2021)
11 Cal.5th 952, 971.) The trial court may look to the record of conviction in deciding the
prima facie question, but the court “ ‘should not reject the petitioner’s factual allegations
on credibility grounds without first conducting an evidentiary hearing.’ ” (Ibid.)
The People concede, and we agree, that defendant made a prima facie showing for
relief under Penal Code section 1170.95 because the record of conviction does not
demonstrate that defendant is ineligible for resentencing. As nothing in the record
precludes defendant from relief as a matter of law, the trial court should have issued an
order to show cause and conducted an evidentiary hearing under Penal Code
section 1170.95, subdivision (d).
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DISPOSITION
The order denying defendant’s Penal Code section 1170.95 petition is reversed.
The matter is remanded to the superior court with directions to issue an order to show
cause and hold an evidentiary hearing to determine whether to vacate defendant’s murder
conviction, recall his sentence, and resentence him (Pen. Code, § 1170.95, subds. (c),
(d)).
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H047367 – The People v Miller