People v. Milberger CA2/5

Filed 10/28/21 P. v. Milberger CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305968
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A561270)
v.
BERNARD MILBERGER, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stanley Blumenfeld, Jr., Judge. Reversed.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Much has changed in the law since the trial court denied
defendant and appellant Bernard Milberger, Jr.’s (defendant’s)
Penal Code section 1170.95 petition without first appointing
counsel to represent him.1 Our Supreme Court decided People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), which (among other things)
holds a trial court must appoint counsel for a section 1170.95
petitioner upon the mere filing of a facially sufficient petition.
(Id. at 957.) The Governor also approved Senate Bill No. 775
(2020-2021 Reg. Sess.) (SB 775), which is intended to codify the
aforementioned holding in Lewis and makes further changes to
section 1170.95 procedure.2 (Stats. 2021, ch. 551, §§ 1(b), 2.) We
consider whether to reverse in light of Lewis’s view on
appointment of counsel or to instead affirm, as the Attorney
General argues, on the theory that any error in denying
defendant’s uncounseled section 1170.95 petition was harmless.
I
A trial jury convicted defendant in 1983 of special
circumstance murder, with the special circumstance being a
1
Undesignated statutory references that follow are to the
Penal Code.
2
The changes worked by SB 775 take effect at the start of
2022. If we were to affirm, there is no realistic prospect
defendant’s conviction would be final by that time. (People v.
Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325 [“‘State
convictions are final “for purposes of retroactivity analysis when
the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari
has elapsed or a timely filed petition has been finally denied.”
[Citations]’”].)
2
killing in the attempted commission of a robbery. The
prosecution’s evidence at trial established defendant and an
accomplice attempted to rob a liquor store and defendant fatally
shot the store manager with a shotgun; the defense, which the
jury rejected, was alibi.
In finding defendant guilty of first degree murder, the jury
found true an associated personal use of a firearm allegation.
The jury also convicted defendant of attempted robbery and
found true firearm allegations associated with that charge. The
trial court sentenced defendant to life without possibility of
parole, plus a determinate term for the attempted robbery offense
that does not matter for our purposes.
Another panel of this court affirmed the convictions on
direct appeal. Among the rejected arguments for reversal was an
argument that the felony murder special circumstance was infirm
because the jury was not instructed it must find defendant had
the intent to kill. This court’s opinion agrees there was a failure
to so instruct the jury but finds the omission harmless because
the record, in the court’s view, indicated the parties recognized
intent to kill was in issue, the parties presented all evidence at
their command on that issue, and the record established the
necessary intent as a matter of law. Specifically, this court’s
opinion maintains an instruction the jury received on aiding and
abetting was “tantamount to a recognition by the parties that
intent to kill was in issue” and then concludes there
“presumably . . . was no other evidence on the issue of intent”
because defendant did not testify and presented only an alibi
defense. This court’s opinion further holds intent to kill was
“established as a matter of law” because defendant admitted
shooting the victim, the shooting occurred at close range, and
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“[n]o contrary evidence on this issue was introduced, other than
the alibi defense, which the jury did not believe.”
Some three-plus decades later, defendant filed a section
1170.95 petition. Via boxes checked on a form petition, defendant
asserted he was convicted of felony murder and could not now be
convicted because of amendments made to section 189 that took
effect in January 2019. Specifically, defendant asserted he was
not the actual killer; did not, with intent to kill, aid and abet the
actual killer; and was not a major participant in the felony or act
with reckless indifference to human life during the course of the
felony. Defendant also requested the court to appoint counsel to
represent him.
The trial court “summarily denied” defendant’s petition
without first appointing counsel. The trial court’s denial order
relied on this court’s prior opinion resolving defendant’s direct
appeal and reasoned the holding that defendant’s “intent to kill
was established ‘as a matter of law’ defeats the petition.”
Specifically, the trial court concluded that “[b]ased on the record
of conviction, [defendant] was the actual killer who shot the
victim with the intent to kill him. This court is bound to accept
that determination as found by the appellate court in this case.
[Citations.] In light of this determination, the court must
summarily deny the petition.”
II
The bulk of the Attorney General’s briefing is devoted to
arguing section 1170.95 did not require the trial court to appoint
counsel for defendant before ruling on his section 1170.95
petition. That is now water under the Lewis bridge, and changes
made by SB 775 only serve to further confirm appointing counsel
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was required. (Lewis, supra, 11 Cal.5th at 957 [“[W]e conclude
that the statutory language and legislative intent of section
1170.95 make clear that petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition [citation] and that only after the appointment of counsel
and the opportunity for briefing may the superior court consider
the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief’”];
see also Stats. 2021, ch. 551, §§ 1(b), 2.) We are accordingly left
with only one real question: whether to affirm, notwithstanding
the trial court’s erroneous refusal to appoint counsel, because the
error was harmless.
We decline to affirm on harmlessness grounds. The impact
appointed counsel might make in a case like this can be
significant because the appellate record does not show section
1170.95 eligibility is an open and shut case when considered in
light of the provision in section 1170.95 that allows a petitioner to
come forward with new evidence not introduced during trial.
(§ 1170.95, subd. (d)(3); see also People v. Murillo (2020) 54
Cal.App.5th 160, 173, review granted Nov. 18, 2020, S264978 [“If
as a matter of law the record of conviction shows . . . that the
defendant was a major participant who acted with reckless
indifference to human life, and the defendant does not claim he
has new evidence to present, he has not made a prima facie case”],
italics added.) To be sure, a court may rely in some circumstances
on statements made in a prior appellate opinion (Lewis, supra, 11
Cal.5th at 972), but the hedge words in this court’s prior opinion
resolving defendant’s direct appeal—e.g., there “presumably” was
no other evidence of intent—rather obviously reveal there may be
arguments or new evidence available to an appointed attorney
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that would present a stronger case for section 1170.95 relief.
That possibility leaves us lacking the requisite confidence that
the result would be no different if counsel were appointed. (Id. at
974 [“[A] petitioner ‘whose petition is denied before an order to
show cause issues has the burden of showing “it is reasonably
probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing”’”].)
DISPOSITION
The order denying defendant's section 1170.95 petition is
reversed and the matter is remanded with directions to appoint
counsel for defendant and to proceed, on or after January 1, 2022,
consistent with the pertinent provisions of section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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